Liberal friends, Hillary supporters, and countrymen/women, I come to you today to bring you one simple message: the Electoral College is your friend. It is not a useless anti-democratic appendage from yesteryear. In fact, it is the 4th branch of government. Not many people know much about it, much less understand it. This includes various modern day Congresses, presidential campaign managers, former presidential candidates, former presidents and presidential candidates who once lectured in Constitutional Law, pundits with advanced degrees in political science, and even political journalists on Websites named after an aspect of the Electoral College itself! So, if you feel “schooled”, you are in outstanding company. This is wonky for sure, but important, so caffein up and read when ready.
The Basics
For the record, there are 538 total electoral votes to be cast for president. The states get one electoral vote for every elected Congressional representative they have. The Constitution requires that the winner have a majority of those votes (270 or more). A mere plurality of the electoral college vote sends the election to the House of Representatives to decide, and in that case each state gets only one vote. Also, the House of Representatives has to ratify the Electoral College vote. It should be noted that the Office of the Federal Register is actually responsible for reviewing the legal sufficiency of the certificates before the House and Senate accept them as evidence of official State action.
For your information, the Electoral College electors do not meet in Washington, DC. By in large they meet at their respective state capitol building to vote. The states can allocate their Electoral College votes however they wish, as long as it is Constitutionally sound. In the past, state legislatures have voted for electors, in NJ the governor used to select them. Today, Nebraska and Maine allocate two electoral votes to the state’s popular vote winner, and then, one each to the popular vote winner in each Congressional district in their state.
On your voting ballot, you actually vote for Electoral College electors - not necessarily their favored candidates, or your favored candidate. These electors are usually strong supporters of a particular candidate, and are usually chosen by the state political party, but this does not have to be the case. These are the people who are entrusted to use their judgement as party stalwarts to pick a president - or in the past, trusted by the state legislature or governor to pick a particular candidate. There are some states with laws that legally bind the state’s electors to vote according to the state’s popular vote under criminal penalty. However, these laws are likely unconstitutional, and to this date no one has been prosecuted under these laws even when electors have broken them.
The Federal Principle
Here’s the big newsflash: We're a federal democratic republic, which means, in part, that we are the united *states* of America. In this country, we require a *federal* political process -meaning that all the states together are part of that process. The federal principle is one of the fundamental structural principles of our Constitution. The proposals to abolish the electoral college are proposals to abolish the federal principle in presidential elections - to essentially *nationalize* them. All of our national elective offices are based on the federal principle—they are state based elections because we are a nation of states. Thus our national motto: E Pluribus Unum. That is why we have two senators per state and a number of representatives set for each state based on population size. It's also why, if the Electoral College fails to come up with a candidate with the majority of electoral votes, then each state gets only one vote in the House of Representatives to vote for a president. It’s also why each state has one equal vote to amend the Constitution. We want all states to know that the rules of the process will allow for a true possibility of their most pressing needs to be met, and avoid majoritarian tyranny. The Founders wanted shifting majority coalitions that rise and fall. If not, then states might actually secede from the union. United we stand. Divided we fall. Federalism still matters, and there is no popular swell of support to eliminate all these other mechanism not tied to simple popular votes.
Political Parties
Originally, the Founding Fathers wanted the Electoral College as a check on political parties. The Founders thought them evil for their proclivity to subvert the more general democratic will. They wanted a one party system, with top two vote-getters as President and Vice-President. The idea was to keep broadly appealing candidates, and stop demagogues. Parties bred corruption to stay in power by awarding jobs, contracts, and money. Electors came from their states with the sole purposes of electing a president and vice president.
Unfortunately, parties were inevitable, so they eventually formed, and eventually grew. Along came the 12th Amendment to the Constitution because if the electors voted along party lines then the president and vice president would get the same number of votes throwing the election to the House all the time. Additionally, the possibility of two heated rivals from different parties working together well as president and vice president was problematic. A little known fact is that when debating the 12th amendment the part of the amendment that would have required electors to be nominated by Congressional district was dropped. More about this later.
In modern times, the parties provided broadly popular candidates. The purpose of parties and their primaries was to provide money, logistical support, and organization to the candidates, while making sure they introduced them to the voters. The process ensured that they had at least some basic level of popularity among the people.
Today, however, parties aren’t nominating well. They are instead giving us broadly unpopular party nominees. Trump and Clinton were both seriously flawed candidates, as well as, the most widely unpopular in U.S. history. The parties are like titles for rent because presidential candidates don’t need much that they have to offer. The Republican party primary was plagued with low voter turnout and winner take all states. The Democratic primary was plagued with exclusionary registration requirements (which excluded infrequent voters, first time voters, and independents), great difficulty in voting in some states due to polling locations and times, and a large number of superdelegates weighing in before the primaries even started.
