If one wishes to find weaknesses in the position of “originalists”—those who believe we should follow strictly the intentions of those men who drafted the Constitution of the United States in the summer of 1787—the process by which the President is selected is a good place to start.
There were general premises upon which the Framers seem to have based the principles that guided their construction of the government the Constitution created. A basic premise was distrust of, and the need for protections against, democracy and majority rule.
Article II of the United States Constitution addresses the executive branch of government. Section 1 of Article II originally controlled the procedure for the election of the President by the Electoral College, stating, in relevant part:
“The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the persons voted for, and the Number of Votes for each; which List 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 shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing 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. In every Case, after the choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.”
In Federalist Paper 68, Alexander Hamilton wrote of the “mode of appointment of the Chief Magistrate of the United States ... if the manner of it be not perfect it is at least excellent.” He described the voters in the election and the electors: “It was desirable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose and at the particular conjuncture.”
The Federalist Papers have been cited by various decisions of the United States Supreme Court as authority for interpretation of the Constitution. See Printz v. United States, 521 U.S. 898, 905 (1997). Alexander Hamilton, James Madison, and John Jay were the authors of The Federalist Papers. Kurnan and D’Agnese, “Signing Their Rights Away,” 2011, p. 17. Hamilton and Madison were delegates to the Constitutional Convention held in Philadelphia in 1787. Jay was not a delegate.
Hamilton wrote after the convention and as an advocate for ratification of the product of the convention. Scholarly authority notes that the “mechanism for electing the President and Vice President was one of the last issues decided by the 1787 Constitutional Convention. It followed the famous Connecticut Compromise, in which the large states were permitted to control the House of Representatives and the small states were given influence in the Senate disproportionate to their population.” Josephson, (1996), “Reparing the Electoral College,” 22 Journal of Legislation 145, 151 (1996). Other delegates had favored direct election, by popular vote: “James Wilson wanted the President, the Senate, and the House of Representatives to be ‘chosen by direct popular mandate “to make them as independent as possible of each other, as well as of the states.”’ Likewise, Gouverneur Morris warned that election of the President by Congress would create a chief executive who was ‘”the mere creature” of that body.’ He feared that such an election would ‘be the work of intrigue, or cabal, and of faction: it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title of the appointment.’” Id. On the other hand, Elbridge Gerry “stated that ‘the people are uninformed and would be misled by a few designing men.’” Id. George Mason shared this disparaging view of the ability of the people to choose “‘a proper magistrate ... [because the] extent of the country renders it impossible that the people can have the requisite capacity to judge ... the candidates.” Id. at 151-52.
Political parties have shaped the system of electors in this way. Generally, the Framers opposed political parties or, as they referred to parties, “factions”:
“Today we cherish the two-party system as a cornerstone of American democracy. The founders, however, viewed parties, or ‘factions’ as they termed them, as monarchical vestiges that had no legitimate place in a true republic. Hamilton dreaded parties as ‘the most fatal disease’ of popular governments and hoped America could dispense with such groups. James Kent later wrote: ‘Hamilton said in The Federalist, in his speeches, and a hundred times to me that factions would ruin us and our government had not sufficient energy and balance to resist the propensity to them and to control their tyranny and their profligacy.’ In many passages of The Federalist, Hamilton and Madison inveighed against malignant factions, although Hamilton conceded in number 26 that ‘the spirit of party, in different degrees, must be expected to infect all political bodies.’ Hamilton associated factions with parochial state interests and imagined that federal legislators would be more broad-minded—‘more out of reach of those occasional ill humors or temporary prejudices and propensities which in smaller societies frequently contaminate the public councils,’ he said in number 27"
Chernow, “Alexander Hamilton,” 2004, pp. 390-91.
There is no indication the Framers intended the electors to vote as a “block” committed or locked to a single candidate. The concept of such a commitment is antithetical to the concept of the electoral college as intended by the Framers, particularly if that “lock” or commitment is tied in any way to political parties or “factions.”
