The Founding Fathers Did Not Trust You: The Electoral College (Part 1)

How many of you voted for either Barack Obama or Mitt Romney in the 2012 election?

Suckers.

Unless something is very unusual about the people reading this blog, the plain fact is that none of you voted for either of those candidates.  There are only 538 votes for president that count, and in a nation of some 320 million people, the odds are that yours was not one of them. 

Those votes belong to a group of people known, perhaps not surprisingly, as electors.  You get to vote for them – if you are lucky – and they get to vote for a president.  Since 1804 they also get to vote for a vice-president, but that’s extra. 

They do this in December, a month or so after everyone thinks that the dust has settled from the election.  Figuring out the specific date for this is kind of like figuring out when Easter will happen, in that it requires you to know several other dates and quite possibly to sacrifice some small, helpless animal.  Or not.  Accounts vary.  For the record, electors meet in their respective state capitals to cast their ballots on the first Monday after the second Wednesday in December, which, for the 2012 election cycle, was on December 17.  It will not be until December 19th in 2016.  Then and only then do they cast their ballots, which means the election is not officially over until five weeks after everyone thinks it is, just in time for last minute holiday shopping.

These electors are collectively known as the Electoral College, a deeply misunderstood institution in modern America.  The British biologist JBS Haldane once remarked that “the universe is not only queerer than we suppose, but queerer than we can suppose,” and the Electoral College fits that description quite nicely.  Unlike most colleges, it has no students, no faculty, no campus, no dorms, no football team, and very few cheerleaders, most of whom cannot do a split to save their lives, though one thing it does share with most colleges is an inordinate amount of politics.  In this it shares more than a few similarities with the College of Cardinals, though without the puff of smoke at the end of the process.

Wouldn’t that be fun, though?

For most Americans the Electoral College is something of a mystery, an arcane and semi-magical thing that drops into their lives once every four years when the political wonks begin to ramp up their chatter about the presidential election as if they were squirrels at an all-night walnut bar, and then just as quickly vanishes until the next time.  In the interval it rarely gets explained, and few people ever ask for it to be.

The reason for all this mystery is that the Electoral College is a holdover, a relic of the mental world of the Founding Fathers.  That world that has not existed for almost two hundred years now, and it has been so thoroughly forgotten that most Americans have no idea that it ever existed at all.

Don’t ever pay attention to any half-baked politician, apoplectic cable-news talking head, or semi-literate Facebook troll when they start spouting off about What This Great Nation Of Ours Was Founded Upon.  Nobody is running on that platform today, and none of you would vote for them if they did.  Things have changed.  The Electoral College – and the baffled looks that modern Americans get on their faces on those quadrennial occasions when they stop to consider it – is Exhibit A for that point.

So what I want to do here is two-fold.

First, in this post, I want to take a closer look at the Electoral College itself: what it is and how it works (or doesn’t work, as the case may be).

And second, in the next post, I want to step back and examine the question of why the Founding Fathers put such a system in place at all.  The Electoral College is a complicated and – to modern Americans – often counter-intuitive system, one that does not apply to any other office except the President and Vice President.  There are reasons for both of those facts.  And those reasons are interesting.

If you go around and ask people about the Electoral College – and one of the joys of being a historian is that you can do this and people already think you’re a bit lopsided so they don’t think any less of you for doing so – it quickly becomes crystal clear that not many people these days understand how it works.  In a sense, this is not surprising as the Constitution is actually quite vague on this subject, as it is on many points. 

That is by design.

The Founding Fathers understood that a framework of government needed to set out broad principles rather than dwell on the nuts and bolts of day-to-day administration.  They were much better historians than most modern Americans, and they understood that times change.  To imprison future generations in a cage made of “Original Intent,” particularly at the level of operational details – and especially since they themselves often disagreed about what precisely that Original Intent was – was therefore irresponsible.  Their job, as they saw it, was to lay down general guidelines and let those on the ground fill in the details of how things actually were supposed to work when they got to them.

The Electoral College, at its most basic level, is a body of men – and, recently, women – whose only task is to select a president and a vice president.  In addition to the theoretical and ideological questions regarding why we have this body in the first place, which I will get to next time, this raises a number of practical questions as well.

For one thing, who are these people?  How does someone get to be an elector? 

The Constitution does not say.

Article II, Section 1 simply says that “Each State shall appoint, in such a Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

That’s all it says!

