The Electoral College is one of those historical oddities whose persistence in our national life is in part owed to the infrequency with which we’re obliged to think about it at all, like the America’s Cup, or Newt Gingrich. Every four years we hear about the 270 “electoral votes” needed to secure the presidency, and then we promptly forget about it.
It’s safe to say that most Americans don’t know much about the Electoral College, but what they do know seems out of synch with the way our political and social discourse is otherwise conducted.
Part of our collective confusion stems from the very name of the Electoral College, which suggests an ivy-covered gothic building somewhere, perhaps with a football field out back. There is no such building, and in fact the phrase does not even appear in the U.S. Constitution, which refers only to “Electors” who shall be appointed by each State, “equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” Hence the magic number 270, which equals a bare majority of the number of Senators (100) plus the number of Representatives (435) in the U.S. Congress, plus three Electors grudgingly allocated to the District of Columbia.
The phrase “Electoral College” appears only in a Federal statute enacted in 1845, referring to the States’ Electors as a group, though they never actually meet as such. (Somewhat ominously in this year of accusations of “rigged” elections, the constitutionality of key aspects of the selection of Electors has never been tested; more on that later.)
In addition to its misleading title, there are a number of peculiarities about the Electoral College that bear reflection. The first peculiarity is that this method of electing a president was adopted at all. More obvious and simpler methods were proposed and actively debated during the Constitutional Convention of 1787, including the sensible idea of direct popular vote (what we tend to think we’re all doing on Election Day), but also the openly elitist notion of a vote by the governors of the various States. (Thank God and the Founders we were spared that quadrennial spectacle.) The idea of an indirect vote by slates of presidential “electors” provided a way of side-stepping the problem that the large black slave population in the South wouldn’t be able to participate in a direct popular vote.
So while we think we are voting for presidential and vice-presidential candidates on Election Day, and that is how most ballots present the matter, what we are really doing is voting for a slate of Electors selected by the party of each candidate in each State. These Electors are actual human beings with names and addresses we don’t know and couldn’t care less about, but they are the only Constitutional linkage between the voting populace and the ultimate result of electing a president and vice president.
The Constitution leaves entirely to the States the important question of how these Electors are chosen, and in fact different States use different methods, but all of them vest the authority to select the individual Electors in the major political parties, meaning that, in practice, the Electors will be ardent apparatchiks of one stripe or another, upon whom this function is conferred as a reward for some past service to the Party. (One can only imagine that the disappointment of the voter whose candidate loses in the general election must be dwarfed by the disappointment of the Elector whose candidate loses, who thus goes from being a Constitutionally-anointed big cheese back to being a nobody in a single day.)
After Election Day, in the case of most but not all States, the slate of Electors associated with the candidate receiving a simple majority of the votes within that State is certified as that State’s Electors. But we wouldn’t be the wild and wacky U.S. of A. if we didn’t have two outlier States, Maine and Nebraska, that don’t do it in this “winner-take-all” way, but rather allocate their Electors by congressional district, meaning that they can and do certify Electors from different parties in the same election, effectively cancelling one electoral vote with another.
Strange enough? There’s more. Given that the States certify slates of Electors, and there is no Constitutional rule for exactly how this is to be accomplished, it’s entirely possible for State legislatures to get into the act and try to upset the apple cart by refusing to certify the Electors from their State who may have been chosen by popular vote. And this in fact happened in 1876, when Republicans, who dominated the legislatures of three southern States, managed to certify a competing slate of Electors for the benefit of presidential candidate Rutherford B. Hayes, despite the fact that Samuel Tilden had won a clear majority of the popular vote in their States, and nationally. And it worked! Hayes became President, though he was dogged ever after by the moniker “His Fraudulency.” And of course, we have the abject example of the election of 2000, when another guy who failed to win a majority of the popular vote nonetheless became President, though that one required the intervention of the Supreme Court.
