The Electoral College is Broken

Ladies and gentlemen, boys and girls, canines, felines, lesser mammals… the unthinkable has happened. Donald J. Trump will be the 45th President of the United States. And at this point there’s very little that we can do about it. The Electoral College has failed, it did not live up to Alexander Hamilton’s aspirations that it protect the country from itself.

With almost three million more votes than Donal Trump in the general election, the nation chose Hillary Clinton to be the next President of the United States. She is, by far, the most qualified and experienced candidate ever to run for the office having been a Senator, the Secretary of State, and First Lady of the United States. However, through the arcane and corrupted machinations of the Electoral College, now hindered by multiple state laws from functioning as it was intended to, Hillary Clinton was unable to secure the requisite 270 Electoral Votes needed to take office. There is, apparently, evidence of international tampering with our election process. The CIA and FBI have made the assessment that Russia intentionally interfered with the election process through hacking of the DNC and the targeted release of information deemed to be detrimental to the Democratic Party ticket.

I can’t speak to the international interference. But I can discuss the Electoral College, its intent, its function, and its present day handicap.

So what do I mean when I say that the Electoral College failed to live up to Alexander Hamilton’s aspirations? Well, first let’s visit Article Two of the Constitution of the United States to find out what the Electoral College is as it is enshrined in the constitutional law of our country. And then, we’ll examine the Federalist Papers to find out the intention behind the Electoral College as it was explained by the Constitution’s most ardent supporter, Alexander Hamilton, which ultimately led to the Constitution’s adoption. And finally, we’ll look at the many states which have imposed laws upon the Electors which limit their ability to function as described by Hamilton and the Constitution.

Please feel free to agree or disagree with me however you want on whether or not Donald Trump is fit to serve as the President of the United States, I will reserve any further expression of my opinion and judgement on that issue to the final section of this post. Right now, I simply want to discuss the facts of the Electoral College.

The Constitution

Article Two, Section One of the United States Constitution reads as follows, according to the Government Printing Office:

Section. 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows

Each State shall appoint, in such 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.

[The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.]*

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

[In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.]*

*Changed by the Twelfth Amendment.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Now, the 12th Amendment changed a significant portion of this Article, so let’s look at that.

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Okay, so, put simply, the Electoral College is a transient office which is voted on by the general population to elect the President. The person with the greatest number of votes in the Electoral College wins the Office of the Presidency. (Note: 270 votes is only relevant in a two party system, the Electoral College operates on a simple majority.) You can’t be a member of the Electoral College if you hold public office and each state has the same number of Electors as it does Senators and Congressional Representatives combined, which is why more populous states like Florida and California have more electoral votes than less populous states like Montana and West Virginia.

The Federalist Papers

So now let’s look at Hamilton’s Federalist Papers, letter number 68.

It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

Hamilton argues that the right to elect the president should be vested in a body chosen specifically for that purpose, that that body should exist only for the purpose of electing the president.

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.

He further argues that a small group, selected by the general election, should have the freedom and ability to analyze the candidates, their qualifications, and their reasons for aspiring to the Office of the Presidency and make an informed and judicious choice in casting their electoral votes.

The process of election affords a moral certainty, 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.

Hamilton goes on in this paragraph to illustrate that in order to win the election a candidate must, and should, possess more than “[t]alents for low intrigue, and the little arts of popularity”. And that by following the intention of the framers in the implementation of the Electoral College, there should be “constant probability of seeing the station filled by characters pre-eminent for ability and virtue”.

Basically, what is argued for is that the general election should exist to select a group of people, the Electoral College, who will vigorously and systematically evaluate those standing as candidates for President of the United States and select the person who is best suited, who is most highly qualified through experience and ability, to ascend to the Office. They will do so by voting in their own states, rather than convening in one centralized location, to avoid influences meant to corrupt their ability to execute their task safely and expediently—like foreign world powers and angry mobs.

The reasoning for this is that the election of the Chief Executive demands unparalleled certainty that the person elected be  the most qualified and best suited for the job. “Certainty that the office of President will never fall to” someone who does not hold the qualifications, experience, and character required for the faithful execution of the Office.

