Sunday, December 18, 2016

The Electoral College

With the Electoral College vote coming up, there has been a lot of debate about why we have an Electoral College instead of direct popular election.  Some say it is because the Founding Fathers distrusted the common people and wanted to put a buffer between them and election of the President. Others say it was to prevent the rise of populist demagogues, or to protect slave states.  My history of law professor saw it as something far more innocent -- the unfamiliarity of the whole practice of tabulating votes over a wide area.

Yet reading over James Madison's Notes on the Constitutional Convention, it becomes clear that none of these are the true reason.  Rather, no one anticipated that there would be nation-wide political parties to choose rival candidates.  Indeed, political parties were seen as corrupt at best, and sinister conspiracies at worst.  Instead, it was assumed that after George Washington, there would not be any candidates of national prominence.  Instead, the voters of each state (whether by electoral or popular vote) would choose the most eminent person from their own state.

The alternative was general seen as election by Congress. This was generally feared because Congress was a standing body, known in advance, and meeting in a single place.  All these things were seen as carrying the risk of conspiracy, intrigue, corruption, and foreign meddling.  It also destroyed the independence of the executive and made him subordinate to the legislature.
The system set forth originally was intended to cope with these anticipated problems:
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.
The Electoral College allowed each state to make its choice clear -- clearer than an attempt to aggregate all the votes from all the states. By having the Electors chosen solely to choose a President and meet separately each in their own state, the system reduced the likelihood of conspiracy or corruption. Requiring each Elector to choose a second candidate from outside of the state, they gave an opportunity for a candidate of national prominence to win. Having Congress choose from among the top five candidates rested on the assumption that each state would have a different winner. Congress would choose the winner from the five largest states.  Having the House, rather than the Senate, vote if there was no majority removed objections to the "aristocratic" nature of the Senate, yet having it vote by states gave small states the same weight they would have in the Senate.  

And, it should be noted, this system was not controversial at the time. Indeed, in Federalist Paper No. 68, Hamilton commented:
THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded. 
Yet it became apparent as soon as the very first election that the system for dealing with a deadlock in the Electoral College was seriously flawed. As originally written, whoever each elector was required to vote for two candidates, at least one of whom was not from his own state. Whoever won the most votes would be the President and the runner-up would become Vice President. It became clear with the very first election,even though everyone knew that George Washington would be unanimously elected, that if the Electors all voted for the same candidate for Vice-President, there would be no legal distinction as to which was which. By the time John Adams ran for President, candidates were beginning to run in pairs, with one as candidate for President and one for Vice President. But electors often split their tickets, with the result that Adams was elected President and his rival, Jefferson, became Vice President. Adams' administration was continually hampered by having his leading rival as embedded in his government and impossible to remove.

In turn, when Jefferson was elected, there was no ticket splitting, and the team of Thomas Jefferson and Aaron Burr won. But there was no official rule as to which of them was President and which was Vice President. Even though everyone knew Jefferson was supposed to be President and Burr Vice President, officially they were declared a tie and the House went until February, with 36 ballots and all manner of intrigue before finally voting in favor of Jefferson. After this the Twelfth Amendment was enacted, arranging for the President and Vice President to run as a pair, with clear rules as to which was which. The House continued to vote by states.

This procedure has been used only once since, in the 1824 election, when the Electoral College split among four candidates. Although Andrew Jackson won the most electoral and popular votes, Henry Clay (then Speaker of the House) swung the House in favor of John Quincy Adams in exchange for being appointed his Secretary of State. Jackson and his followers were understandably outraged and went on to win the following election.  The system of breaking Electoral College deadlocks by the House of Representatives, voting by states, has proven a very bad one in the few cases that it has been used. Many believe that the Supreme Court's ruling in Bush v. Gore was made out of fear that the Florida recount would continue past the deadline for the Electors to meet, with the result that the election would be thrown into the House (as it is called).  The Supreme Court acted to prevent a return of the system that had worked so badly every time before.

For further dull details, see this post on my other blog.

No comments:

Post a Comment