A further oddity is that Electors, being actual people endowed with certain inalienable human rights by our genius Constitution, can technically vote for whomever they want when they coalesce into a notional “college” after the election, even someone not on the original ballot that endowed them with their Elector status. The States try to prevent this by requiring that prospective Electors take a pledge or by prescribing fines for renegade Electors, but in the end, they are the Electors (sort of like George W. Bush was “the Decider”). There have, in fact, been renegade Electors (called “faithless electors” in a more elegant time), though thankfully not enough of them to throw any elections. And in this slightly insane election cycle, there are people out there openly calling for what amounts to a second election to be conducted on the basis of the Electors’ individual discretion, independent of the popular will. See: http://www.wsj.com/articles/let-the-electoral-college-do-its-duty-1473290734
If things go as they are supposed to, sometime in December the appointed Electors will make their way, physically, to their respective State capitals, as though we were living in the agrarian, pre-industrial milieu of our bewigged Founders and still riding around in horses-and-buggies, and actually vote for a president and vice-president. The results are then certified by the respective States to the Archivist of the United States (yes, there is one, and yes, you are invited to visualize Albus Dumbledore from Harry Potter). Finally, on January 6, Congress meets in joint session to count the electoral votes that were cast back home in the hinterlands by the Electors. Assuming someone receives at least 270 electoral votes (not a given when third-party candidates are afoot), then and only then can the president and vice president be said to have been “elected,” Constitutionally speaking.
If no one receives the requisite 270 electoral votes, we have what is called a “contingent election,” which under the Twelfth Amendment to the Constitution, ratified in 1804, calls for the House of Representatives to “immediately choose” the President from among the candidates, with each State casting one vote. Thankfully, this has happened only once in American history, during the election of 1824, when there were four candidates for the Presidency, including John Adams and Andrew Jackson. In a political free-for-all that even the current Congress would be hard-pressed to equal, Adams eventually prevailed, but proved so inept a consensus-builder that he was defeated and replaced by Jackson four years later. We are left to imagine the circus that would unfold were such a process to become the responsibility of the current House of Representatives.
Those of us who are Democrats don’t mind the Electoral College, because the States on the coasts, with big populations, large numbers of Representatives and, therefore, the largest blocks of electoral votes, tend to vote Democratic, and in the winner-take-all regime adopted by most States, the candidate winning a bare majority of votes in a State receives all the electoral votes allocated to that State. It doesn’t take too many of these large-population States to add up to the requisite 270 electoral votes.
But isn’t this silly in this day and age? The premise of the Electoral College was to mimic the representational dynamic of the Congress, which assumed that it was both risky and impractical to allow the people to vote directly on matters of great importance; risky because the people were largely uneducated, and impractical because they were scattered across the rural vastness of the colonies, with no means of communicating quickly or easily. It was also a compromise to avoid the thorny issue of black suffrage (or lack thereof) in the South. Everything about this has changed, yet we continue to apply an 18th century mechanism to the task of electing our presidents.
One of the few cogent arguments for retaining the Electoral College rather than allowing a direct popular vote in presidential elections is a negative one: the Electoral College has failed to reflect the popular majority “only” four times in our history, most recently in Bush v. Gore in 2000. But why risk this? And further, why risk the absurd political spectacle of the House of Representatives choosing a President, which is what would befall us under the current system if, as may well happen in the post-Trumpian world, there are multiple party candidates and no one of them wins the needed 270 electoral votes?
Especially in an election year like this one, when one of the presidential candidates has already declared the system “rigged,” the integrity of the national vote is at greater risk because it rests on an indirect, inconsistent, State-reliant mechanism that is susceptible to political manipulation and opportunistic legal attack. Forget Russian hackers; we should be worried about American lawyers in the employ of Donald Trump.
Our very peculiar Electoral College has outlived its dubious usefulness, and it’s past time for presidential elections to catch up with the 21st century. Unfortunately, direct popular vote in presidential elections can only be instituted by Constitutional amendment, which was most recently proposed in the wake of Nixon’s narrow win over Humphrey in 1968, and had a good chance of success, but was filibustered to death by, predictably, conservatives from southern States who correctly saw it as a threat to the disproportionate leverage that the Electoral College bestowed on their constituencies.
Time to try again.