Thursday, December 8, 2016

Electoral Politics

It is amazing to me just how little everybody seems to know about the Electoral College. And included in that thought are a wide variety of derivative issues regarding which the public appears to be equally clueless: why the founders invented the College in the first place, what role it was expected to play, whether that role has evolved into something essentially positive or negative in terms of the democratic nature of our American republic, and  whether the electors are supposed to be marionettes who cannot and may not act other than in accordance with the instructions received on Election Day from the citizens they represent or if the whole concept of elector-as-unfree-automaton obviates the whole point of the Electoral College existing in the first place.

Those are a lot of questions! To prove me wrong, feel entirely free to answer them without looking anything up first. I thought so! And yet…I can’t remember ever reading more about the Electoral College, much of it expressing diametrically opposing opinions, than in the course of the last few weeks since the presidential election. Just the other day, for example, an elector from Texas, one Christopher Suprun, took to the op-ed page of the New York Times to announce his intention specifically not to cast his vote for Donald Trump despite the fact that the latter won in Texas by well over 800,000 votes. The response—at least by readers who took the time to post their responses on the Times’ website—was remarkable: over 6300 people posted responses on the day the article appeared and on the following day. And they were remarkable too in terms of the degree to which they showed just how unsure the populace seems to be about the role of the College and the electors who constitute its ranks. One reader addressed the author directly and wrote, “You are a faithless elector and a traitor to the republic.” Another, also speaking directly to the author, wrote, “Thank you for serving your country faithfully and bravely.” Both comments had, not hundreds, but thousands of comments supporting their positions. But which was essentially correct? And is the answer to that question different if we are discussing the best path forward for our nation or if we are discussing the essential nature of the Electoral College itself and the appropriate limits of its power?  Those are the questions I’d like to write about this week.

The first detail most American seem not to realize is that the whole concept of an electoral college is not a home-grown notion, but something with roots deep in extra-American history. Originally a kind of check against the inherent capriciousness of a hereditary monarchy (i.e., one in which the head of state comes to power merely by inheriting the office from the person who occupied it previously), the notion was essentially a way to guarantee that completely inept heirs-apparent could be kept from power. There were even examples in which the electors were free to choose anyone at all to reign without respect to that individual’s relationship to the former regent. But the principle behind the concept of an electoral college in both versions was the same: to guarantee that the national leader would be someone of merit and worth and not merely someone born into the right family at the right moment in history.

In our American context, the Electoral College was instituted for two basic reasons, one of which was to speak to that specific issue of worthiness to govern. Here, of course, the founders’ fear was not that the presidency would somehow become a heritable office that would pass from parent to child and that the presidency therefore needed to be protected in advance from an incompetent heir—even Alexander Hamilton, who argued before the Constitutional Convention of 1787 that the presidency should be a kind of elective monarchy in which the monarch would rule for life unless impeached, did not favor a hereditary system in which the office would remain within a specific family—but rather an analogous fear related to the gullibility of the public. 

The great flaw in the democratic system, as any student of history knows, is that it presumes the people capable of making thoughtful, mature decisions with respect to the choice of a national leader.  For the most part, this is a rational assumption that accords reasonably well with reality. But history is filled with examples of nations perversely, yet fully democratically, electing leaders whose policies were clearly inimical to the nation’s best interests. The Nazis, for example, won the German federal election of November 1932 with a comfortable plurality—winning more than 37% of the vote, to the Socialists’ less than 22% and the Communists’ less than 15%—which victory led directly to totalitarianism, followed by war, followed by total defeat. There are many other examples as well of nations making horrific errors by putting their confidence in leaders whom the electorate ought to have shunned. And it was to speak directly to the possibility of national error on that scale that Article II of the Constitution, later modified by the Twelfth and Twenty-Third Amendments, called for the creation of an Electoral College. So that is the first of the two reasons that the founders instituted the Electoral College: to serve as a check against the poor judgment of the majority.