The Founders worried about parties and campaigns failing the citizens. They wanted the electoral college to pick people who could govern well, not those who could campaign well. They wanted a process of electing a president that was akin to the British parliamentary system’s choosing a prime minister, but instead they took the vote out of the hands of Congress to avoid corruption and gave i to the single purpose Electoral College. The electors would be chosen by their states and then exercise their judgement to pick a president and vice president. They wanted representative democracy - not direct democracy. They were acutely aware of the inflammatory nature of mobs from the French Revolution, and wanted representative government for that reason. The people would pick electors they thought shared their values and had good judgement, and then delegated them the responsibility to pick the president. Still to this day, we elect Congressmembers to exercise their values and judgment when deciding all kinds of weighty decisions (declaring war, to approving peace treaties, etc.).
This seems quite prophetic today when voter turnout drops because people are disgruntled, and even party regulars, and elites are overwhelmed by candidates who don't need their money or organizational help. This year it resulted in a campaign of personalities - not issues.
The Popular Vote
So, whenever there are elections that worry the establishment there is a subsequent cry for eliminating the Electoral College and implementing a straight national popular vote. The Senate and House Judiciary Committees have called the same small group of experts who understand our system, its roots and reasons, all in excruciating detail. For the last 40 years or so, these people walk them through the ramifications of all the various proposals and essentially talk them down off the proverbial ledge. Those experts are now septuagenarians, and the new crop doesn’t appear to be as knowledgeable and facile with U.S. political theory. I am not them, but I just am not finding this view in the media, much less accuracy in reporting/commenting on the Electoral College in the media, so I’m taking a stab at it.
The popular vote doesn’t quarantine election rigging. For example, currently roughly 39 of the 50 states are Republican controlled, and the Republicans have shown a strong penchant for disenfranchising voters. While disenfranchising voters in Ohio, Florida, and Wisconsin may perhaps swing the election using the current system, with a national popular vote all 39 states can pile on to disenfranchise even more voters. More importantly however, this behavior, or claims of election fraud in various pockets of America, could trigger a national recount - which could leave the election hanging well past the inauguration date; and/or the election would lose legitimacy, which is the whole point of having elections to begin with.
It’s also worth looking at the many other countries that have multiparty elections which give a disproportionate amount of power to small minor parties in close elections, and result in a post election period of having to form a governing coalition among the multiple parties. In the U.S. a candidate not from one of the two major parties has to actually win electoral votes, which is a much more difficult task than winning enough votes nationwide to swing a close election. If you’re still deeply traumatized about Hillary losing three crucial states by a relatively small number of votes, or Al Gore losing Florida, then a national popular vote may drive you clinically insane due to an enorus number of viable parties and candidates.
In 1968, segregationist Alabama governor George Wallace of the American Independent Party was the last candidate to win electoral votes. He got 46 and was 32 votes away from even the possibility of the election being decided in the House of Representatives. What he did do was push issues that had to be better addressed by the two major parties, but without throwing the country into political turmoil. Should the parties not address the issues they would eventually fail and be replaced, but more likely the parties would move to co-opt the minor party voters. And before my Green Party friends pipe up with “What about instant runoff elections?”, let me just say that throwing votes into a blender and mixing them up is no way to run a country. Sure, with three or four parties that may be fine, but how about 15, or 50, or 100 well funded, organized, and recognized parties? We could just have a national lottery to pick a president too with 300 million plus candidates, but that doesn’t mean it will produce good governance. It is also worth noting that in 1860 Lincoln won only 40% of popular vote and would have not won in a runoff.
Also noteworthy is that the National Popular Vote Interstate Compact is not constitutional. This is a plan to pass laws in enough state legislatures to form a binding interstate compact to guarantee the Presidency to the candidate that got the most popular votes in the country. It is true that states are allowed to pick electors however they wish under the Constitution, and that states may enter into interstate compacts on a variety of issues, but they cannot functionally eliminate the Electoral College without either passing an amendment to the Constitution, or by amending the Constitution in a Constitutional Convention. The Constitution explicitly reserves the power to have electoral colleges to the federal government by putting it in the Constitution, and it specifically enumerates how changes are to be made to the Constitution. The Constitution trumps the compact under the federal supremacy clause. Amendments are ratified by going through Congress with super majorities and have to be approved by 38 of the states. For instance, the states can’t have a compact among themselves to no longer send representatives to Congress in order to close down the House of Representatives. Let’s just say, that even if my legal reasoning does not ultimately prevail, I feel certain that the new Trump Supreme Court will find reasoning of their own to strike it down one way or the other.
