The Electoral College: Its Hour Come Round at Last?

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elections, The Constitution

It’s enormously unlikely that the current Russian hacker flap is going to stop Donald Trump from being inaugurated, but if he is stopped, it’s my understanding it can only happen in the Electoral College. So let’s take a look.

Why Is There an Electoral College? The Founders were opposed to electing presidents by popular national vote, mostly because they figured each state would just vote for its own “favorite son.” They considered having presidents chosen by Congress or by state legislatures. They finally settled on Electors, however, who were supposed to be really smart guys who would choose a president based purely on merit, and without consideration of partisan politics.

The best sense of what the Founders were thinking might be gleaned from Alexander Hamilton’s Federalist #68, in which he expounds in his overwritten way that

It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

Hamilton goes on to explain that each state would somehow choose a committee of electors who would convene only once, for one purpose only, and that is to choose a president. In this way this crew would be less subject to being bribed or being under the influence of foreign powers.

The Constitution didn’t specify how the states chose their Electors. I understand that, at first, most of the time they were chosen by state legislatures.

How Was the Electoral College Supposed to Function? In the original wording in the Constitution, Electors were to vote for two people, at least one of whom was not from his state. Then as now, the Electors don’t meet in one place, but within their own states, to vote. The votes were sent in a sealed envelope to the President of the Senate (who would be the sitting Vice President). The votes were to be counted in front of the Senate and House of Representatives. In brief, whoever got the most votes was POTUS and whoever came in second was VPOTUS.

Well, that didn’t last long.  The 12th Amendment, ratified in 1804, provides that Electors vote separately for a president and a vice president. It also provides that if no one candidate receives a majority of all votes (currently the magic 270 number), the House of Representatives chooses the POTUS from among the top three contenders, and the Senate chooses the VPOTUS.

Other than the original provision of voting for one person not from their states, the Constitution places no restrictions on the Electors about whom they can vote for, other than the qualification requirements:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

One little archaic constitutional vestige I did not know — to this day, an Elector cannot vote for a president and vice presidential candidate from his own state. One candidate is okay, but not both. So if both the presidential and vice presidential candidates were from Pennsylvania, for example, the Pennsylvania Electors would have to abstain.

And that’s where the U.S. Constitution stands on the matter of the Electors and choosing a president.

The Electoral College Today. Today,  of course, people vote for presidential candidates, and then Electors go through the motions of choosing the POTUS as outlined in the 12th Amendment. That way of doing things evolved pretty quickly in the 19th century, rendering the Electoral College vote into a meaningless, archaic ritual. Lots of amendments have been proposed to get rid of the Electoral College. Obviously, none have gotten very far.

The Electors are chosen by the parties, usually in state party conventions. Some are chosen by state party central committees. A handful of states use other methods — they are appointed by the governor, for example, or even appointed by the presidential nominee him- or herself. The point is that they are people chosen not for their wisdom, but for their loyalty to the party.

There are two aspects of today’s Electoral College that are problematic.

One is the “winner take all” method of choosing Electors that all but two states have adopted. This is not in the Constitution at all, and it’s this factor that makes it mathematically possible for one candidate to have a respectable popular vote majority and still lose the Electoral College. If the Electors were chosen in a proportional way, that’s much less likely to happen. Lawrence Lessig has been arguing that the “winner take all” thing is unconstitutional. However, his argument is based on the Court’s “reasoning” in Bush v. Gore, and there are those who don’t buy it.

Still, while we may be stuck with the Electoral College itself — the less populated states like it, because it gives them a disproportional voice in presidential elections — if someday the winner-take-all practice could be done away with, the Electoral College would more accurately reflect the popular vote.

The other “new” aspect is the binding of the Elector’s votes. Twenty-nine states have made it a felony for an Elector to go rogue and not vote according to his state’s vote. In practice, such “faithless” Electors are very rare and are usually only given a small fine, but they could be penalized more harshly.

Over the years, many constitutional scholars have said that the state “binding” laws are blatantly unconstitutional, and that the Electors must be free to vote as they choose. It was clearly the intent of the guys who wrote the Constitution for the Electors, not the people by popular vote, to choose the president. And while we may think that’s stupid, it hasn’t been amended. The Constitution still says that.

And it was also the clear intent of the guys who wrote the Constitution for the Electoral College to be a bulwark against “cabal, intrigue, and corruption,” as Hamilton put it:

These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?

