The Electoral College Should Do Its Job

posted in: Election Fallout | 0

More people have asked me to explain the Electoral College over the past two weeks than at any time since I last taught the subject in my American Government course. And at no time in memory has the Electoral College been more relevant to a presidential election. For as long as anyone can remember, electors have done little more than ratify the popular vote through an obscure procedure of interest only to C-SPAN junkies. But in a year when stopping Donald Trump has been an ongoing subplot in the reality television show we call American politics, the Electoral College has emerged as a constitutional choke-point where the results of November 8 could be set aside, at least in theory.

If we lived in a democracy, Hillary Clinton would be president-elect by virtue of having won 2.8 million more votes than her opponent. But we live in a republic, where the Constitution’s framers set up a system of elite presidential selection designed to keep the decision out of the hands of the masses and avoid the selection of an unqualified charlatan skilled at manipulating popular passions. In creating an Electoral College they envisioned an elite group with no collective self-interest whose singular purpose would be to elect the president, then disband. This sidestepped the problem of having congress select the president (a violation of the doctrine of separation of powers) and, like so much in American history, appeased slave states by apportioning electoral votes according to representation in the House and Senate, where the odious three-fifths compromise boosted their political strength. But they didn’t envision the emergence of political parties and the way party competition would turn the Electoral College into a rubber stamp for partisan decisions, where we assign states to the red pile or the blue pile and add up their electoral values until either red or blue achieves a majority. It’s usually so automatic that we skip over the part where actual electors cast actual votes. But they do.

Despite what you have been reading and hearing, Donald Trump has not yet been elected president.  That won’t happen until next Monday, when electors in each state, equal in number to the electoral votes of that state, meet in their state capitals and the District of Columbia to cast their votes. The process will be finalized in early January, when the votes of the electors will be announced before a joint session of congress and, if there are no objections, Joe Biden, in his role as president of the senate, will finalize the count and if Trump has the requisite 270 votes the election will be over.

What if he doesn’t? That would happen if at least 37 electors in Republican states defect from Trump and support another candidate when they assemble next week. Can they defect? Like everything else about the Electoral College, it’s complicated, because a number of states bind their electors to the state’s popular vote winner. Would they defect? It’s hard to see it happening in large numbers, because electors are partisans with strong incentives to act in the interest of the party, even if that interest conflicts with their view of what is best for the country. But should they defect? If you listen to the words of the people who brought us the Electoral College, the answer is clearly yes.

Alexander Hamilton, writing in Federalist 68, envisioned a deliberative body of electors who would take into account the popular will but exercise their superior judgment and make a wise decision. If faced with a candidate skilled in what he called “low intrigue, and the little arts of popularity”—qualities with appeal to factions in the electorate—the electors would, in Hamilton’s opinion, turn instead to someone who offered “a different kind of merit.” It’s not too much of a stretch to see how this captures the situation facing electors in 2016.

At least a few electors see it this way. Calling themselves Hamilton Electors, they have made it their cause to call on other electors to join them in acquitting their responsibilities as Hamilton envisioned and vote for someone other than Donald Trump next Monday. Politically and mathematically, they lack the ability to swing the election to Hillary Clinton, so they are asking Republican electors to vote for a Republican other than Trump, arriving at John Kasich as an alternative. Should every Democrat plus 37 Republicans vote for Kasich, he would be elected president without appearing on any ballot (and despite saying that he doesn’t want the job under these circumstances). Should only the 37 Republicans defect, the election would be thrown to the House of Representatives, where candidates with the three highest electoral vote totals (which presumably would include Kasich) would be considered for the presidency.

The Hamilton Electors face a huge collective action problem in getting so many electors meeting in disparate places to commit to rebelling against the wishes of their party on the expectation that others who have pledged to do so will follow through. This is why their efforts are unlikely to succeed. But they are right to try, because otherwise the Electoral College will twice fail the country by ratifying the election of the popular vote runner-up without deliberating on his qualifications. The Hamilton Electors face the same political headwinds as the #NeverTrump movement of last summer, as Republican leaders motived by power and afraid to cross their voters prefer to ride a dangerous populist wave to the White House. But they appreciate the authority they hold and despite the odds are not throwing away their shot.