Notes on a Theory…

Thoughts on politics, law, & social science

Defending a System that Has Long Since Collapsed: The Electoral College

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Since we’re getting closer to the presidential election (which will not come soon enough), we’ll soon be in that brief moment when we will temporarily notice that presidents are not chosen by elections, but by the strange institution of the electoral college.  Personally, I find the substantive defenses of the electoral college to be so weak they’re barely worth discussing.  It seems to me these are merely tossed in along with the real reason for most, which is an argument based in tradition.  But this too is flawed.  Must we maintain the present system for selecting a president if we wish to be faithful to the Constitution and those who framed it?  Only ignorance of the text and our history would lead us to answer yes.

The present Electoral College system bears no resemblance to the Framers’ design, and thus cannot be justified by reference to their intent.  The Constitution specifies a process that would seem entirely foreign to the modern observer.  Each state legislature is empowered to determine how their electors would be chosen.  Individual electors were to be chosen in each state, unconnected to political parties (which the Framers’ abhorred) and thereby not committed to any particular candidate. Electors in each state were to meet, in order to deliberate and choose two candidates, one of whom was to be from out-of-state.  This process was simultaneously a nomination and selection process.  Electors did not choose from some pre-existing slate of candidates.

These state-by-state meetings were supposed to function like a jury – a group of citizens pulled from the larger population for a particular purpose, who would return to the population on completing their task.  Electors were to make an independent judgment.  It would be no more appropriate for an elector to commit themselves before hand then it would be for a juror to decide a case before trial.  The candidate with the most votes, if he received a majority, would be president.  The candidate with the second most votes would be vice president.  This is how the system functioned in the first two presidential elections, when electors unanimously selected George Washington.

By the election of 1800, the rise of political parties, despite the Framers’ clear wish to prevent them, had broken the Electoral College system they had created.  It has never functioned as originally intended since that time.  That election led to modest constitutional reforms, embodied in the Twelfth Amendment, which accepted political parties as part of the process, and ensured that electors would choose presidential and vice presidential candidates separately.

How we as Americans choose a president had changed considerably since that time, but much of what we today associate with the Electoral College is not determined by the text or by the Framers’ intent.  The rules are generally a product of state law, not constitutional command.  First, we have a primary process to decide nominations for each political party.  In the general election, voters see ballots that list the names of the various presidential candidates, but are really choosing electors who have previously committed to those candidates.  Despite these commitments, those electors are free to vote as they please.  Most states give all of their electoral votes to the candidate who wins the most votes in that state; two do not.  None of these things is a product of the Framers’ design.  Electors still meet in each state, but their role is simply to ratify the choice made by their state’s voters.

Debate over the Electoral College tends to ignore these facts. We are told either that we must maintain the system to ensure fidelity to the Founders’ concerns, such as federalism, minority rights, or protecting the concerns of small states, or reject it because of the flaws they left us.  For the latter group, the tendency is to assume that these flaws reflect the Framers’ purposes – a distrust of the people, and a belief in elite control over democratic institutions.  Both sides miss the point.  Regardless of anyone’s private motives, like most of the original constitution, the presidential selection process was justified on the basis of popular sovereignty.  Their system held out the possibility of popular control, however indirect that control was meant to be.  But more importantly, the framers’ original design may well have done those things, but cannot justify today’s system, which is considerably different.

The Framers left us—the people—two tools for changing the rules.  The first was constitutional amendment, which they themselves used to modify the system in the early days of the republic.  An amendment could jettison the Electoral College and replace it with a direct election.  But they also specifically empowered state legislatures to decide most of the details of the system.  One proposal, the National Popular Vote, would ensure that the candidate who received the most votes would also receive the electoral votes to win the presidency.  It has already been adopted by nine states.

If we the people become convinced that the system we have today does not provide us with control we deserve, then it is our right and duty to change it.  Like politicians have over the past two hundred years, we can do so through state laws rather than constitutional amendments.  Making those changes would help restore the principles of the Constitution; failing to do so makes a mockery of them.

Thomas Jefferson warned us long ago to avoid treating the Constitution with “sanctimonious reverence,” insisting that “institutions must advance…and keep pace with the time.”  At a time when Americans feel increasingly dispossessed from government, failing to ask fundamental questions about how to best strengthen our democracy is no longer a luxury.

Fo what it’s worth, I’d like to see the development of a democracy agenda.  Rather than arguing about all the many walls our system  (both constitutional and subconstitutional) fails to live up to our ideals, we need to connect the various problems and solutions.  And while constitutional change is a worthy goal, there are many things we can do short of that which would improve things tremendously, and make constitutional change more likely. That agenda could include–an end to the unconstitutional filibuster, a universal right to vote, and public funding for campaigns, along with jettisoning the electoral college.  And we can do the last one (and for that matter, the first one) in the knowledge that we aren’t killing anything the Framers put in place.

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  1. [...] Obviously, the lame duck sessions aren’t the only culprit here.  The Republican Party’s lurch to the right has been a product of organizational politics that serve to insulate it from electoral control, and the vast role of money in politics serves to make legislators in both parties dependent on the funders rather than the people (a problem that has gotten worse in recent decades but is not exactly new either–funders have usually set the bounds within which popular politics can operate, as Thomas Ferguson has argued).  There are also almost no independent organizational structures that allow regular people to effectively pressure their representatives.  There are plenty of other undemocratic practices and rules we need to target together, as part of a larger democracy agenda. [...]


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