13 December 2004; or, A Few Things I Know About the Electoral College from Reading Books

NB: What follows is a blog post I wrote in November of 2004, in between that year’s popular vote and the Electoral College vote for president. As of November of 2016, I’d like to think I’ve become a better writer, so I’ve edited it slightly; the argument is the same, the paragraphs are fundamentally the same, but some sentences, I think, are better. As of November 2016, I’m keeping the original publication date, but pinning it on my home page, in case anyone finds it useful.

in the voting booth

Having bored everyone I know to tears for the past few weeks, if not the past few years, with talking about the Electoral College, to the point where I recently was called, much to my horror, “Electoral College guy,” and having read Josh Marshall‘s recent post on the subject [NB: link removed; no longer extant], where he said he hoped to generate a discussion on the issue, I’m going to try to write down everything I know about it.

I learned what I know from reading The Electoral College Primer 2000, as well as a satiric novel about the Electoral College (The People’s Choice: A Cautionary Tale), plus relevant and reliable sources on the Internet. I did this research in order to write the script to The Truth About the Electoral College, which you should watch if you haven’t, because it’s funny. Note, if you do watch it, that “March of this year” refers to the year 2000.

I.e., I’m not a trained historian on this subject; I’m a writer. This is just one citizen’s list of what I find amazing and horrifying.

The founding fathers came up with the idea of electors as a last-minute compromise when they were finishing the Constitution in Philadelphia in 1787. To me, a really important part of their original deal—the rules they laid out in Article II (and then modified slightly in the Twelfth Amendment)—was this: everyone at the Constitutional Convention assumed that Washington would be the first President. But they also figured that probably no one else would ever be as famous or as popular as him; who else would ever be known and loved by all throughout all thirteen states? So the assumption was that every group of electors from every state or region would, in the future, vote for some local favorite son. Then they’d take all the most popular of those favorite sons and vote on it in the House of Representatives, one vote per state delegation—yet another nod to the small states, like the division of Congress into the House and Senate, and like the number of electors each state gets being equal to the number of senators and the number of representatives, which massively skews the whole thing in favor of the smaller states.

They assumed that this—the election getting thrown into the House—would happen almost every time. Note that the original rules (in Article II, tweaked in the Twelfth Amendment) say that if no one has a majority of the votes, the top five recipients of elector votes get thrown into the House. Remember the last time there were more than five recipients of elector votes? Me neither.

Most people understand that the Electoral College was supposed to be yet another buffer between the citizens and actual power. As buffers go—if you like that sort of thing, and given the historical context—it wasn’t entirely a bad idea, at least not in theory. The electors were supposed to be a democratic aristocracy, yet another set of enlightened citizens whose job it was to make one big, important decision on behalf of regular citizens. You were supposed to know who your electors were; they were supposed to know who the candidates were; you were supposed to trust them to vote for candidates on your behalf.

In other words, the Electoral College was supposed to be a kind of nominating process, and the House was assumed to be where the actual election would end up happening. Not so terrible a plan, except that in the next twelve years the founders then invented political parties. Which superseded the idea of an enlightened nominating process. Which then sent pretty much every possible positive aspect of the Electoral College’s original purpose down the river.

So ever since the early 1800s, the electors haven’t been that noble, democratic aristocracy. They’ve been party functionaries, who usually do what their parties ask. Every now and then someone does not do what they’re told, like the elector who voted for Lloyd Bentsen in 1988. But this is part of the reason why the whole thing is a time bomb, one that almost went off in 2000, but not quite: the Constitution still gives them every right to do that. It says that they’re free to vote for whomever they want to. Some states have laws on the books that require them to vote for whoever the popular vote of that state went for, or that fine them if they are “faithless electors,” but those laws are probably unconstitutional.

That is, in 240 years, no one has ever been a “faithless elector,” then received a fine, then mounted a legal challenge against the constitutionality of the law under which they were fined. If they did, and if the case went all the way to the Supreme Court, it’s a reasonable guess that they would win. The Constitution is really pretty straightforward on the subject.

So in theory, all 538 could get together and vote for Oscar the Grouch. Will they? No, because again, they’re all party functionaries. I believe that most of the time, they’re given the honor of being an elector as a reward for their service to the party—but that service, I’m guessing, may have served as evidence, for the state party apparatuses that chose them for the job, that they would most likely not exercise the freedom the Constitution gives them.

Electors, now, are not our noble representatives; rather, they follow instructions. Usually. And because they almost always follow instructions, most people don’t seem to find this a compelling argument for the abolition of the Electoral College. Because they follow instructions, it always seems like we citizens actually vote for the President, even though we don’t really. Because so many states have replaced the names of the electors on the ballot with the name of the Presidential candidate whom those electors are pledged to vote for (in my experience, with the words “slate of electors pledged to vote for” or something similar printed in smaller type nearby), most people have every right to assume that they’re actually voting for that candidate. But it’s really not just a game of numbers, not just a quirky mechanism; these 538 people actually go to their respective state capitol buildings on the first Monday after the second Wednesday of December every four years and actually vote for President, almost always based on our suggestions.

Perhaps none of that makes you think it should be abolished. Maybe the fact that what we’ve got now is not at all what was intended doesn’t bother you. Maybe the fact that Gore won the majority of the vote of the actual citizens of this country but did not become President somehow doesn’t make you think it should be abolished. (This is putting aside the “irreparable harm”—to quote the signed dissent filed with the unsigned majority decision in Bush v. Gore—the Supreme Court did to the Constitution four years ago.) Maybe the complete disenfranchisement of the citizens of the territories, like Puerto Rico, doesn’t bug you.

Did this last popular vote bother you at all? Did you, like me, living in New York, never see a single campaign commercial? Or were you living in Ohio, were someone from some campaign or some group or other was knocking on your door or calling you up at home ten times a day?

You might claim that the Electoral College is good because it makes candidates pay attention to small states, not just big states, it balances the rural against the urban, like the Senate. I disagree. The small states, like Wyoming and Vermont, get ignored. So do the big ones, like Texas and California. With the winner-take-all, state-by-state system, only the middle ones whose outcome isn’t guaranteed get the attention. And then, as Lewis Lapham points out in the November 2004 issue of Harper’s, the candidates aren’t even vying for individual votes. They’re vying for blocs. They’re looking for something to appeal to the Cubans in Florida, the African-Americans in Ohio. We are defined by our hyphenations and the states in which we live. If we don’t meet this year’s magic formula, we don’t matter.

I think this is a terrible way to elect any office, let alone the most important one. I hope you agree. There’s a lot of things wrong with our democracy. We need national standards for voting machines, we need a national holiday for election day, etc. But we also need to abolish the Electoral College.

We don’t vote for the President. The 538 do.

If we’re going to brag about our democracy, we should actually be one.