So the number of electors is determined by the Constitution.  Wisconsin, for example, gets ten, since we have eight Representatives and two Senators at the moment, at least until the next census.  That much we know.  Also, the Constitution says that nobody with a federal job can be an elector, so at least we know who can’t be one.  Along those lines, the 14th Amendment – ratified in 1868, after the Civil War – also prohibits certain types (though not all types) of people who have committed treason against the United States from being electors, though it also allows Congress to lift such a ban for specific individuals should it so choose.

Pretty much everything else is up for grabs.

These days, the electors are chosen by the various parties that are running candidates for president.  It’s considered something of an honor, really – a reward for services rendered to the party.  It’s about one notch up the scale from being a delegate to the nominating convention and another notch below being named ambassador to some tranquil little vacation-oriented country if your candidate wins.  If you’ve spent a few years knocking on doors or working on the phone banks, or if you’ve donated large sums of money to the cause, at some point the higher-ups of your party may well designate you as an elector. 

Your name then goes onto a list or “slate” of electors.

The actual ballot that the voters will see will not have your name on it, though.  It will have the candidate’s name.  But through some legal sleight of hand, it is understood by the state that when the voter marks that space they are actually voting for the slate of electors designated by that candidate’s party.  Thus the confusion at the beginning of the post – you don’t see those names; you only see your candidate’s name, so you think you’re actually voting for that candidate.  You kind of are, in a roundabout sort of way, but not directly and not necessarily, and that’s a long and complicated thing that I’ll explain shortly.  It’s just easier on everyone to put the candidate’s name there, so that’s what happens.

As a general rule, states work on a “winner-take-all” system when deciding which slate will ultimately get to cast its votes for their candidate.  The citizens of each state vote, and whoever gets the most votes gets all of that state’s electoral votes.  In Wisconsin in 2012, for example, Romney got 1.4mm popular votes while Obama got 1.6mm, so all ten electoral votes went to Obama.

The thing is, though, it doesn’t have to work that way.  None of that is spelled out in the Constitution, and “Each state shall appoint in such a manner as the Legislature thereof may direct,” leaves an awful lot of leeway when it comes to figuring out who gets to be an elector and what they do once they become one.

For one thing, it doesn’t have to be “winner take all.”

Forty-eight states plus the District of Columbia work that way, but Maine and Nebraska work on a district system, where electors are chosen much like Representatives.  Under such a system it is entirely possible for a state to have some electors voting for one candidate and some for another, and this has in fact happened.  In 2008, for example, four of Nebraska’s five electoral votes went to John McCain, while the other went to Barack Obama.

On the one hand, it could be argued that a district system is more representative than a winner take all system, as it allows for more of an opportunity for a state’s divided popular vote to be represented in a divided electoral vote.

On the other hand, given the increasingly brazen, arrogant, and shameless gerrymandering schemes that one sees implemented by state legislatures these days when it comes to setting the boundaries of legislative districts – particularly the Great Gerrymander of 2012, which has so deeply distorted American politics over the last several years (in Wisconsin, for example, in the first elections after the Republican Party gerrymandered new legislative districts the Democrats got 51% of the popular vote but only 39% of the Assembly seats) – this likely is not true at all. 

In point of fact, district electoral voting is nothing more than a way to introduce gerrymandering into the presidential election.  If you truly wanted a representative system that reflects the will of the people accurately you’d just abolish the Electoral College entirely rather than throw it into a gerrymandered district system.  Anything else is just partisan politics.

But then, there isn’t anything in the Constitution that says you the voter get to have any input into the selection of your state’s electors at all. 

Remember “Each state shall appoint in such a manner as the Legislature thereof may direct?”  It is entirely Constitutional for a state to decide to leave the selection of its electors up to the state legislature without allowing its citizens any say on the issue whatsoever.

This was a common practice in the early republic, in fact.  Nine of the fifteen states did it this way in 1792 and ten of the sixteen did so in 1800.  As late as 1824, six of the twenty-four states still used this method.  It was last used in 1876 by the newly admitted state of Colorado, though in the disputed election of 2000 the Republican-dominated government of the state of Florida threatened to appoint its electors rather than see a recount of disputed votes determine who actually won the election there, and only the US Supreme Court decision halting the recounts before they were complete prevented them from doing so by making those threats moot.

