The Electoral College, Part 3

Welcome back! Let’s dive right in…

The Electoral College Today

The first thing we have to get straight right now is WE DO NOT LIVE IN A DEMOCRACY!! WE LIVE IN A CONSTITUTIONAL REPUBLIC!!

The Constitution, as a whole, was designed to protect the Rights of the minority from the tyranny of the majority. It is a document designed to specifically limit the scope of government while protecting the Natural Rights of the individual. James Madison wrote, "Those who framed and ratified the Constitution believed that as power was less likely to be abused by majorities in representative Govts. than in democracies, where the people assembled in mass, and less likely in the larger than in the smaller communities, under a representative Govt. inferred also, that by dividing the powers of Govt. and thereby, enlarging the practicable sphere of Govt. unjust majorities, would be formed with still more difficulty, and be therefore the less to be dreaded."(8)

One of the most important parts of the distinction between a Republican form of government and a Democracy is that one of the purposes of the Electoral College is to prevent "an interested and overbearing majority" (2) and the "mischiefs of faction" (2) in our electoral system. A faction was defined as "a number of citizens whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." (2) What was then called republican government, as opposed to direct democracy, combined with the principles of federalism (with distribution of voter rights and separation of government powers) would countervail against factions. Basically, the Founders viewed direct democracy as one step above mob rule, that it would lead to either the tyranny of the majority or an oligarchy.

Regrettably, adopting the Winner-Take-All method of selecting Electors didn’t countervail against factions. In fact, it had the opposite effect of encouraging the rise of political factions and making the Electors nothing more than mouthpieces for the two dominant political parties. The Electoral College was supposed to prevent the population centers of the biggest cities from making the voices of the less-populated areas of the country inconsequential. It was supposed to make certain each State had an equal voice. Except for four elections, it hasn’t made a difference.(9)

Now, as mentioned in Part 1, the voices clamoring for the elimination have become more vocal since the 2016 Presidential Election. During the 91st Congress, a Constitutional Amendment was proposed to do just that. From 1969 to 1971, Representative Emmanuel Celler (D-New York), chairman of the House Judiciary Committee, and Senator Birch Bayh (D-Indiana) worked to replace the Electoral College with a ‘plurality system’ based on the National Popular Vote. In this system, the pair of candidates who had received the highest number of votes would win the presidency and vice presidency, provided they won at least 40% of the national popular vote. The word "pair" was defined as "two persons who shall have consented to the joining of their names as candidates for the offices of President and Vice President." (10) The proposition passed the House of Representatives and was passed on to the Senate. On September 8, 1970, the Senate began debating the measure. It was quickly filibustered by a coalition of 3 Democrat and 3 Republican Senators. On September 29, 1970, after two failed attempts at cloture, the Senate Majority Leader, Mike Mansfield (D-Montana) moved to lay the proposal aside so that the Senate could attend to other business. The proposal was never considered again and died when the 91st Congress ended on January 3, 1971. One other attempt was made on March 22, 1977, when President Jimmy Carter wrote a letter to Congress suggesting a number of reforms. In it, he wrote, “My fourth recommendation is that the Congress adopt a Constitutional amendment to provide for direct popular election of the President.”(11) Carter’s proposal didn’t go anywhere.

In 2008, National Popular Vote, Inc. began efforts to pass the National Popular Vote Interstate Compact, an agreement among States that they would each pledge their Electoral Votes to whichever Presidential Candidate won the national popular vote. This is an attempt to bypass Congress and the Constitutional Amendment process to enact a national popular vote for the office of the President. As of March 2019, twelve states and the District of Columbia have signed the pact, totaling 181 Electoral Votes. The Pact will go into effect when enough States totaling 270 Electoral Votes have passed and signed it.(12) Some Constitutional scholars believe that Article I, Section 10, Clause 3 of the Constitution requires Congressional consent before such a compact could be enforced. Attempts to implement the Pact without Congressional approval could be met with court challenges on a Constitutional basis.(13)

When the 116th Congress convened on January 3, 2019, Representative Steve Cohen (D-Tennessee) introduced a joint resolution proposing a Constitutional Amendment eliminating the Electoral College and replacing it with the popular vote for President and Vice President. While the Bayh-Celler Amendment proposed during the 91st Congress required that the winning candidate acquire 40% of the popular vote, the Cohen Resolution only requires a candidate to have the “greatest number of votes” to be elected. As of March 2019, no action has been taken on the resolution.

In both High School and College, I was taught that the Electoral College was created because of the distances involved between the States and the difficulties of long-distance communication. I accepted that my instructors knew what they were talking about. However, years later, I started hearing things that contradicted that view, so I began to do my own research. After spending years researching and weighing the subject, and weighing both sides of the discussion, I came to the conclusion that the educational system had failed me on this subject, that the Electoral College had been perverted from it’s original intent, and that a Constitutional Amendment was necessary, not to eliminate the Electoral College, but to reform it and put in place the district-based system the Founders originally had in mind.

