The electoral college is in the news again, thanks to the outcome of the recent presidential race. The latest count–now that the final tally is in from Michigan–shows Trump winning the electoral college handily, 306-232, while losing the popular vote by more than two million ballots, or about 1.7 percentage points. President-elect Trump thus joins a short list of individuals to win the presidency while losing the popular vote–the others being John Quincy Adams (1824), Rutherford B. Hayes (1876), and George W. Bush (2000).
Predictably, Republicans have rediscovered a deep appreciation of the Founding Fathers for instituting such a wise mechanism for selecting the chief executive. Most notably, Donald Trump–who as late as 2012 declared the electoral college a “disaster for democracy–now thinks it a “genius” system. Democrats, for their part, are incensed that the popular will has been thwarted and respond in one of two ways. Some, like Nancy Pelosi, are calling for a constitutional amendment to abolish the institution entirely. Others are encouraging electors to disregard the vote of their states and cast their ballots for the candidate who actually won the popular vote.
Clearly, partisan self-interest is driving supposed principles on both sides, and most Americans will recognize that and respond in kind, i.e., according to their partisan leanings. This is unfortunate, because the problems with the electoral college are real, and need to addressed. Partisan convictions will insure that this never happens, however. According to the Constitution, the electoral college cannot be eliminated without a constitutional amendment, and that would require, not only that two-thirds of both houses of Congress agree to a proposed amendment, but also that three-quarters of the states then go on to ratify the proposed change. In sum, there is absolutely no way to eliminate the electoral college without sustained and extensive bipartisan support, which is another way of saying that it ain’t happening any time soon.
So for now, all we can do is point out that the electoral college doesn’t remotely function as it was intended to by the Framers of the Constitution, and that neither the defenders or the critics of the institution are interested in seeing that happen.
Precious few of the delegates to the Philadelphia Constitutional Convention of 1787 were eager to see the executive of the new government chosen by the direct election of the people. There were a few lone voices for this alternative, but most deemed it either unwise or unfeasible. Whatever they thought about the intellectual faculties of the common man, few believed that the rank and file of Americans would have enough knowledge of national affairs and distant statesmen to choose wisely.
Most of the delegates favored one of two alternatives to direct election. One camp advocated that the president be chosen by the state legislatures. The other proposed that he be elected by Congress, much like the prime minister in the British parliamentary system. The electoral college was a compromise between these options in that the state legislatures were to chose electors who would vote for president, and then when no candidate received a majority of the electoral votes–as the Framers fully expected to be the norm once George Washington had left the scene–the House of Representatives would make the final decision in a run-off. The result was that, in a “normal” election year, both the state legislatures and the Congress would play a role in the election of the president.
But what role would the people play? The best explanation of how the Framers would have answered this question comes from the pen of Alexander Hamilton. During the debate over ratification in 1787-1788, Hamilton, James Madison, and John Jay penned a series of eighty-five essays in support of the Constitution that became known as the Federalist Papers. In Federalist no. 68, Hamilton offered the fullest discussion of the way that the electoral college would function and the part that popular opinion would play in regard to it.
In explaining the structure of the electoral college, Hamilton began by observing that the Framers thought it desirable “that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.” He then went on immediately to describe the electoral college as a body of individuals who were to apply “a judicious combination of all the reasons and inducements which were proper to govern their choice.”
In an editorial in this morning’s Washington Post, Harvard law professor Lawrence Lessig quotes Hamilton’s statements as grounds for three conclusions: 1) Barring extraordinary circumstances, the Framers intended that the popular preference should determine the choice of the president. 2) They intended the electoral college to serve as a “safety valve on the people’s choice” that would either affirm or (on rare occasions) overturn the decision of the voters. 3) Given that Hillary Clinton is clearly qualified to serve as president, there is no good reason for electors to overturn the people’s choice. Ergo (I imagine that’s what they say at Harvard), the electoral college would be acting consistently with the intentions of the Constitution’s Framers by electing Hillary Clinton over Donald Trump.
Needless to say, Lessig is a Democrat. (He actually briefly sought the Democratic nomination for president last fall.) I don’t take issue with his editorial on partisan grounds, however, but on historical ones. Lessig’s training is in economics and philosophy, not history, and so he may actually believe that his interpretation of Federalist no. 68 is accurate. It’s not. Whether intentionally or accidentally, he grossly misrepresents what Hamilton was arguing.
When Hamilton observed that the Framers believed that “the sense of the people should operate in the choice” of the president, he did not have a direct election in mind. Read in context, it is clear that, to Hamilton’s mind, the public’s role was to have a voice in the selection of electors. That role might be very indirect. The Constitution does not specify how the states are to choose electors, and in the early years of the republic the vast majority were simply appointed by the state legislatures. This means that, to the degree that the average voter had a voice in the selection of electors, it was by voting for candidates to the state legislature, who would at a later time appoint electors.
It is hardly the case that the Framers then charged the electoral college with the job of quality control, overturning the people’s choice when the masses had chosen poorly. Rather, there was no expectation that the electors would pay any attention to the popular vote for the presidency, or even that there would be a popular vote for president. Although states gradually began to institute popular elections for the president, this was not immediately the norm, and we do not even have a recorded popular vote for president for the first nine presidential elections in American history.
It is important to remember that the Framers of the Constitution did not anticipate the rise of formal political parties (and would have been distressed by the prospect). The “sense of the people” was not to be registered by voters supporting state legislators of one political party over its rival, nor were electors to be chosen because of their public identification with one party or its opposite. The people’s role was simply to choose electors (or state legislators, who would choose electors) who were known for wisdom and integrity. The electoral college that resulted would not refer to the popular vote at all. Instead, Hamilton explained, it was hoped that they would “possess the information and discernment requisite” to selecting the next president.
Lessig’s contention that the Framers would have wanted the electoral college to be guided in any way by the people’s choice shows a basic misunderstanding of the historical context. He is right, however, that the Framers wanted members of the electoral college to be “citizens exercising judgment, not cogs turning a wheel.” On those grounds, it would be entirely in keeping with the values of the Framers of the Constitution if electors from red states cast their ballots for Hillary Clinton on the grounds that Donald Trump lacks the experience, the temperament, the discernment, and the integrity that the office of president demands.
The majority of Americans, would see Clinton’s election by this means as illegitimate, however. Americans in 2016 share few values in common with the Framers of the Constitution we claim to revere. Generally, the Framers held to a world view that scholars term “republican” (no relation to the Republican Party): they held a skeptical view of human nature and maintained that the proper function of government office holders was to rule virtuously on behalf of the people’s welfare but not necessarily constrained by the people’s preferences in every matter. For nearly two centuries, Americans have ascribed to a democratic worldview that rests on a positive view of humans as morally good and insists that the role of elected officials is to serve as a mouthpiece for majority preferences.
Not all of us will celebrate this repudiation of the values of the Framers. I certainly don’t. But this doesn’t change the fundamental reality: the electoral college doesn’t belong in our world. It originated from a set of assumptions that the majority of Americans no longer affirm, and many would now roundly denounce. It survives because of the difficulty of convincing both major parties, simultaneously, that neither stands to gain from its anachronistic presence.