Bottom line, the state legislatures, with no input from you whatsoever, could, if they so chose, pick random people off the streets, select them by lottery or by throwing darts at the phone book, or choose them based on how much they have donated to the election campaign of the sitting governor (currently under indictment), and so long as those people were not federal employees or traitors, those people would become electors with the full blessings of the Constitution.

If you want to see the Constitution amended really, really quickly, watch what would happen if a state tried this today.  But even that wouldn’t undo the selection.  You’d still have those electors and their votes would still count.  It just wouldn’t happen again.

Okay, so let’s assume that by one way or another we have chosen our electors.  Now what do they do?

Here the Constitution is in fact somewhat clearer, spelling out a fairly straightforward process of what needs to happen once the selection has been made.

The first thing is that electors meet to cast their ballots.  There is no central meeting place for all the electors spelled out in the Constitution, and as noted earlier they meet in their respective state capitals on the duly appointed day in December.  The Electoral College, in other words, is an activity, not a physical place. 

Once met, the electors then cast their ballots for their chosen candidates in whatever manner they deem appropriate.  The Constitution lets them do this however they choose.  They could cast paper ballots or electronic ballots, throw color-coded marbles into buckets, or perform specific interpretive dances to indicate their choice.  It’s up to them, so long as everyone agrees that a ballot, however defined, has been cast.

As the Constitution was originally written in 1787, electors cast two ballots, each for a different favored presidential candidate.  The only requirement for these ballots, beyond that they be for different people, was that at least one of the candidates be a resident of a state other than the one the elector was in (a restriction that, oddly enough, is still in place).  This was meant to ensure that no single state would dominate the executive branch. 

From there it was simple.  Whoever got the most electoral votes would become President and whoever came in second would become Vice President.

This system was designed for a world that had no political parties, the way the Founding Fathers felt politics ought to happen – you got the second best candidate for the second-highest office, after all. 

Two things happened quickly to change that.

First, parties developed anyway, and, thanks to the “second guy being vice president” system in the original Constitution, the 1796 election resulted in a Federalist President (John Adams) being saddled with his Democratic Republican opponent (Thomas Jefferson) as vice-president.  This worked about as well as you’d think it would.

Second, as a result of that election the parties developed the idea of “running mates” – candidates specifically running for vice-president rather than for president.  This didn’t work either, and election of 1800 was an unmitigated fiasco, since the Democratic Republicans forgot to have one of their electors not vote for their vice-presidential candidate Aaron Burr and Burr ended up tying Thomas Jefferson in the Electoral College.

From there it got ugly.

As a result, the 12th Amendment was quickly passed and ratified in time for the 1804 election to have the electors pick one specifically presidential candidate and one specifically vice-presidential candidate.

Having cast their ballots, each state’s electors then total them up and send the results to Congress.  There the President of the Senate – the incumbent vice president, according to the Constitution, or the President pro tempore of the Senate, if the vice president is unavailable – opens up the results and counts them in the presence of the entire Congress, both Senate and House, and the first candidate to reach a majority of the total number of electors – 270 today – is declared the winner, regardless of the popular vote totals. 

Three presidents have lost the popular vote but won the electoral vote and taken the oath of office as president, the most recent being George W. Bush in 2000 who lost the popular vote by about half a million votes but whose disputed victory in Florida was enough to push him over the magic 270 line.  Officially, the US doesn’t even keep track of the popular vote since that’s not what elects presidents, though these days figuring it out from the state totals isn’t hard.

This all seems relatively clear, if rather more involved than it needs to be, but there are two complicating factors at work here.

First, there is always the possibility that someone will not, in fact, receive a majority of the votes in the Electoral College.  The Founding Fathers actually anticipated that this would be the norm, but with the advent of political parties to discipline the votes of the electors, it has become the exception.

In recent history there have been few presidential elections with more than two viable candidates, and by definition a two-candidate race will give someone the majority unless there is a tie, which is exceedingly rare.  But this has not always been true.  Several times in our history the presidential election has been contested by three or more viable candidates, and while this usually still resulted in someone winning a majority, it didn’t always do so.

In 1824 none of the four candidates for president won a majority of the Electoral College.

If nobody wins a majority or if the final electoral vote is tied, the Constitution calls for the election to go to the House of Representatives.  Each state gets to cast a single vote among the top three finishers in the Electoral College. In the Constitution as originally written it was the top five, but with the 12th Amendment that was reduced to three, for reasons that probably made sense at the time.  Whoever gets a majority of the states is declared the winner, regardless of where they finished in the popular vote or in the Electoral College. 

