So let’s talk some more about the Electoral College.
This is one of those rare, heady moments in the life of a U. S. historian when a decent number of Americans seem interested in the American past–in this case, the question of what the heck the Framers of the Constitution were thinking when they devised such an complicated mechanism for electing our president.
In a post week before last, I shared my opinion that “the Electoral College has no place in modern democracy.” In making that claim, I was thinking primarily with regard to the Framers’ underlying world view. My point was not that the Electoral College could not serve some salutary purpose in twenty-first-century America–it is possible that it has had some positive, if unintended, consequences. Rather, my hope was to underscore that our method of electing our highest officer originated in a set of assumptions about human nature, the natural order of society, and the role of government that a large majority of Americans would now heartily reject.
As a rule, the Framers were skeptical of human nature and suspicious of democracy, which is a major reason why precious few of them supported a direct popular election of the president when the matter came up at the 1787 Constitutional Convention in Philadelphia. This is also why the Framers tended to think of all national office-holders–including members of the Electoral College–as “free agents” who should make decisions for the good of the people without necessarily being restrained in all cases by the will of the people.
James Madison put it this way in Federalist no. 63:
As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?
So, no, it would not be unconstitutional if any or all of the 538 members of the Electoral College decided to cast their ballots on December 19th for someone other than the candidate who received the most popular votes in their home states. It would, however, be illegal for them to do so in the thirty states that currently mandate by law that electors cast their ballots for the candidate who won the state race. (The penalties for violating such laws are minimal–typically a fine of $1,000 or less–and it should be noted further that the Constitutionality of such laws has never been tested.) More than illegal, though, if the outcome of the election was altered thanks to “rogue” electors voting their conscience, tens of millions of Americans would view the process as fundamentally illegitimate. It would be absolutely constitutional, arguably exactly what the Framers of the Constitution had in mind when they created the Electoral College, but illegitimate nonetheless. That was my point.
Since I last wrote on this topic nearly two weeks ago, countless commentators have weighed in the Electoral College. Some have called for its abolition–although as I noted last time, that is simply not going to happen any time soon. Others have lamented the occasional instances of the Electoral College electing candidates who lost the popular vote but suggest that the danger of abolishing the Electoral College outweighs the potential benefits. One of the weaker arguments I have seen to this effect came from William M. Daley, former Secretary of Commerce under Bill Clinton and White House Chief-of-Staff under Barack Obama (see here). (A considerably stronger argument along these lines that came out within a week of the election was by attorney James Hulme and historian Allen Guelzo. I don’t agree with their reasoning in several respects, but still find their argument worth considering.)
Just this week there have also been pieces highlighting creative efforts to use the Electoral College itself to change the election’s outcome. In a piece in Tuesday’s Washington Post (“The Electoral College Should be Unfaithful“), columnist Kathleen Parker applauded efforts of the so-called “Hamilton Electors” to persuade Republican electors to join with Democratic electors in support of a Republican moderate. More creatively, in an editorial on Monday, Michael F. Cannon of the Cato Institute, a libertarian think tank, has floated the idea of Hillary Clinton “releasing” her 232 electors and encouraging them to support a moderate Republican such as Mitt Romney or John Kasich, in which case if as few as 38 Republican electors would join them, the Electoral College might still deny Donald Trump the presidency in lieu of a more qualified, less divisive Republican alternative. Cannon knows that this is a long-shot, not least of which is that Donald Trump would call his supporters to the barricades, there would be legal challenges beyond imagining, and any moderate Republican willing to accept the presidency by such a process would deemed an imposter by millions of voters.
Only yesterday, John Kasich made clear that he would refuse to play such a role on the grounds that the “election is over.” He’s almost certainly right. But think about what he has said. “The election is over.” The Framers of the Constitution would have said that the election hasn’t been held yet. It’s scheduled for December 19th.