So far as the United States Constitution is concerned, the presidential election occurs next month, when the members of the electoral college cast their votes. As those individuals ponder their vote, there are a few things that they, particularly the conservatives among them, should bear in mind about the powers and duties the United States Constitution has assigned them.
The framers rejected direct popular election of presidents, fearing that it would attract demagogues. They also refused to let other governmental bodies or officials choose the president, fearing that it would invite corruption and foreign interference. And so they erected a buffer institution, strikingly similar to a jury: a body of citizens assembled for the occasion, called upon to exercise their independent judgment, composed as a bulwark against demagoguery, official intrigue, and foreign meddling.
"Each State shall appoint," provides article two of the Constitution, "a number of electors" equal to its congressional delegation, who "shall meet in their respective states, and vote by ballot for two persons"; because a given state's electors might not be unanimous, "they shall make a list of all the persons voted for, and the number of votes for each," which is then transmitted under seal to Congress. Subject to a majority requirement, the "person having the greatest number of votes shall be the President."
Alexander Hamilton, whose prominence this year has turned out to be unexpectedly timely, explained this system in one of his contributions to the Federalist Papers. The purpose of the electoral college, he wrote in Federalist 68, was to ensure that "the sense of the people should operate in the choice" of the president. "This end will be answered," he said, "by committing the right of making it, not to any pre-established body, but to men chosen by the people for the special purpose, and at the particular juncture."
The composition of the electors, Hamilton wrote, would make them "most capable of analyzing the qualities adapted to the station" of president. "Acting under circumstances favorable to deliberation," and subject to "a judicious combination of all reasons and inducements which were proper to govern their choice," they would "be most likely to possess the information and discernment requisite to such complicated investigations."
The electors could therefore be expected to appoint to the presidency "characters pre-eminent for ability and virtue."
They would make sure "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," turning away anyone whose only qualifications were "talents for low intrigue" or "the little arts of popularity."
They would also keep out the stooges of hostile governments, being the best "practicable obstacle" to "the desire in foreign powers to gain an improper ascendant in our councils" by "raising a creature of their own to the chief magistracy of the Union."
The key to all of this was the independence of the electors. The framers, Hamilton explained, "have not made the appointment of the President depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes." Instead, "the people of America" would be represented by a group of individuals assembled "for the temporary and sole purpose of making the appointment."
They must vote separately, in their own states. This "detached and divided situation," Hamilton wrote, "will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place." Though quaint in the electronic age, the precaution highlights the importance attached to their personal judgment.
Like jurors, they would be chosen under rules set by the state legislatures, but they would not be directly controlled by the legislatures, or by anyone else. They would be "free from any sinister bias" that might "mislead them from their duty."
This year's panel of 538 electors will vote on December 19. They are not bound to vote for the candidate of their party. If a small number of electors vote for neither of the leading candidates, then the election would go to the House of Representatives, which could choose any of the top five vote-earners in the electoral college.
As they commence what Hamilton called their "deliberations" and "investigations," let them recall the framers' expectation that they would reflect the sense of the people, that they would not choose a person lacking the requisite qualifications. And as they decide what weight to give the November 8 results, let them recall the dangers the electoral college was designed to prevent.
Mindful of demagoguery, let them consider a certain candidate's appeals to the population's worst instincts with hateful, inflammatory words.
Mindful of governmental intrigue, let them consider a certain chief law enforcement officer's abuse of his authority to influence the outcome.
Mindful of foreign tampering, let them consider a certain country's hacking of our computer systems, its avowed connections to one of the campaigns, the celebrations in the Kremlin of its candidate's success.
The members of the electoral college are not only free to use their independent judgment; they are required to, if they wish to remain faithful to the framers' design. In rendering their "verdict," let them recall that responsibility for this life-or-death decision lies with them alone.