I hope this three-part article has given you food for thought. Until next time, be good to each other!



Resources:

(1) Alexander Hamilton in Federalist #68

(2) James Madison in Federalist #10

(3) "Resolves of the General Court of the Commonwealth of Massachusetts: Passed at Their Session, which Commenced on Wednesday, the Thirty First of May, and Ended on the Seventeenth of June, One Thousand Eight Hundred and Twenty. Published Agreeably to Resolve of 16th January, 1812. Boston, Russell & Gardner, for B. Russell, 1820" – via Google Books

(4) "How the Electoral College Became Winner-Take-All" - Devin McCarthy, PhD PolySci, Duke University

(5) Chief Justice Robert Jackson, Ray v. Blair, dissent, 1952

(6) "Founders Online: James Madison to George Hay, 23 August 1823". Archived from the original on May 25, 2017.

(7) “Draft of a Resolution for the Legislature of New York for the Amendment of the Constitution of the United States, [29 January 1802],” Founders Online, National Archives, version of January 18, 2019"

(8) “James Madison to Unknown, re majority governments, December 1834,” Founders Online, National Archives, version of January 18, 2019

(9) 1876, 1888, 2000, and 2016

(10) "Text of Proposed Amendment on Voting". The New York Times. April 30, 1969

(11) “Jimmy Carter Letter to Congress, Jimmy Carter, March 22, 1977”

(12) www.nationalpopularvote.com

(13) Electoral College Reform Congressional Research Service - Thomas H. Neale, November 23, 2014

The Electoral College, Part 2

Let’s jump right back into the Electoral College…

Unfortunately, some States decided that the favorite Presidential candidate among the people in their State would have a much better chance if all of the Electors selected by their state were sure to vote the same way...a "general ticket" of electors pledged to a party candidate. (4) Thus, the Electors chosen by the state were no longer free agents, independent thinkers, or deliberative representatives. They became "voluntary party lackeys and intellectual non-entities." (5) Once one state took that strategy, the others felt compelled to follow suit in order to compete for the strongest influence on the election. (4)

When two of the most important architects of the Electoral College, James Madison and Alexander Hamilton, saw the “general ticket” method of selecting Electors being implemented by some States, they protested strongly. Madison and Hamilton both made it clear that this approach violated the spirit of the Constitution. According to Hamilton, the selection of the President should be "made by men most capable of analyzing the qualities adapted to the station." (1) Hamilton also maintained that the electors were to analyze the list of potential presidents and select the best one. He also used the term "deliberate". Hamilton considered a pre-pledged Elector to violate the spirit of Article II of the Constitution insofar as such electors could make no "analysis" or "deliberate" concerning the candidates. Madison agreed completely, stating that when the Constitution was written, all of its authors assumed individual Electors would be elected in their districts and it was inconceivable a "general ticket" of Electors dictated by a State would ever replace the concept. In fact, in a letter to George Hay, Madison wrote, "The district mode was mostly, if not exclusively in view when the Constitution was framed and adopted; & was [later] exchanged for the general ticket." (6) This became known as the 'Winner-Take-All' method. The Founders assumed when they wrote Article II, Section 1, that Electors would be elected by the voters of their district and that Elector was to be free to analyze and deliberate regarding who is best suited to be President. Madison and Hamilton were so upset by what they viewed as a complete distortion of the original intent that they advocated a Constitutional Amendment to prevent anything other than the district plan: "the election of Presidential Electors by districts, is an amendment very proper to be brought forward," Madison told George Hay in 1823. (6) Hamilton went further and actually drafted an Amendment to the Constitution mandating the district plan for selecting Electors. (7)

Starting in 1789, the States used a combination of the district-based plan, the Winner-Take-All plan, and direct appointment by the State Legislatures to select their Electors. Since 1836, statewide Winner-Take-All popular voting for Electors has been the nearly universal practice. As of 2016, Maine (since 1972) and Nebraska (since 1996) use the district-based plan, with two at-large Electors assigned to support the winner of the statewide popular vote.

*WHEW!* That's a lot of background! And this was just a 'short' summary...the 'broad strokes' if you will. So, then, this brings us up to the present. Next time, we’ll address the current condition of the Electoral College.



Resources:

(1) Alexander Hamilton in Federalist #68

(2) James Madison in Federalist #10

(3) "Resolves of the General Court of the Commonwealth of Massachusetts: Passed at Their Session, which Commenced on Wednesday, the Thirty First of May, and Ended on the Seventeenth of June, One Thousand Eight Hundred and Twenty. Published Agreeably to Resolve of 16th January, 1812. Boston, Russell & Gardner, for B. Russell, 1820" – via Google Books

(4) "How the Electoral College Became Winner-Take-All" - Devin McCarthy, PhD PolySci, Duke University

(5) Chief Justice Robert Jackson, Ray v. Blair, dissent, 1952

(6) "Founders Online: James Madison to George Hay, 23 August 1823". Archived from the original on May 25, 2017.

