Myths about the Electoral College

Today, Dec. 13, was the deadline for states to settle any controversies over disputes about electors appointed to represent them in the state meetings six days later, on Dec. 19. Electors then vote twice, once for president and once for vice president. The results are sealed and sent to the U.S. Congress where, on Jan. 6, they’re opened and counted by the sitting vice president (who is also president of the Senate).

So it’s a good time to discuss some myths swirling around about what the electoral college is and what it was meant to do.

First, let’s review what is actually federal law here. The original, in the Constitution, Article II, was later superseded by a modified version in the 12th Amendment, after problems in the election in 1796 and the disaster of the election of 1800:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

And that’s basically that. There are minor state-level laws for how electors should vote or get penalized, but federal law trumps state and local law, and what is above is the extent of the federal-level law on the subject and the highest law on the subject in the land.

So, on to the myths …

The Purpose is to Protect Smaller States from Bigger States
This one is Utterly False.

This one is used a lot to defend the outsized electoral influence that smaller and medium-sized states like Pennsylvania, Florida, Ohio, Nevada, Wisconsin, and more have in choosing the president. Because of the divisiveness of the current state of national politics, only tightly contested smaller swing states end up deciding the result of the election every four years, and defenders of the electoral college use this bogus excuse every time to justify this ludicrous situation.

The truth is that we do have a Constitutional institution that protects the smaller, more vulnerable states from the outsized influence of more populous states: The U.S. Senate. In the Senate, each state gets an equal number of representatives–two. In the Senate, the smallest and least populous states like Wyoming and Rhode Island have just as much power as California and Texas, leveling the playing field in at least one portion of our Republic.

But in the electoral college, each state gets a number of electors equal to their total number of representatives in both houses of Congress. That’s proportional to the states’ populations, NOT EQUAL. So the electoral college, unlike the Senate, in intended to be a reflection of the popular vote, albeit not a perfect reflection, nationwide.

The Purpose is to Protect Some States from Others
This one is True, but not in the way you think.

There were proposals for the presidency to be decided by a national popular vote (by the father of the Constitution, James Madison, no less, who never liked the electoral college himself), but the biggest objection to a direct citizen vote came from slave states. Southern slave-owning states had smaller citizen populations compared to the non-slave-owning northern states because their economy enabled a very few white people to run large plantations with legions of black slaves doing the work.

But that aristocratic economy left the South at an electoral disadvantage to the more populous North. So, in order to agree to join the union, the South demanded some concessions to even out power with their rival states. The first was the Three-Fifths Compromise in Article 1, Section 2, which made all free people equal to a full person and each non-Indian slave equal to three-fifths of a person. (The Southern states wanted each slave counted as a full person towards the census, and thus further increase their electoral power, but the North fought back … thus “the compromise.”) The second concession was making that rigged census count determine not only the number of representatives in the House but, in turn, also the number of electors a state gets in selecting the president.

So the Southern states ended up with an outsized influence on choosing the president. But these WERE NOT small, marginal states that needed to be protected from larger, more powerful states. We’re talking about Virginia, Maryland, Tennessee, and other major slave-owning states. Four of the first five presidents, and six of the first 10, came from Virginia alone (and another, Andrew Jackson, was from Tennessee), and Virginia, along with Massachusetts and New York, was one of the most prosperous and powerful states in the union. The white land-owning and slave-owning free people of those states merely ended up with an exaggerated level of political power.

The Purpose is to Represent the Popular Vote
Partly True.

Some argue that since the electoral college is (generally) proportional to the populations of the states, and that the popular vote and electoral vote generally sync up, so the electoral vote is a suitable stand-in. Yeah, this one’s true but pretty fuckin’ weak, and if you believe this you should be really upset when the popular and electoral votes don’t align.

