This Election Has Shown It Is Time to Strengthen the Electoral College

Guess what.  The U.S. Constitution does not guarantee the right of the people to elect their president directly.   As any middle-schooler can tell you, our system is based on a College of Electors, selected by each state, who in turn have the authority to cast the first ballot for president.  In fact, the Constitution does not even guarantee the right of the people to select their electors.

Section 1 of Article 2 of the Constitution provides, “Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors . . . .”  (Emphasis added).  Although the Electoral College has been modified from time to time through amendments to the Constitution, none of those amendments explicitly guarantees the right of the people to vote either for the president or for an elector.

Put simply, the Constitution establishes a system where each state chooses electors to send to the Electoral College.  The number of electors is equal to the number of Representative to which that state is entitled in the House of Representative, plus the number of Senators.  In addition, the District of Columbia, which is not a state and is not entitled to any representation in Congress, is provided with no more than the same number of electors as the least populous states.  The electors meet in their respective states and vote, in separate ballots, for president and vice president.  The results are transmitted to Congress.

A person must win a majority of votes from the Electoral College to be elected president or vice president.  If no candidate wins a majority of votes for president, the House of Representatives has the task of choosing the president.  But, the House votes by state.  Each state is given one vote, and the Representatives can only for one of the three top vote getters from the Electoral College.  In the Senate, if there is no Electoral College majority for vice president, Senators vote for one of the two top vote getters. 

Why did the Founding Fathers establish such a system to select the chief executive of the United States?  As with many of the structures created through the Constitution, the Electoral College was created out of a fear of concentrating too much power in one person or one group of people.  To put simply, the Founding Fathers had just fought a revolution to break away from the rule of a tyrant. 

But as John Madison noted in Federalist No. 10, tyranny could include an “overbearing majority.”  Madison warned that a group of citizens, “whether amounting to a majority or a minority of the whole” could unite to push “some common impulse or passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Madison recognized that people are fallible and selfish, and that this would cause differences of opinions and interests.  A group of people, to whom he referred as “factions,” could join together to pursue a common zeal over their particular opinion or even of a particular leader.  And thus divided into different parties, they could develop “mutual animosity” and attempt “to vex or oppress each other” rather than “to cooperate for their common good.”  Madison’s driving point was that the tyranny of a majority could work to oppress and infringe on the rights of a minority.  For these reasons, he, and other Founding Fathers, opposed pure democracy.

Instead, Madison argued for the creation of a body of people chosen by the citizens through which the views of the public could be passed.  The hope was that by choosing wise representatives, the good of the public as a whole could prevail over parochial interests and passions.  That is, Madison argued for the creation of a republic.

Yet, through the Constitution, the Founding Fathers did not create a purely parliamentarian form of government.  That is, they did not create a government where the legislature chose the person or group of people who would execute the laws.  As Alexander Hamilton explained in Federalist No. 88, the Founding Fathers wanted to make the chief executive officer, that is the president, independent from the legislature.  That is, they wanted the president to be free of any taint or influence from a pre-existing body.  It was thought that if the president were chosen by Congress, the president might be tempted to suppress his duty to pursue the good of the whole to the temptation to please Congress in order to preserve his tenure in office.

Putting the two fears together, that is the fear that a majority can itself be tyrannical, and the fear that an executive who is chosen by the legislature would be dependent upon the legislature and thus sacrifice the pursuit of the common good, the Founding Fathers devised a system whereby the people would choose a group who would come together only once for the sole purpose of selecting a chief executive, and then be disbanded.  The hope was that this smaller group of people, which we call the Electoral College, would give serious deliberation to the qualities needed for leadership, and choose a wise and virtuous leader.

In that way, the Electoral College was meant to protect the new republic from the dangers of demagoguery.  That is, a charismatic person could influence the general public by inflaming passions instead of reason.  Once in power, a demagogue could then trample on the rights of the minority.

Under the system envisioned by the Founding Fathers through the Constitution, the role of the people was no to select a particular person to be their president.  Rather, they were to select a group of people wise enough to select a person to be the president.

