Sunday, December 11, 2016

A Crash Course in the Electoral College

The Electoral College Helps Keep the States "United"

Official Tally of Electoral Votes, Election of 1800 

Here we are just about halfway between election day and the inauguration, and once again many questions are being raised about why we choose Presidents through the Electoral College -- including the assertion that the countrywide popular vote is the only legitimate way to elect a President. 

What is the Electoral College and Why Was it Created? 

The Electoral College is not a school; it is the process set forth in the Constitution for electing Presidents. The Constitution prescribes the process in Article II, Section 1, as amended by the 12th Amendment. 

Here is how it works in a nutshell:
  • Each state appoints electors -- in the manner it chooses -- equal in total to the number of Senators and Representatives it has in Congress, but none of them (or any government officer) can be an elector; 
  • The appointed electors then meet in their own states to vote; 
  • The lists of each state's votes are transmitted to the President of the Senate (the current Vice-President) and others; and
  • The votes are counted before Congress in joint session, and the person with a majority of the electoral votes is elected President. If no one has a majority, the President is chosen by the House of Representatives. (More on that and the origin of the 12th Amendment below.)
Why did we end up with this process? A number of options for selecting the President were considered at the Constitutional Convention, including popular election; having Congress pick the President; and allowing each Governor to cast a vote. Each of these was seen as suffering to some degree from a defect most feared by the Framers -- that each state would act in its own self-interest, which would lead to a failure to select the best candidate for the federal union as a whole. With popular election, the concern was that local favorites would be selected, which would lead to the state with the largest population selecting the President. Having Congress pick could lead to brokered political deals, and also conflicted with the separation of powers, because the President might not act independently owing to a sense of loyalty to those who chose him. Similar issues would be presented by having the governors pick. (In fact, to this day the electors meet in their respective states, and not all together, to avoid the chance of a brokered President.) 

The Electoral College was another attempt by the Framers, through compromise, to ensure that the best decisions would be made for the country as a whole, and not just for the larger states. Much as we have two senators for each state regardless of population, which provides the small states with an overweighted say in the Senate, the electoral process similarly provides greater weighting to them in the presidential selection process. It seems that fewer and fewer citizens recognize that if you want a "United" States, you have to give something to the small ones so that they can maintain their independence and autonomy when grouped with larger ones. 

If States Use the Popular Vote for Electors, Why Do We Still Need the Electoral College?

You actually are voting for the slate of electors in each state, not on a countrywide basis. That is why the countrywide popular vote is meaningless; it merely reflects that there are several states with very large populations. Also, the states remain free to decide how to select their electors and could change the current approach. As the Supreme Court stated in Bush v. Gore: 
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. . . . [T]he state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. . . . The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.
Is the Electoral College Consistent with Democracy?

Strictly speaking, the United States is, above all, a republic and not a democracy. Or, as it is sometimes called, a democratic republic. While some use the term democracy to describe the United States, we are not one in the pure sense of the word, which would mean direct democracy or pure majority rule. Thus, throwing around the word "democracy" to denigrate the Electoral College as "undemocratic" is disingenuous. What we have is a form of representative democracy -- a republican form of government, based on the rule of law, and with a written constitution backed up by judicial review that provides a significant check on the majority. Indeed, the Constitution is replete with antimajoritarian provisions. Just take a look at the Bill of Rights.

The experience with Proposition 8 in California presents a prime example of the majority trying to limit minority rights and being stopped, which would not happen in a true democracy. Proposition 8 was a ballot initiative designed to overturn a California Supreme Court decision holding that California could not limit marriage solely to a man and a woman. It received over 52% support from the voters, a winning majority. However, consistent with our republican form of government, the minority interest was protected from the tyranny of the majority when a federal court ruled Proposition 8 unconstitutional. Needless to say, if we were a democracy the way people are using the word post-election, then the federal court would not have had the power to block the initiative as it did. This distinction between a democracy and a republic is very important, and has been since the beginning. Indeed, Article IV, Section 4, of the Constitution provides that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government" -- not a democracy.  

