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