Here is Question One on this year’s Constitutional Law exam.
The “electoral college” is
a terrible idea that has gone wrong repeatedly and now bids fair to destroy the Republic.
a wise creation of all-wise “Founding Fathers” who foresaw precisely this moment and set up the “college” to protect the People from themselves.
Both of the above, even though that makes no sense at all.
WTF? How did we get here?
At least from now until December 19, when the electors will meet in the state capitals to vote, we are likely to hear a good deal about answer 3 from Democrats and supporters of Hillary Clinton. (In the spirit of disclosure, I am both.)
My Atlantic colleague Peter Beinart explains that the choice of Donald Trump is “the kind of democratic catastrophe that the Constitution, and the Electoral College in particular, were in part designed to prevent.” In Time, author Michael Signer tells us that “the Electoral College was primarily designed to stop a demagogue—a tyrannical mass leader who preys on our prejudices—from becoming President.” Harvard Law professor Lawrence Lessig argues in The Washington Post that “the framers created a safety valve . . . . Like a judge reviewing a jury verdict, where the people voted, the electoral college was intended to confirm — or not — the people’s choice.”
The implication is that, if the electors chosen in November were to conclude on December 19 that Donald Trump was a frenzied byproduct of democracy run amok, they would be constitutionally justified in choosing Hillary Clinton instead.
I would fervently like to believe that this argument is sound history and constitutional law, and that it has some chance of preventing Trump from becoming president. But historically it’s more or less backwards. At the most basic level, America in 2016 is not a nation in which “the people” have been seduced into enthusiasm for a majoritarian demagogue. Hillary Clinton, not Donald Trump, is “the people’s choice.” A Trump presidency, God help us, will be a minority government, the product of the Framers’ electoral-vote system working exactly how it has all too often worked.
I see nothing in the record to suggest that the Framers actually feared a situation in which a designing schemer would command majority popular support but be blessedly blocked by wise electors. Many, or perhaps most, of them, from the record we have, feared the reverse.
That is, they believed that, with the exception of George Washington, no political figure would ever become well enough known (after all, the population of the U.S. in 1787 was nearly four million people!) to command a popular majority. “Nineteen times out of twenty,” delegate George Mason predicted, the state electors would not produce a winner. When that happened, the delegates decided, choice of a president would be thrown into the House of Representatives.
Today’s electoral-college supporters often quote Alexander Hamilton’s Federalist 68: “the immediate election [of the president] should be made by men most capable of ana[y]zing the qualities adapted to the station, and acting under circumstances favourable to deliberation,” Hamilton wrote.
The Federalist, brilliant as it is, isn’t a definitive guide to what the Framers “intended”—it is a sales document, written after the fact at high speed in order to convince wavering voters in New York to support ratification of the Constitution. Hamilton here is a car salesman explaining that the undercoat package might seem useless but is really worth it.
Here’s why the “deliberation” idea of electors is false. Under Article II § 1 cl. 3, the electors never meet as a group. They meet “in their respective states” on a date set by Congress—“which Day shall be the same throughout the United States.” Kept resolutely apart, they vote once and only once. If by chance, a majority of electors nationwide favor one candidate, he or she becomes president. If there’s a tie, or no candidate gets a majority, then the House decides. The electors get thanked and sent home.
In short, nobody in 1787-88 thought of the electors as anything but what they are today—faceless hacks whose ideas and judgment are neither wanted nor permitted. I’ve been present when electoral candidates were selected; the main criteria were party loyalty and patronage. Wisdom is seldom sought after, and would be pretty much useless.
In fact, for all the nobility ascribed to it today, the real reason for the system is simply this: some states didn’t want to let most of their people vote. Slaves, obviously did not get the ballot (in 1792, when the Philadelphia convention convened, only one of the 13 American states was a “free state”). States wanted power in proportion to their population of slaves, however, and the “electoral college,” with its rule counting slaves as 3/5 of free persons, guaranteed that. Beyond that, however, some states wanted to keep the ballot in the hands of the well-to-do. At the Philadelphia convention, Madison summed up the problem. “The people at large” were “the fittest” source of presidential election—“as likely as any that could be devised to produce an Executive Magistrate of distinguished character.” But there was a problem: “[t]he right of suffrage was much more diffusive in the Northern than the Southern states” and the South “could have no influence in the election on the score of the Negroes.” Electors would give the South power without penalizing its elites for failing to emancipate black Americans or enfranchise poor white ones.
This is exactly why the system remains in place today. It allows local elites to limit access to the ballot without losing national clout.
In a popular vote system, communities gain influence when more of their people vote. (Ask someone in your local politics which parts of town have the most influence with local officials.) So if the president were picked by the voters directly, every state would desperately want its people to turn out. But in an electoral-vote system, a state retains the same number of electoral votes whether 100 percent or 10 percent of its people vote. As we saw this year in Wisconsin and North Carolina, that makes meddling with voting rights very tempting indeed.
This, then, is the mechanism some people I respect are putting forward as the nation’s savior. Would it be democratically legitimate for electors to switch their votes because Clinton has won the popular vote? Why? This result was foreseen when the campaign began. In 2000, both George W. Bush and Al Gore began before the election to assemble arguments to support taking office even after losing the popular vote. John Kerry’s campaign was also ready to justify replacing George W. Bush in 2004 even if Kerry lost the popular vote to Bush.
Clinton’s popular-vote victory is nearly unprecedented in its sheer size. The American people rejected Trump by a wide margin. As a minority president claiming a mandate for dictatorial powers, he is a mortal danger to American democracy. But a Clinton presidency obtained by such a switch would, in a different way, also risk destroying the system; Trump voters would be as outraged by that maneuver as Clinton voters if the tables were turned.
I wish as much as anyone that December 19 was an exit ramp out of the coming four-year nightmare. But in those four years the American people are going to need their Constitution, and they need to be able to trust those who claim to revere it. It won’t help matters if constitutional seers and scholars begin to convince themselves that the “Founding Fathers” are on the side of whatever outcome hinders Donald Trump. That will only further discredit the rule of law in the eyes of a people who clearly have doubts about it going in.
Electors are of course free to vote their consciences. If they think a popular-vote loser shouldn't be president, they don't have to vote for him. If they become convinced of something awful about Trump--say, that he is a tool of a hostile intelligence service subverting the United States--they can defect.
But let’s not pretend that Madison and Hamilton wanted them to. Nobody in 1787 foresaw 2016.
If they had, I wonder whether they would have bothered with the whole business.