Unfortunately, in practice this is not was happens.  Through tradition, over time, the states have mostly chosen to hold popular elections where that state’s entire delegation of Electors would go to the winner of the popular vote.  In all but Maine and Nebraska, the states have chosen a winner take all approach. That is, each candidate nominates a slate of Electors, and the winner has his or her chosen Electors named to the Electoral College.  Thus, instead of choosing a group of people, individually, to in turn select our president, we vote for the person we want to be president, and the state’s Electors go to that person.  This turns the presidential election into nothing more than fifty-one different elections.

This system, which has grown out of tradition and not out of any constitutional requirement, has some unintended consequences.  First, it makes political parties indispensable.  Second, it distorts the popular vote.

With respect to political parties, in order to win the presidency, a person must be able to garner a few hundred people who will be loyal and vote for him when the Electoral College meets.  This means that a candidate must have an organization, and it must be on a national scale.  This is why it is virtually impossible for independent or third party candidates to win the U.S. presidency.

With respect to the popular vote, each state is guaranteed at least three Electors.  But, there is no guarantee that population is evenly spread across the states.  Thus, in less populous states, like Montana and North Dakota, voters have a disproportionately large say in who will become president.  It also means that it is entirely possible for a person to receive more popular votes for president, but because those votes may be concentrated in one state, lose the Electoral College count.  This has happened three times in U.S. history.

But, there is yet a third unintended consequence.  This system as it is currently configured is more vulnerable to demagoguery.  Specifically, most people today receive their news through television.  Television is a medium that thrives on images and short messages.  To get a message across, particularly on news programs, images must elicit an emotional response and do so in a short period of time.  Thus, the ten second sound bite reigns.  Television is not a medium conducive to a reasonable deliberation of complex issues.

We see this now in news shows and political fora.  Formats are not meant to encourage an intelligent dialogue as they are to encourage shouting, loud disagreement and entertainment that targets the short attention span.  In order to prevail, a person must look good, and have a catchy slogan.

But it is this manipulation of passions and emotions that motivated the Founding Fathers to create the Electoral College in the first place.  And indeed, this 2016 election has demonstrated the very danger that gave our Founding Fathers nightmares.  Both major political parties have been manipulated by demagoguery, and thus have nominated candidates with which many in the general public are completely dissatisfied.  Name recognition and entertainment have become more important factors in selecting candidates than a serious discussion of the issues that face this country.  Thus, this year many U.S. voters are left with the choice of voting for a candidate they don’t like in order to stop a candidate they hate.

The answer to this dilemma may simply be to strengthen the Electoral College, and have it return more to the roots of what the Founding Fathers intended.  That is, the U.S. public should go back to selecting a group of people who will in turn select the president rather than voting for the president directly.

One way to strengthen the Electoral College would be to eliminate the winner take all system.  Rather than vote for a single person, and all of a state’s Electors go to that person, voters should be forced to choose the Electors directly and by name.  If a state has six Electors, then the voters in that state should select six people to attend the Electoral College.  The names of the presidential candidates themselves should not be on the ballot.

The elections should not permit voters in a single sweep to select a slate of candidates. Each candidate should be selected separately.  Moreover, the candidates for Electors should not be grouped by party or by whom they support.  Indeed, nowhere on the ballot should a political party appear.  They should be listed either randomly or alphabetically.  This would have the effect of having a voter actually research the candidates for Electors, and determine if that person would be wise enough to in turn select the president.  If a person wants to select Electors all from one party, then have that voter research and know that information before coming to the ballot box.

Moreover, election of the Electors should permit vote stacking.  That is, if a state entitled to six Electors, then each voter in that state should be entitled to six votes and use them as they please.  If one voter wants to use all six votes on a single candidate to ensure that a particular viewpoint has a seat at the table, then so be it.

Finally, the Electoral College should not be a single day event where the Electors simply cast a vote.  To the contrary, it should be a multiday affair, where each Elector has an opportunity to say either what issues they find important, what qualities in a candidate they find important, or which particular person they may want as their president.

Yes, these proposals would remove the choice of presidency one step further away from voters.  But that does not make it undemocratic.  Voters will still have choice and a say in their chief executive.  But that choice would be less likely left to the winds of passions, ignorance and demagoguery.  It would instead make the process more deliberative and serious.

By: William J. Kovatch, Jr.