How to Fix the Electoral College
The Founders wanted the Electoral College electors chosen by Congressional districts. The country slowly moved to a popular winner take all method instead. Some of the Founders pushed to have electors chosen by Congressional district, and tried to include the requirement in the Constitution itself, but they met with no success. Back then the most populous state had around 700,000 people in it. This is roughly the current size of a single Congressional district nowadays. The states are allowed to allocate their electors however they wish -with a few exceptions intended to prevent corruption. For instance, the electors can’t be currently elected members of Congress. So, states should pass laws allocating their electors by geographic contiguous districts well under 700,000 people. The electors should campaign to be elected, not the candidates. Then these people will do what was intended for them to do - thoughtfully pick the best candidate based on the values of their district using the judgement the people who voted for them believed that they possessed.
It is not unlike the current Democratic Party primary system minus the super delegates. On the other hand you have the Republican primary system that is more reflective of a winner take all approach which knocks out candidates way too early and allows the candidates to ignore a lot of smaller interests that should be used to cobble together enough electors to win.
Not a popular vote, but still a representative democratic one that would focus on issues and governance rather than personalities and showmanship.
The Electoral College Can Still Save the World
ATTENTION ELECTORAL COLLEGE DEMOCRATIC ELECTORS! Here’s the deal. The parties failed. They gave us two historically unpopular candidates. That’s a given. However, it’s the electors job is to pick the president. Political parties are mentioned nowhere in the Constitution. They don’t get to chose. The electors do. So, if the electors, for instance, think the Governor of Ohio John Kasich ought to be president, then President Kasich it is. Not my cup of tea, but a compromise choice. Someone with integrity, who isn’t going to actively solicit bribes from foreign powers or be beholden to them for releasing classified emails to help win election. Democratic electors will have to vote en masse for a Republican in order to get enough electors to reach the needed 270 votes. The Republican electors will come out when they know that Trump won’t win and punish them for their vote. Plus, Democratic electors voting for Hillary are wasting their vote since she will lose no matter what. Clearly, just depriving Trump of 270 votes will be insufficient, since the vote will go to the House and they will surely vote for Trump.
My proposal is a long shot, but the Electoral College, if nothing else, is the break-glass-in-case-of-emergency 4th branch of government. With global warming needing to be stopped or slowed immediately, and with the unprecedented amount of corruption and foreign influence that will be unlike anything seen before in U.S. history, and potential tyranny and oppression that will reach new lows, now my Democratic elector friends is the time to act.
It’s very important to consider the prescience of Founder Alexander Hamilton, and others who had seen Kings of England virtually on the payroll of other countries. They had foreign influence in their politics through the early days of the union. Specifically, Hamilton and others worried that corrupted individuals who are directly associated with a foreign state would become president. That’s why they required that the qualification that the president be a “natural born citizen”. Alexander Hamilton and John Jay felt that it would be wise to provide a strong check on allowing foreigners into the administration of our government. Specifically, the commander in chief shouldn’t allow the military to be handed over to any foreign rulers - like Putin.
President Putin of Russia attempted to swing the election to Donald Trump through the release of damaging emails hacked from the Democratic National Committee, and the Clinton campaign. Trump specifically asked Russia to hack Secretary Clinton’s emails during the election. The proposed Secretary of State, and CEO of Exxon, Rex Tillerson, will not only enrich himself by increasing the value of his Exxon stock but seems to act against U.S. foreign interests and is aligned more with Russia’s interests - like their interests in having oil sanctions lifted for their military incursion into Ukraine. No intelligence briefing is needed. These facts are public now.
Additionally, Trump is currently soliciting bribes for his business from the oval office. He refuses to divest himself and his family from his business holdings. The Foreign Emoluments Clause in Article I, section 9, provides that “no Person holding any Office of Profit or Trust under [the United States] shall, without the Consent of Congress, accept of [sic] any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” This includes things like asking the President of Argentina for a building permit for a new Trump hotel, or the Bahrain government renting the ballroom at the Trump Hotel in D.C. to celebrate the seventeenth anniversary of his majesty King Hamad bin Isa Al Khalifa’s accession to the throne. The only practical enforcement of this clause is through the Electoral College determining that Donald Trump be denied the presidency.
So, there it is. The last hope. Another dysfunctional branch of government among dysfunctional branches of government having to rise to the occasion. If enough patriots stand up and vote as the Founders intended - not as mail carriers of the popular vote to Congress, but as representatives of the people of their state, and exercise their good judgement, America, and the world, could be saved from the two major parties making huge mistakes. Parties which weren’t mentioned by the Founders in the Constitution, and who seem to have hijacked the election, do not, and should not, supersede the Electoral College. Period.