A better argument in this vein is that an elector system helped to ensure the veracity of the vote in a time when there was no reliable national way to transport and count the votes, especially for a populace very wary of interference from Great Britain and royalists who were still loyal to King George. The U.S. Postal Service wasn’t in existence yet (although the U.S. Mail was started for the Second Constitutional Congress) and the country was still 70 years out from something as rudimentary as the Pony Express. Choosing reliable local citizens to represent you at a larger state assembly and carry your vote and opinion with you, you could do worse than a state tally in this manner that “lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.” If you’re worried about tampering happening with the popular vote count, on a local to state to national level, then choosing an individual you trust to relay your vote that is then sealed for travel to the capital only to be accepted by the Senate if the seal is not tampered with, then this is not a terrible system.

Either way, it’s an outdated and weird system. If you want the popular opinion of the people to matter, then just have a popular vote. Nowadays we can handle that just fine.

The Purpose is to Check the Popular Vote
Partly True.

And then there’s the argument that the electoral college exists as a check and balance on the popular vote, to stop the people from doing something stupid. This surely started as former British colonists afraid that a loyalist to the British crown would win the election and plunge the country back into a compromised position with our former colonial masters. (A valid argument, actually, as the country during the Revolutionary War was very divided over whether to rebel or stay under the umbrella of the British Empire, and a lot of people in the early days, and especially after the disastrous Articles of Confederation days, were eager to repair relations with England.) Nowadays, however, we generally refer to it as the check on the populist demagogue-type figure, drawing from Alexander Hamilton’s impassioned defense of the new Constitution’s electoral system to the skeptical people of New York in Federalist No. 68:

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. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.

A few things on this passage and entry in The Federalist Papers. First, I don’t doubt that Hamilton believed every word of it. Hamilton was an aristocratic elitist and a monarchist who hated the common people and thought that the president should be elected for life. So for him to defend an elitist solution is not surprising. Second, notice that there’s no mention of the Three-Fifths Compromise and concessions to the slave states … because he’s selling this convoluted system to New Yorkers, who rightfully would have preferred a straight popular vote and not counting slaves toward the voting census. Third, notice that it was not James Madison writing this entry. Madison, who wrote the Bill of Rights, hated the electoral college (despite being a slave owner, whereas a popular vote, which he favored, would have actually sort of disenfranchised him somewhat).

Winner-Takes-All for Each State is How it was Designed
Aargh! No, you dumb fuck. It was not. … Oh … uh, calm down … this one’s False.

Picking electors and how they vote was left to the states to decide for themselves. The first election when most states in the union used the winner-take-all rules was the clusterfuck of an election in 1824. In the 1824 election, not only did the person who won the popular vote not win the presidency (Andrew Jackson), the person who got the most electoral votes didn’t also win (also Jackson). Oh yeah, and there were FOUR major candidates who split the vote … and they were ALL members of the SAME FUCKING PARTY (the Democratic-Republicans, who, needless to say, split up faster than the Beatles with Yoko Ono in a suicide vest running around trying to hug everyone). The U.S. House of Representatives then decided the election by picking John Quincy Adams in a mostly universally loathed decision.

Again, Madison, the father of the Constitution and author of the Bill of Rights, hated all of this crap.

And the winner-take-all garbage was invented by political parties, not the Founding Fathers. Political machines would lock up a state and then appoint the electors, making all electors sign pledges to vote the way they wanted them to.

So, What Did We Learn?
We have a system that is supposed to reflect the will of the people but was also designed to protect racist slave owners and has been warped over the centuries by crass political machines trying to entrench their own power at the state level. Add to that contradictory mess is the fact that it is also system that gives an elitist group the power to protect us from ourselves.

How’d it work out this time?

In the 2016 election, the person who won the popular vote (Hillary Clinton) was denied a victory by the electoral vote by a man who will become president while losing the popular vote (Donald Trump) despite all indications that he’s the type of populist demagogue that the electoral college was supposed to be designed to protect us from, all because of some phony winner-take-all state-level laws passed by corrupt political parties to protect their entrenched power.

It’s pretty clear that the Electoral College failed on every level this time around, and it needs to be repealed.

Next time … What should we replace it with?

Same Bat Time, Same Bat Channel, kiddos …