The second reason for an Electoral College was to create an electoral system that would encourage smaller states to join the union by lessening the possibility of elections being decided solely by the citizens of the largest states. Since the number of electors equals the number of representatives and senators who represent a state in the Congress, but only the number of representatives is tied to population (because every state has two senators), the result is that the electors from smaller states represent far fewer people than the ones from larger states. (To give an example of how this works, each elector from Wyoming represents about 70,000 citizens, whereas each elector from California represents about 179,000 citizens.)  On the one hand, this feels contrary to the foundational “one vote per citizen” rule upon which all democratic systems rest. On the other, it guarantees smaller states a voice in national decisions that would not otherwise be theirs. Whether that is a good enough reason to override the inherent unfairness of different citizens’ votes being weighted differently is an excellent question that goes directly to the heart of the matter.

The rest of the system is better known, at least to most. In forty-eight of the fifty states, the winning party appoints all the electors. (Maine and Nebraska allocate electors by congressional district, plus two at-large electors awarded to the party that wins the popular vote in that state.)  There is, however, no Constitutional provision or federal law requiring electors to vote for the candidate who won in their state. In 1952, the Supreme Court ruled that states may require electors to take a pledge to vote for whomever won the popular vote in that state and twenty-nine states have instituted such a pledge. There are even fines in some states for so-called “faithless electors,” but the reality is that no elector has ever been prosecuted for failing to vote as pledged.

It is, at any rate, not a huge problem. In our nation’s entire history, there have been a total of 157 such “faithless electors.” But seventy-one of them, almost half, voted for someone other than the victor in their state because the person who won the popular vote in that state died in the interim. So only the other eighty-six voted for someone other than the person who won in their state because they didn’t wish to see that person become president. None of these decisions has ever changed the outcome of a presidential election or even come close.

Asking whether the Electoral College is worth retaining is hardly worth the breath that the ensuing debate would require, since getting rid of it could only be by constitutional amendment and that is more or less universally considered a political impossibility in today’s America. What could happen, on the other hand, is that states could abandon the “winner take all” rule and allow the electors of any given state to mirror more precisely the vote in that state. That would go a long way to eliminating the possibility of one candidate winning the popular vote and another becoming president, which has now happened five times in our nation’s history, in 1824 (when Andrew Jackson won the popular vote but John Quincy Adams became president), in 1876 (when Samuel J. Tilden won the popular vote, but Rutherford B. Hayes became president), in 1888 (when Grover Cleveland won the popular vote, but Benjamin Harrison became president), in 2000 (when Al Gore won the popular vote, but George W. Bush became president), and now a fifth time in 2016 with the election of Donald J. Trump.

But, of course, if the rules were to be altered to guarantee that whoever wins the popular vote becomes president, then there really would be no rational reason to retain the Electoral College. On the other hand, if the whole point is to preserve the voice of the people while, at the same time, guaranteeing—and here I quote Alexander Hamilton in The Federalist Papers—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,” then “fixing” the system to guarantee that the College can never resist the popular results and elect someone who didn’t win the popular vote would work at complete cross-purposes with the point the College exists in the first place. And, of course, it would also eliminate the advantage the current system offers to the residents of smaller states.

To me personally, the whole “smaller states’ advantage” thing is hard to justify. (Isn’t the whole point of a democracy that no citizen is given a louder voice than any other, and particularly when it comes to voting on Election Day?) But the former point, the one about the College serving as a check against the gullibility of the masses, is something worth taking seriously. We don’t have a British House of Lords or a Canadian Senate here filled with learned, worthy statesmen charged with guiding the nation morally and intellectually forward while the lower house, the one actually elected by the people, makes the decisions that actually count. Our version of those august bodies of senior advisors and wise counselors is the Electoral College, a body specifically not populated by wise patriots far above the fray of partisan politics but by party loyalists chosen precisely because of the unlikelihood of any of them going rogue and voting for someone other than their party’s candidate.

Unless we, as a nation, are prepared to fill the ranks of the Electoral College with our nation’s brightest and most responsible thinkers and to charge them with endorsing or rejecting the people’s choice of a national leader, we should abandon the winner-take-all rule and require that electors be chosen in a way that mirrors that state’s vote.  I would favor the former approach, but could live with the latter. What seems ridiculous to me is for every three Californians to have the same voice in the choice of our national leaders as one single Wyomingite.  

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