This is the very corruption that the Electoral College is supposed to prevent. The masses of the people may be swayed by passions fired up by demagogues, but the wise and level-headed Electors are supposed to be the ones who make the final decision. Or that’s how the Founding Guys imagined it would work, anyway.

If there was ever a time for the Electors to carry out their Constitutional duties and make their own choice for POTUS, this would be it. And if they don’t, then the Electoral College really has utterly failed in the duty it was given.

Blocking Trump wouldn’t necessarily give the election to Hillary Clinton, since the Electors can vote for anybody. If enough of them voted in a way that denied the majority to Donald Trump — say, by choosing Gary Johnson —  the election would go to the House. The House must choose among the three top vote getters. And since we’re talking about the House, that wouldn’t be Clinton. But maybe it wouldn’t be Trump, either.

(For an interesting take on what a mess that could turn out to be, see “Deadlock: What Happens If Nobody Wins” by Laurence H. Tribe and Thomas M. Rollins, from the October 1980 Atlantic.)

I’m hearing a lot of talk on social media that maybe a court could void the election. Courts have voided Senate elections a couple of times, apparently. But I don’t think any court would touch this mess with a thousand-foot pole, especially since the Constitution provides for the Electors or the House to make the final decision in the case of presidents. (And there is no provision whatsoever for re-doing an election, for any reason, which is another rumor I saw somewhere. )

The Electoral College vote is scheduled for Monday, December 19. Chances are Trump will at least get his 270 votes and be inaugurated. But we can dream …

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28 Comments

28 Comments

  1. paradoctor  •  Dec 12, 2016 @1:18 am

    Fictitious tweet from Trump to Hamilton:

    Hey Alex, your EC making me Prez, tho I got minority, don’t want do job. Sad! Your loser EC better clean up its own mess, or you’re fired!

  2. Doug  •  Dec 12, 2016 @11:08 am

    We don’t know. I understand there are sophisticated behind-the-scenes intrigues in contacting members of the EC now. There’s a legal team offering Constitutional counsel to members of the EC. The cabinet selections are cause for alarm among republicans for the lack of pros included. Trump has a panel of billionaires and generals. Chris Christie and Mayor Rudy were kicked tot he curb for their loyalty. The approach to Governor Romney was a cruel photo-op to demonstrate Trump’s power to offer to and withhold from his rival a prize. Most critically, Trump’s confrontation with China over Taiwan underscores Trump’s willingness to engineer a major realignment which will cost Wall Street dearly. A lot of major corporations are heavily invested in manufacturing in China. The dust-up between Boeing and Trump was reportedly over the CEO of Boeing criticizing a policy which would trigger a trade war that seems to be on Trump’s agenda.

    SO we don’t know. The EC was selected when they were expected to be a rubber stamp for the popular vote. Since then, a lot of republicans have been kicked in the crotch by Trump. Powerful entities on Wall Street have been upended, while others have been empowered. But the political dynamic is unprecedented. Only 37 electors need to defect, and I understand 2 have publicly announced their intent to do so. This is the time to make noise in social media that there are strong reasons for republican members of the EC to do their duty and override a bad decision.

  3. c u n d gulag  •  Dec 12, 2016 @11:41 am

    I don’t dream much anymore.
    I have ever more frightening nightmares, though!

    Like t-RUMP nominating and Exxon guy for SoS.
    WHAt?
    HE DID!!!
    GAAAAAAAAAAAAAAAAAAAAAAAAAAAAACK…

  4. Billikin  •  Dec 12, 2016 @12:58 pm

    “Slouching towards Manassas” (!?)

    I know, it doesn’t quite fit, but I think it sounds better. 😉 Also, it is a battle site.

  5. maha  •  Dec 12, 2016 @5:13 pm

    The “slouching” line is from a W.B. Yeats poem. Originally the slouching was toward Bethlehem. http://www.mcabee.org/~lcm/lines/slouch.html

  6. Bill Bush  •  Dec 12, 2016 @1:07 pm

    Since we don’t, as a matter of course, even know who the electors for our states are, as they do not run for the position and make no public appearances as electors that I know of, it seems to me we are already in the hands of mystery and intrigue. I am going to Google NC electors and see who they are, since I have now brought up the topic.

  7. Bill Bush  •  Dec 12, 2016 @1:13 pm

    And here they are: people I don’t know. NORTH CAROLINA (GOP)
    352. Linda Harper
    353. Charles Staley
    354. Karen Kozel
    355. Martha Jenkins
    356. Celeste Stanley
    357. Donald Webb
    358. Robert Muller
    359. Jennifer Dunbar
    360. Andrea Arterburn
    361. Glenn Pinckney Sr.
    362. Mark Delk
    363. David Speight
    364. Ann Sullivan
    365. Lee Green
    366. David Smuski
    Some of the names sound familiar a bit, but it will take some Google work.