The national elections of 1788 and 1792 were the first under the Constitution. The dominant figure was George Washington and a dynamic of those elections was the nearly unanimous support he received as the choice for President. In 1788, he ran virtually unopposed and won one (1) vote from each of the electors of the Electoral College. In that election, Connecticut, New Jersey, Delaware, South Carolina, and Georgia appointed their electors via their legislatures. In New York, the effort to follow those fives States’ lead became mired in argument to the extent that New York missed the day for voting and its electors were not chosen. Because Rhode Island and North Carolina had yet to ratify the Constitution, those States did not participate in the election. In Maryland and Virginia, electors were selected by popular vote on a district-by-district basis. In the Commonwealth of Pennsylvania and the State of New Hampshire, electors were chosen by statewide popular vote by use of a general ticket. In Massachusetts, electors were chosen by popular vote district-by-district, with the Commonwealth’s legislature appointed two electors at-large. Peirce and Longley, “The People’s President: The Electoral College in American History and the Direct Vote Alternative,” 1981 ed., p. 33.
President Washington enjoyed similar success in his re-election in 1792, in which all thirteen (13) of the original States were able to vote. Vermont and Kentucky also had joined the Union. One Commonwealth, Pennsylvania, and one State, Maryland, cast popular votes for President. No other State cast popular votes for the Nation’s highest office. Those States restricted the vote via property requirements.
The election of 1800 exposed flaws in the means by which the President was elected, under Article II of the Constitution. Jefferson ran for President, with Aaron Burr. As one writer has noted: “.. .Burr was primarily responsible for Jefferson’s election. In the presidential campaign of 1800 Jefferson had once again been matched against Adams. ... In all states except New York, Adams actually matched or exceeded his electoral votes in the 1796 contest, by which [Adams] had won by a narrow margin. But New York had gone decisively for Jefferson, providing [Jefferson] his slim margin of victory. And the man who had delivered the electors of New York to Jefferson’s camp was the irrepressible Aaron Burr, whose price for this important contribution was a place on the ballot alongside Jefferson.” Ellis, “American Sphinx,” 1998, pp. 206-07. As Ellis goes on to describe, “because of a quirk in the electoral system that prevented electors from distinguishing between votes for president and vice president ... Jefferson and Burr had received the identical number of electoral votes. This threw the election into the House of Representatives, where the Federalists were able to block the majority necessary for Jefferson’s selection for six days and thirty-six ballots. Even though everyone acknowledged that the American electorate had intended to choose Jefferson as it president, Burr had done nothing to ndicate his willingness to defer.” Id., p. 207.
As a consequence of this kerfuffle in history, the Twelfth Amendment to the Constitution was drafted and ratified. That Amendment controlled the 1804 election, and each election since:
The Twelfth Amendment determines the means by which the Electoral College functions to elect the President of the United States:
“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 as 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, f 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 vo0tes 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.”
Only a few elections of a president have ended with the person declared victor the person who finished second in the popular vote.
In 1824, Andrew Jackson appealed to a populist sentiment. Four (4) candidates ran from the same party, the Democratic-Republican, that lived on from its Jeffersonian origins. When Jackson failed to win a majority of the votes in the electoral college (99 of 261) after having won the popular vote (approximately 41.4 percent of the votes cast), the decision went to the House of Representatives. John Quincy Adams had won 84 electoral votes and approximately 30.9% of the popular vote. In the House, he won the Office of President. Voters were angry. In the next election, Jackson won easily.
In 1876, Rutherford B. Hayes won approximately 47.9 percent of the popular vote. Samuel Tilden won a majority of the popular vote, approximately 50.9 percent. Tildon won by nearly a quarter-million popular votes. Deals were cut, however, because votes were disputed in Florida, Louisiana, South Carolina, and Oregon. Hayes was declared the winner.