Hamilton goes on to say, towards the end of this same paragraph, that Alexander Pope’s poem “For forms of government let fools contest, That which is best administered is best” could not be farther from the truth. The argument follows that the ability to efficiently administer a business or bureaucracy is not, on its own merit, a sufficient qualification for the Presidency. This same argument was echoed many years later by the second President of the United States, John Adams, in his Thoughts on Government.

Modern Handicaps

So what stands in the way of the Electoral College acting as prescribed in the Constitution and further elaborated upon by the Federalist Papers? Put simply, us. In 29 states and the District of Columbia—my beloved city—it is against the law for Electors to vote independently of their pledge. These states penalize what are called “Faithless Electors”, which are those who do not vote for the candidate who one the popular vote in that state.

This essentially dissolves the intention of the Electoral College to act independently and makes it impossible, or at least very, very unlikely, that the Electors will investigate, analyze, and select the best, most well suited candidate. In fact, in these 29 states and the District, there’s a $1,000 fine for not voting according to the state pledge—essentially hamstringing their ability to execute their job as Electors as prescribed but the Constitution and the Federalist Papers.

And, to make matters worse, of the 21 states without laws penalizing Faithless Electors there are some which simply void “faithless” votes. For example, if you’re an Elector in Michigan or Minnesota and you cast your vote for a candidate other than whom you are pledged to vote, your vote simply doesn’t count.

Pledges were never a part of the original design of the Electoral College and they have destroyed the integrity of the system as designed by the founders and authors of the United States Constitution. By instituting pledges for specific candidates, the States have circumvented the role of the Electoral College to elect the President and tried in ernest to force the Republic into a direct democracy, which it was not intended to be.

What makes this even more egregious is that the Supreme Court has upheld state pledge laws (Ray v. Blair, 1952), effectively giving tacit permission for States to intimidate Electors. However, it should be noted that the Court did try to make clear that their ruling was only on the constitutionality of the States writing laws about pledges and not for compelling votes. Which, in reality, has turned out to be no more than lip service.

And if you’re still undecided about, or disagree with me on, the idea that Electors are supposed to be independent actors selected for the Electoral College by the general election, I defer to Justice Robert H. Jackson who, joined by Justice William Douglas, wrote in his dissent to Ray:

[N]o one faithful to our history can deny that the plan originally contemplated what is implicit in its text—that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices.

President Trump

This is where the Electoral College has failed us. Donald J. Trump is not, by any measure of the man, endowed to “an eminent degree” with the requisite qualifications for the Office of the Presidency. And the majority of the population agrees with me in that assessment. Unfortunately, the Electoral College did not function as intended in this election, or really in any of the elections in modern, recent memory.

This is the fifth time in our nation’s history that the winner of the popular vote was not elected to the Presidency of the United States. And the second time in the last 20 years. Think whatever you want about George W. Bush—I personally couldn’t wait for him to leave office—at least he had some experience in public office, though I hesitate to say he was qualified to be President. Donald Trump is the single most unqualified and inexperienced person to run for the office with a major party, let alone be elected.

What is needed now is not the abolition of the Electoral College—though there are certainly enough advocates for such a position—but a restoration of its functionality. State pledge laws should be struck down and any efforts to compel electors to vote for specific candidates should be immediately and unceremoniously rejected.

Frankly abolition would never work because it would require a constitutional amendment, which many southern states and less populous states like Montana would never support. But in order to restore the Electoral College to its original purpose, we only need a solid Supreme Court decision repealing Pledges and Faithless Elector laws.

In the meantime, the majority of Americans who supported Hillary Clinton and cast their general election votes for her have work to do. We need to openly and vehemently resist and oppose the Trump Administration’s efforts to curtail civil rights, environmental protection, and international trade policies. We need to make sure that we turn out to vote in the midterm election! We need to elect democratic, socialist, and third party candidates in our state legislatures and select governors who support clean air, clean water, alternative energy, carnivore protections, fair trade, civil rights, and recognize science over faith in policy.

Let’s get to work.

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