  8. grannyeagle  •  Dec 12, 2016 @1:29 pm

    “Only 37 electors needed to defect”. Sounds like an impossible dream to me.

  9. Doug  •  Dec 12, 2016 @3:12 pm
  10. LongHairedWeirdo  •  Dec 12, 2016 @3:36 pm

    This is an interesting thing. This is really the last chance for the Republicans to do the right thing for the nation and reject Trump. But they won’t.

    As Obama has intimated, there *are* Republicans who talk like wingnuts but aren’t, and know damn well that the wingnuts are a true danger to our nation. But they don’t dare cross the wingnuts – they need the votes, and won’t win without them.

    Well, now they held the Senate – they no longer need to be pro-Trump to avoid losing *other* elections. They don’t need the votes any longer. So now there’s no excuse.

    Thing is: they won’t. They’re not out for the good of the nation; they’re out for personal power and glory and money and whatever-else. And when they refuse to lobby electors, this will be the final proof. Oh, they might tell themselves that they didn’t want to undermine the national election or something but anyone looking at the dangers of an incompetent, uninformed president (ref: Incurious George, known for reading My Pet Goat while NY burned) can see that something must be done.

  11. Doug  •  Dec 12, 2016 @6:38 pm

    An interesting potential twist – Electors Request Inteligence Briefing – before vote.

    http://crooksandliars.com/2016/12/electors-request-intelligence-briefing

  12. otto  •  Dec 12, 2016 @9:31 pm

    (deleted by maha for being exhausting)

  13. maha  •  Dec 12, 2016 @10:28 pm

    Please, otto, I’m too exhausted to read all that. Way too much detail. Try to boil it down to fewer than 200 words and try again.

  14. Swami  •  Dec 13, 2016 @1:01 am

    Well, I’m not putting my faith in electors defecting. I’m not even expecting divine intervention..But I am believing in divine retribution..I think Trump has already sown the seeds of his own destruction. His game playing is slowly being exposed and I think it’s starting to wear thin. The office of the presidency is going to put a clamp on his style and antics.
    I see the Chinese have already accurately identified his Crazy Joey routine and have put him on notice that two can play that game. And when it comes to unpredictability and shaking things up… he could end up the big loser.
    I wouldn’t be surprised if the Chinese usurp his inauguration glory and deny him the afterglow of victory come January 20th with some severe saber rattling or other actions that threaten American interests. Start him out in crisis and some serious decision making where he doesn’t have the luxury of creating is own reality.
    Some you might have sensed a wee bit of animosity toward Trump coming from me in my comments. I can’t deny that your perceptions are correct no matter how well I try to mask it. Under different circumstances Trump would probably be a wonderful guy who I could enjoy sitting around with and rating women and sharing tales my sexual exploits. But as President he’s an abomination. I mean like a big bag of shit type of abomination.

  15. Swami  •  Dec 13, 2016 @2:22 am
  16. paradoctor  •  Dec 13, 2016 @11:11 am

    Swami: I sympathize with your belief that the orange conman will ultimately con himself; but I remember thinking much the same about W up through 9/10/2001. On 9/12 I saw him on TV, giving a speech and looking way over his head. I shook my own head. I thought, ‘He will lose, and take us with him.” I was right.
    I say we give him a little push. So come Inauguration Day, assuming that the electors don’t do their job right and elect him instead, I plan to have IMPEACH TRUMP signs up in my window and my car.

  17. Bill  •  Dec 13, 2016 @7:20 pm

    Nice Pics. There’s a chance this whole thing’s been some kind of demented end-of-life prank and we will be seeing The Con-ald increasingly doing The Queen / Corporal Klinger until he’s finally kicked out. Haha buncha stupid citizens you’ve all been punked, yuge!

    If there’s anything I liked about the Con-alds campaign, it was that he said some of what needed to be said – that DC is mostly self-serving and corrupt and that a lot of people regardless of station or persuasion pretty much know it by now. No more hiding that shit under the freedumb libirdy guns-for-unborn rug.