(7) “Draft of a Resolution for the Legislature of New York for the Amendment of the Constitution of the United States, [29 January 1802],” Founders Online, National Archives, version of January 18, 2019"

(8) “James Madison to Unknown, re majority governments, December 1834,” Founders Online, National Archives, version of January 18, 2019

(9) 1876, 1888, 2000, and 2016

(10) "Text of Proposed Amendment on Voting". The New York Times. April 30, 1969

(11) “Jimmy Carter Letter to Congress, Jimmy Carter, March 22, 1977”

I'm Baaaack! - This Time, The Electoral College!

Good day, friends and family!

Well, it's been three years and a bit over a month since my last post. Unfortunately, things got away from me, but I'm back now. I'll get back to Simply Me soon, but today, I want to address something that is in the news cycle right now: the Electoral College.

Since the founding of our Republic, we have heard rumblings from one political group or another about eliminating the Electoral College. Their reasons have been everything from, "the Electoral College propped up slavery," to, "the Electoral College diminishes the power of the individual vote in more populous states." Since the 2016 Presidential election, those voices have become more wide-spread, especially in the last few weeks as politicians have begun to declare their candidacy for the 2020 election. This is why I felt it is time to have a discussion about the Electoral College. I'll try to keep it as short as possible, but it IS going to be a long one, so please bear with me.

BACKGROUND

The Electoral College is established in Article II, Section 1 of the Constitution of the United States. It states, "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." As you can see, from the start, it was intended that the States would individually decide how the Electors were chosen. The Founders made several assumptions when they established the Electoral College, chief among these that individual Electors would be elected by the voters on a district-by-district basis, allowing for the widest electorate allowed in each State; and that each individual would, "exercise independent judgment when voting, deliberating with the most complete information available in a system that over time, tended to bring about a good administration of the laws passed by Congress." (1) It was also believed that this would enable the choice of the President to reflect the “sense of the people” at a particular time, not the dictates of organized factions, a cabal in a “pre-established body” such as Congress or the State legislatures, and independent of the influence of “foreign powers”. (1) The Founders also believed that "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 [tasks]," (1) as well as preventing someone with a talent for "low intrigue, and the little arts of popularity" (1) attaining office in spite of having no other qualifications.

Unfortunately, this didn't last long. Starting with the election of 1796, two political parties had emerged: the Federalist Party, backing John Adams, and the Democratic-Republican Party, backing Thomas Jefferson. Then, the original Electoral plan of having the runner up in the Presidential election being selected to be Vice President fell apart in the 1800 election when Thomas Jefferson and Aaron Burr tied in Electoral votes. This required the election of the President and Vice President to be decided by the House of Representatives. The Federalist Party was upset at being shut out of the Presidency this election, so they decided to try to embarrass Jefferson by electing Burr. The House was deadlocked for 35 ballots. On the 36th, Jefferson won when Alexander Hamilton, the leader of the Federalist Party, voted for Jefferson because he hated Burr's personal character more than he hated Jefferson's policies. This led to the proposal, passing, and ratification of the XIIth Amendment, which required separate ballots for President and Vice President, just in time for the 1804 election.

Over the years, the States tried different methods of selecting Electors. The Founders assumed this would take place by district, and that plan was carried out in many states until the 1880s. For example, in Massachusetts in 1820, the rule stated, "the people shall vote by ballot, on which shall be designated who is voted for as an Elector for the district." (3) In other words, the people voted for their local Elector on their ballot, whom they trusted later to cast a responsible vote for President, and not for the Presidential candidate himself.

That’s all for now. Come back tomorrow for Part 2.



Resources:

(1) Alexander Hamilton in Federalist #68

(2) James Madison in Federalist #10

(3) "Resolves of the General Court of the Commonwealth of Massachusetts: Passed at Their Session, which Commenced on Wednesday, the Thirty First of May, and Ended on the Seventeenth of June, One Thousand Eight Hundred and Twenty. Published Agreeably to Resolve of 16th January, 1812. Boston, Russell & Gardner, for B. Russell, 1820" – via Google Books

(4) "How the Electoral College Became Winner-Take-All" - Devin McCarthy, PhD PolySci, Duke University

(5) Chief Justice Robert Jackson, Ray v. Blair, dissent, 1952

(6) "Founders Online: James Madison to George Hay, 23 August 1823". Archived from the original on May 25, 2017.

(7) “Draft of a Resolution for the Legislature of New York for the Amendment of the Constitution of the United States, [29 January 1802],” Founders Online, National Archives, version of January 18, 2019"

(8) “James Madison to Unknown, re majority governments, December 1834,” Founders Online, National Archives, version of January 18, 2019

(9) 1876, 1888, 2000, and 2016

(10) "Text of Proposed Amendment on Voting". The New York Times. April 30, 1969

(11) “Jimmy Carter Letter to Congress, Jimmy Carter, March 22, 1977”
version of January 18, 2019