Where Would Small States Be Without the Electoral College?

The recent election highlights the small versus large state issue and the reality that the countrywide popular vote does not address the nature of politics across the country. Hillary Clinton won 20 states plus the District of Columbia, while Donald Trump won 30 states (he also expects to receive 1 electoral vote in Maine). From this state-based perspective, about 40% of the states wanted Clinton, while about 60% wanted Trump. In fact, Clinton's mostly larger states plus DC totaled just 38 less electoral votes than the 270 she would have needed to win. So the point is that Trump had to win many more states to win -- about a third more -- especially with California and New York reliably going for the Democratic candidate. Here is an Electoral College map from the website 270toWin.com that shows the expected outcome for 2016:



270toWin.com

Keep in mind this fact: Smaller states would have no say in the Presidential election without the Electoral College. Candidates would be focused solely on a small group of larger states. 

Is It Fair That the Popular Vote Winner Can Lose?

The total countrywide popular vote is, quite frankly, irrelevant under the Constitution. The only thing that counts is winning according to the applicable rules in order to take the top prize. Remember the Patriots team that went 18-1 and then lost the Super Bowl? Or Michelle Kwan, one of the greatest figure skating champions ever, who never won Olympic Gold? Truth is that they lost according to the rules. So too with the Electoral College. 

The same "unfairness" can be true for candidates who win more electoral votes but do not achieve the required majority. In that situation the House of Representatives picks the President, with each state having a single vote. Andrew Jackson was not elected in 1824 even though he had the most electoral votes. Since he did not have a majority, the election was decided by the House, which selected John Quincy Adams.

By the way, this is the fifth election in which the candidate with the most popular votes did not win the Electoral College. The others were 1824 (John Quincy Adams); 1876 (Rutherford Hayes); 1888 (Benjamin Harrison); and 2000 (George W. Bush). 

What Happens Between Now and the Inauguration on January 20, 2017?

While voting ended when the last polls closed on November 8, that was just the first step in the formal electoral process that will culminate in the new President taking the oath of office. Here are some key upcoming dates: 
  • December 13 is the “safe harbor” date by which the states have to resolve issues about their electors in order for the selection to be presumed conclusive. (In the 2000 election, this date was the reason the Supreme Court stopped the Florida recount.)
  • December 19 is the date the electors will meet in their respective states and cast their ballots. 
  • January 6 is the date when Congress will count the electoral votes, a process presided over by the Vice President. In an irony of history, but also a great display of the peaceful transition of power, then Vice President Al Gore was required to preside over the counting of the electoral votes in January 2001 that officially elected George W. Bush. You have to give Vice President Gore credit for the way he handled the results of the election, especially including presiding over the tally. Here is a video of that event:


Some Interesting Electoral Facts

  • It has always been the case that the person having the most electoral votes -- assuming it is a majority -- would be President. Originally, however, each elector voted for two people, and the runner up in vote total became Vice President. After the election of 1796, which resulted in bitter rivals John Adams serving as President and Thomas Jefferson serving as Vice President (which would be like having Hillary Clinton serve as the Vice President starting in January), the Twelfth Amendment was adopted to modify the process by requiring electors to vote separately for the two positions.
  • Only 10 of the 13 original states participated in the first presidential election. North Carolina and Rhode Island had not yet ratified the Constitution, and New York failed to appoint electors due to, of all things, politics. 
  • In the election of 1800, Thomas Jefferson and Aaron Burr (yes, that Aaron Burr) tied, and the House chose Jefferson as the President on the 36th ballot, allegedly because Alexander Hamilton (yes, that Alexander Hamilton) gave the word that he preferred Jefferson. The actual Senate document showing the original electoral vote count is at the start of this post.

14 comments:

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