    I’m guessing maybe half his supporters still want their swamp-free DC, Mexican wall, or Hillary lockup reality TV show, regardless of what he wears. (Forget about the kooks who’d believe that Donald in drag is part of God’s plan, or wingnut bloggers you know’d be spinning convoluted posts blaming Obama for such a thing. Those folks all went round the bend of sanity long ago.) I won’t be letting the saner Trumpsters live this one down.

  18. Swami  •  Dec 14, 2016 @3:08 am

    Hey, if anybody has an extra $50,000. dollars laying around Ivanka is auctioning off 45 minutes of her own time for a one on one coffee klatch. The proceeds from the auction will go to Eric Trump’s charitable foundation. Isn’t that wonderful? Surely goodness and mercy shall follow them all the days of their lives. Oh, the $50,000. is just the opening bid so make sure to check your couch cushions for any loose change.
    Already they’re starting to feed on the carcass of the office of the Presidency.

  19. bernie  •  Dec 14, 2016 @9:38 am

    An Ode for Sanity, Bill, and much appreciated.

  20. Bonnie  •  Dec 14, 2016 @9:41 pm

    Who da thought we would get a President-elect who makes Richard Nixon look like a saint and George W. Bush look like a genius.

  21. Swami  •  Dec 14, 2016 @9:58 pm

    Who da thought we would get a crotch grabbing pathological liar that would make Narcissus appear to have low self esteem.

  22. bernie  •  Dec 15, 2016 @10:28 am

    Sociopath the man is.  Swami called it.  The problem is those absurd diagnostic labels are more a hindrance than a help.  It is more an ID tag than anything.  At a basic level psychological problems are of two types.  Those which distress the one with the problem and those which distress those around the one with the problem. With sociopaths the later is certainly the case.  A large percentage of the country seems to be in constant distress.  We are going to have to find a way to manage it, deal with it, endure it.  Time to build an asylum, a place real or imaginary that isolates this stressor as much as possible.  He is wreaking the mental health of so many. 

    Al Franken noted agent caos just does not seem to ever laugh.  Now that he mentions it he does not.  See, now that’s distressing too.  Put that one behind the wall too.
     
    Read how we are losing the post cold war, cold war.  As an accompaniment you might listen to Miley.

    https://www.bing.com/search?q=miley+cyrus+wrecking+ball&form=EDGNTC&qs=LS&cvid=31a81dbb95ea4185994052d5cbe7cfde&pq=miley

    https://www.washingtonpost.com/world/europe/the-kremlin-likes-the-hacking-attention-but-not-the-blame/2016/12/14/65279738-c177-11e6-92e8-c07f4f671da4_story.html?hpid=hp_hp-top-table-main_kremlin-530pm%3Ahomepage%2Fstory&utm_term=.b929cbda5085

  23. Justin  •  Dec 17, 2016 @2:13 am

    I feel like you left out the best parts of Federalist #68, where it’s made clear that Hamilton and the other founders did not trust the population to make the right choice—they believed that the electors would be able to insure that only a QUALIFIED person becomes President. They saw it as a buffer on an electorate that might be duped or manipulated, and they worried about foreign influence.

    Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union?

    The process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.

    The thought was that if an inexperienced, dangerous or unqualified candidate won the popular vote, the EC could overrule the will of the people. The current situation, the inexperienced, dangerous and unqualified candidate *lost* the popular vote—there’s never been a better example of a time electors should vote against a candidate.

    If the EC can’t fulfill this most important of roles at the most important time, it’s truly a useless institution. However, I’m not holding my breath.

  24. Justin  •  Dec 17, 2016 @2:16 am

    Sorry, my page didn’t load all the way and I didn’t see the entire post until I refreshed—you did point out all of those exact things. Nevermind lol

  25. paintedjaguar  •  Dec 17, 2016 @5:25 pm

    OK, so youse guys want the electors to overthrow Trump.. and do what exactly? Just please, please don’t try to sell the notion that installing Empress Hillary and furthering a Clinton dynasty would represent either “the good of the country” or “the will of the people”.

  26. maha  •  Dec 17, 2016 @6:48 pm

    paintedjaguar: Your question is already answered in the post. Please read posts before commenting on them. Thank you.

  27. paintedjaguar  •  Dec 18, 2016 @9:14 am

    I did read it, but regardless of the letter of the law, I don’t believe in any wide-open scenarios. That isn’t how US politics work. And what do your other readers think would be a more desirable outcome than what we’ve got? Were there any better choices among the recent slate of Republican candidates? I don’t think so.

  28. guest  •  Dec 20, 2016 @4:21 am

    I fear that the poem from which that line is taken will be most accurate..



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