The Electoral College and the Election of 2016
The 2016 presidential election may just be the election feared by the Founding Fathers and the reason they instituted the Electoral College in the first place.
Remember: the citizens of the United States do not directly vote for President. They vote for a slate of electors that may (or may not) vote for the candidate wanted by the majority of voting citizens. The real election actually occurs in December when the electors meet in each state to cast their votes. Those votes are sent to Congress and then, in January, Congress meets to count those votes and officially announce the winner.
This means that if Donald Trump wins the general election in November, he doesn’t automatically win the presidency (nor does Hillary Clinton, for that matter). The Electoral College could radically change the outcome of the election.
Why do we have this system? During the debates on the Constitution, the delegates were very divided on just how to elect the chief executive. Some argued for direct voting; some argued for the President being appointed by a “Chief magistrate.” Alexander Hamilton wanted a president appointed for life.(1) At issue, mainly, was the belief by our Founding Fathers that the people could not be trusted. Originally, the only place in our government that allowed for direct election by the people was for the House of Representatives. Prior to the passage of the 17th Amendment in 1913, senators were appointed by the states. And for the President, we have the Electoral College as a safeguard.
The Founding Fathers stressed the idea that they wanted a republic and not a direct democracy. To the vast majority in the Constitutional Convention, it was believed that only those citizens with property should be allowed to vote. They were particularly worried that the wishes of property owners could be “overruled by a majority without property.”(2) They saw the general electorate as being generally ignorant and more readily influenced by unscrupulous politicians.
Not only that, they were worried about dictators and people who were prone to abuse their power to gain more power. On June 2, 1787, James Wilson, a delegate from Pennsylvania, argued
there are two passions which have a powerful influence on the affairs of men. These are ambition and avarice; the love of power, and the love of money. Separately each of these has great force in prompting men to action; but when united in view of the same object, they have in many minds the most violent effects. Place before the eyes of such men, a post of honour that shall be at the same time a place of profit, and they will move heaven and earth to obtain it…It will not be the wise and moderate; the lovers of peace and good order, the men fittest for the trust. It will be the bold and the violent, the men of strong passions and indefatigable activity in their selfish pursuits. These will thrust themselves into your Government and be your rulers.(3)
The election of the President was clearly a divisive issue at the Constitutional Convention. On July 17, 1787, the Convention agreed to have a President appointed by the Legislative Branch. However, two days later, they changed their minds and wanted the president elected by state electors. And two days after that, they changed their minds again and supported the idea of an appointed president. Finally, the Convention turned to a committee chaired by David Brearley, a delegate from New Jersey, to work out the office of President. The Brearley Committee is largely responsible for shaping the Electoral College, which was finally agreed upon on September 7, 1787.
The Electoral College was created to thwart the power-hungry and provide a safeguard for an electorate they did not trust. Therefore, the electors in the Electoral College were not bound to cast a vote for individuals if they felt it could damage the country. The Electoral College also negated, in the eyes of the delegates to the Constitutional Convention, the main problems with having a national legislature elect the president. The delegates did not want an executive who owed his position to the legislature. They also thought having the Electoral College would “avoid the great evil of cabal”(4) that could be found in the legislature. As all of the electors cast their votes on the same day in different parts of the country, it was believed that this would cut down on unwanted influence and corruption. The Electoral College became another means by which power could be checked.
However, the methods for choosing electors were left up to the states and so today there are many different laws regarding the behavior of electors. Over the years, many states have passed laws requiring that electors cast their votes for the candidate to which they have been pledged. But twenty-one states do not have such laws. That means an elector can, although pledged to one candidate, vote for another candidate.(5) These electors are called “Faithless Electors.” And it has happened in our history before — 157 times, to be exact — but not enough to ever have changed the outcome of an election.
But that could change this year.
The Republican establishment is not too happy with their nominee. If Donald Trump were to win the general election, those Republican electors in those states without laws governing their votes could vote for someone else. That could possibly throw the election to the House of Representatives if no candidate would have a clear majority of votes. There, in the House, the representatives would elect the president from the top three vote-getters and it could very well be someone different from the winner in November (to make matters even more confusing, the Senate would then elect the Vice-President).
If this were to happen, a Constitutional crisis would undoubtedly ensue. Although states have laws governing the votes of electors, these laws have not really been tested by the Supreme Court.
And let’s be honest: most Americans do not understand the Electoral College. Very little attention is made to the casting of votes that occurs in December by the electors. The announcement of the results of that election in January has been only a mere formality. As a teacher, the Electoral College is one of the most difficult things to explain to high school students. Trust me, I’ve done it for years. And I’m not sure I truly get it either.
Regardless of our understanding of the system, the Electoral College is our way of selecting a president. And it was created this way by design. In Federalist Papers: No. 68, Alexander Hamilton argues that through the Electoral College “the process of election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”(6)
After 227 years using this system, 2016 may become the biggest test of the Electoral College after all — -a test that perhaps the Founding Fathers saw as an eventual inevitability.
— — — — — -
(1) James Madison. Debates in the Federal Convention of 1787, June 18. (http://teachingamericanhistory.org/convention/debates/0618-2/)
(2) “Founding Fathers and the Vote.” Library of Congress. (http://www.loc.gov/teachers/classroommaterials/presentationsandactivities/presentations/elections/voters.html)
(3) Madison Debates, June 2, 1787. (http://avalon.law.yale.edu/18th_century/debates_602.asp)
(4) James Madison. Debates in the Federal Convention of 1787, September 4. (http://teachingamericanhistory.org/convention/debates/0904-2/)
(5) Some states have laws to punish Faithless Electors with fines and, in some cases, jail time. However, the Constitutionality of these laws have not been tested.
(6) Alexander Hamilton. The Federalist Papers: No. 68. (http://avalon.law.yale.edu/18th_century/fed68.asp)