John Quincy Adams, declared the winner by the House of Representatives in 1824, remains the only US president to lose both the popular vote and the Electoral vote and still get into office.  His single term in office went about as well as you’d think it would, given that fact.

Under the 12th Amendment, the Senate would get to choose the vice president from among the top two finishers in the Electoral College (not three, oddly enough), though by a majority vote of the individual Senators rather than by state.  There is nothing in the Constitution that says the Senate has to pick the vice president that the winning presidential candidate chose as his running mate, and it is entirely possible that you could have them be from different parties. 

In 1824 there was really only one serious candidate running for vice president, so no matter who came out of the House everyone already knew John C. Calhoun would be second in command.

The second complicating factor here is that there is nothing in the Constitution that says an elector actually has to vote for the candidate they said they’d vote for.

There are prohibitions – things that say who an elector cannot vote for.  An elector cannot vote for a presidential candidate and a vice-presidential candidate who are both from the same state as they are, as noted.  Nor can an elector vote for a vice-presidential candidate who would be ineligible to hold the office of president should something happen to the president during their term.  If you can’t be president, you can’t be vice-president.  But there is nothing in either the Constitution or federal law that binds an elector to vote for the candidate they have pledged to vote for.

Twenty-six states and the District of Columbia do have laws on the books requiring electors to vote for their pledged candidate, but such laws have never been enforced and there is considerable doubt as to whether they are enforceable at all under the Constitution.  The Supreme Court tends to take a very dim view of state interference in matters of federal elections, which is why state laws imposing term limits on members of Congress are invalid.  Nor is there anything in the Constitution that would make such a freelance vote reversible.  There are no do-overs in the Constitution, so even if you can punish an elector, it won’t alter the vote.  Plus, twenty-four states have no such laws on their books anyway. 

Generally the parties extract commitments from their electors to vote for their candidates, but again, such commitments really are not enforceable in any meaningful way.  Instead, they rely on the fact that electors who are selected by the parties themselves on the basis of service and loyalty to the party are not likely to buck the party when it comes to casting their ballot for the party’s nominee. 

Bottom line, though, for all practical purposes an Elector is basically free to vote for whomever they think would be the best president, regardless of almost any other consideration.  Neither prior pledges nor the popular vote are binding restraints on their decision.  So long as Electors don’t vote for one of the prohibited categories, they’re good.  If 270 Electors decide in December 2016 to cast their ballots for Aaron Rodgers, well, the Green Bay Packers had better have a backup quarterback ready to play.

There is even a term for when Electors stray from their commitments – they are called “Faithless Electors” – which if nothing else tells you that this sort of thing does happen from time to time.  There have been 157 Faithless Electors in American history, the most recent being in 2004.  In 1988, for example, Lloyd Bentson got an electoral vote for President, even though he was actually running for vice president, and in 1976 Ronald Reagan got an electoral vote even though he wasn’t running at all.

Had the 2012 election been less of a blowout loss for Republicans they might have found themselves in a very difficult situation on these grounds, as at least three Republican electors publicly declared in September of that year that they would cast their votes for Ron Paul rather than the party’s official nominee, Mitt Romney (though none did, in the end).  Had they actually done so in a close contest such as the one you saw in 2000, it might have been enough to send the election to the House.  Though whether that also would mean that the vice-presidential election would go to the Senate is a separate question.

You also heard serious calls from some extremist Republicans in 2012 for electors to turn their back on the popular vote and refuse to cast their ballots for Obama regardless of the will of the people, to appoint Mitt Romney president no matter what.  Fortunately the vast majority of Republicans – and all of the Republican electors – ignored these calls as the organized subversion of the will of the people that they were, but there would have been no remedy if it had happened.  The system can be gamed by subversives, if they are organized and disciplined enough.

So, bottom line, what you have here for choosing the most powerful office in the United States is a very complicated and in some senses fragile system, one unlike the process for choosing any other office.  It’s a system that places a body of officials between the citizens and their candidates and one that does not particularly bind those officials to respect the will of the citizens as expressed by the popular vote.  And if the system fails to choose a candidate, it doesn’t default back to the citizens.  It defaults back to another intermediary body – Congress – and they get to choose. 

Who thought this was a good idea?

The Founding Fathers, that’s who.

And the question is: why?