Electoral College – John Frost

“The Electoral College”  – John Frost

To be well-informed is an admirable characteristic of a voter in a democratic constitutional republic. Our version of a democratic constitutional republic is unique from other pure democracies and republics which exist currently around the world. When the suggestion arises as a topic for political debate, like the Electoral College, one should start with a clear understanding of its creation, nature and wisdom in our unique system.

Remember, most immigrants to this continent came from European countries with their own unique political arrangements. Some institutional baggage was retained, some abandoned but most were modified resulting in our unique system Remember the composition of the House of Lords, the House of Commons, the Prime Minister and the Royal Family of Kings and Queens and a State Church which formed the System of Government in Great Britain. The first colonists and the first governments were formed with the British System in mind.

As the original colonies ranging in size of Rhode Island to New York began to realize that there was a need for certain common governance. It was the original states which created the Federal Government for their common good. The common good was clearly defined in the Constitution. Prominent among these issues of common good were guarantees of certain freedoms, the common defense, taxation, judicial system and a system for electing those who would govern. The power sprung from the people to the States, and then, upward to the Federal Government. Changes remain possible only with two-thirds vote of the States.

Concepts of Fairness, Balance of Power and Compromise had to be spelled out in the Constitution, as Amended when creating the Federal Government. The Constitution created the Senate with two representatives elected directly from each State. The Congress was designed to spread the power and fairness by the creation of a body which whose elected representatives were chosen by popular vote within population based districts (the issue of gerrymandering is a topic for another Reflection). Regardless of district population, each State would have at least one Representative in Congress and two Senators.

Now comes another big compromise and tip toward fairness, instead of a direct election by popular vote of the President and Vice President, the Constitution created the Electoral College which was understood to represent the vote of the people with each State given one Elector for each member of the combined houses of Congress (House and Senate). The fairness and compromise again was designed to balance the small states with the large states in terms of population and power. Early in our history, the individual State Houses of Representatives appointed Electors which was later changed to a popular vote in States which created Electoral Districts (in turn based on census data available every ten years). Yes, when one casts a vote for the President, one is actually casting a vote for a slate of representative Electors from each State and District of Columbia for a President and Vice President ticket. There is not a pure democratic or popular vote for the President and Vice President, not now and never has been. That is our unique system. For the record, in 2016, Oklahoma had 7 Electors while Texas had 38, California 55, Pennsylvania with 20, New York with 29 and Delaware had just 3 (same as D.C., Alaska, Vermont, Montana, North Dakota, South Dakota and Wyoming). As an aside, the least populated State is Wyoming, not Rhode Island or D.C. By constitutional amendment, the minimum number of electors for each state is 3 even if there were too few people in the state to qualify as an electoral district (fairness and compromise are again evident). Yes, it is possible and it did happen in our history, that the President won the Electoral College but lost the nationwide popular vote.

At first, obvious flaws in the Electoral College needed to be corrected. It turns out that as originally constituted both votes for President and Vice President would automatically result in a tie. This was corrected when it was decided that the President and Vice President were elected by separate votes so that there would never be a tie. Now, electors are pledged to a “ticket” with designated President and Vice President. Later it was decided to include three Electors from Washington, D.C. which is not a State.

Recently, there was an effort to call for Electors to vote differently than the nominee for whom they were elected. Even though the Electors are not bound, in the history of elections since 1789, only .67% of all electors have been “faithless electors” voting for someone for whom they were not pledged to vote. This happened once by one Elector in 1836. Obviously, “faithless electors” would undermine our entire electoral system.

Historically, there have been more than two tickets for Presidential and Vice Presidential nominees up for a vote in the Electoral College. In the case of Harry S. Truman, Woodrow Wilson and Abraham Lincoln, there were more than two parties with pledged voters in the Electoral College. The winner did not have a majority of the Electoral College but the plurality of those for whom the Electors were committed to represent. In 1992, with only 43% of the popular vote, President Clinton was elected with 370 Electoral College votes. (The history of third parties and their effect is another topic of interest for another day.)

Historically, some Presidents won the Electoral College but lost the nationwide popular vote: John Quincy Adams in 1824, Samuel J. Tilden lost to Rutherford B. Hayes in 1876, Grover Cleveland won the popular vote but lost the election to Benjamin Harrison in 1888, and more recently, Al Gore won the popular vote but lost the election to George W. Bush in 2000. And we recall that President Trump won the Electoral College but lost to Hillary Clinton in the popular vote. Even though both candidates pledged to accept the outcome of the election, one party has displayed a marked interest in challenging the results, questioning the Elector College method and calling for its repeal or replacement.

Another tip of the hat to the fairness of our system is evident in the rule that no federally elected official may serve as an Elector. Each State selects its own method of appointment of Electors. This is to insure potential conflicts of interest and possibility of conspiracy to change the vote for which they were elected.

Another anomaly, early on, the political parties selected prospective electors for each party. In current practice, each Presidential-Vice Presidential ticket has a unique slate of potential Electors. Then on election day, the voters select the Electors. Since 1996, all but two states have followed the winner take all method of allocating Electors. However, Maine and Nebraska are the only states not using this method. In those states, the winner of the popular vote in each of its congressional districts is awarded one elector, the winner of the statewide vote is then awarded the state’s remaining two Electors. So, rarely, some states may actually have a split ticket should the districts conflict with the statewide vote. I don’t have statistics on this anomaly, but it could happen. (I am researching whether Texas recently had a split list of Electors.)

As currently constructed there could theoretically be a conflict in the number of Electors for President and separately for Vice President. (One from the Republican ticket and one from the Democrat ticket.) In that case, this kind of “tie” outcome calls for a contingent election wherein the House of Representatives votes for the President and the Senate votes for the Vice President. The votes are taken in the House by State, one vote per State. The winner in the House must receive the votes of 26 of the 50 states, and the winner in the Senate must receive 26 of the 50 states. The District of Columbia would not be able to participate in a contingent election as it is not a State.

The current system can be changed by Constitutional Amendment initiated by Congress and voted by two-thirds in a nationwide election. Should it be changed? This will be a topic for discussion ad infinitum.

The Electoral College System, despite its inherent flaws, still seems to be the best way to assure fairness, compromise and adherence to the Constitution as Amended. One can always argue the point, but one cannot deny that it seems to be the wisest of all alternatives for the creation by the States of a more perfect Union