If we turn to the election of 2000, again the candidate with the greatest number of popular votes, then-Vice President Al Gore (approximately 48.4%) lost to George W. Bush (47.9%). Gore’s margin of popular votes was half-a-million. This past election, we saw a candidate, Donald Trump, declared winner with the greatest loss, by popular vote, of a declared “winner” in our history.
Very few electors have cast their votes apart from the candidate to whom they were committed. The notion of the electoral college was to create a body that could act as a “check” on unwise choices by the States or the popular votes.
Reasons for the Electoral College Never Have Been Put into Play
Hamilton’s description of the electors as “men chosen by the people for the special purpose at the particular conjuncture” to choose the President is not how we choose electors today. If that were the case, one may reasonably infer, the names of the electors would appear on our ballots and we would vote for those individuals. Instead, we vote for the team of candidates for President and Vice-President. One would also infer, again reasonably, that electors would not run as a “block.” If one is to trust in these men—the Constitution was written and ratified at a time when women did not have the right to vote although, ironically, women were eligible to run for the office of President—a voter could choose each as to that elector’s merits and wisdom.
The Framers of the Constitution sought an elite to select the President. As Hamilton wrote in Federalist 68: “A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportunity to tumult and disorder. ... The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes.”
The formation of political parties was a major impediment to the electoral college’s function as intended by the Framers.
Hamilton also saw the electoral college as a check against foreign—as in other countries—intrigue in election of the President:
“Nothing was to be more desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than by raising a creature of their own to the chief magistracy of the Union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combination founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.”
Hamilton emphasizes this aspect of the electoral college as a separate body created to make one decision independently:
“Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.”
Hamilton spells out the basic purpose of the electoral college:
“The process 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 confident 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.”
Federalist, Number 68.
The Framers of the Constitution—the white, male, land-owning delegates to the 1787 Constitutional Convention—created the electoral college to prevent the election of a tyrant. The notion was that individual electors would vote their consciences and keep the country safe from imprudent votes of the masses—those folks, white, male landowners, who were eligible to vote.
The reasons for the creation, and history of, the electoral college are a bit more complicated. One institution played a part in the creation of the electoral college. The institution went unmentioned by its name, in the original document submitted for ratification by the States. That name was “slavery,” and played a role in the creation of the electoral college. How else could the three-fifths compromise be carried over to the election of the President? Seats in the House of Representatives were to be apportioned based on population. The three-fifths compromise allowed the “slave” States to obtain seats in the House for total population, including those persons held in involuntary servitude. Those persons were each counted as three-fifths of one person. The electoral college extended the effects of this compromise in that each State obtained a number of electors equal to that State’s United States Senators (two each) plus members of the House. The institution of slavery has carried over to modern times in many ways, the electoral college being one often overlooked.
Second, in the history of the United States, only eight (8) electors have cast votes for the candidate for whom that elector was selected to vote. by which “slave” States were apportioned seats in the House of Representatives ensure
The electoral college is a relic that was based on a compromise of evil. It has been used as a tool to “game” several elections, the election of 2016 being the most recent.
The electors have a duty to vote so as to prevent an individual who would be a tyrant, or an individual who is a fool, from taking office. We should abandon this structural relic. In the meantime, the electors should fulfill their duty under the Constitution.
The Democratic Party addressed George McGovern’s nomination, by popular vote in 1972, by creating “superdelegates.” Thus, this year, Hillary Clinton was the Democratic Party nominee. Whether one views her as being forced down the throats, or up a different anatomical orifice, of those who would vote for anyone but Donald Trump, the fact remains the leaders of the national party refused to allow anyone else to run as the party’s candidate. The argument, such as it was, was that Bernie Sanders had little chance against Trump. Actually, Bernie’s numbers against Trump were better. Those who questioned former Secretary Clinton as a candidate—I had problems with her vote for the Iraq “war” and her ties to Wall Street, as well as her move to New York to claim a United States Senate seat—were castigated.
Thus, the two most unpopular candidates in recent history ran against each other. Even then, Hillary Clinton won the popular vote.
There are few requirements in the Constitution for President. One—a person must be thirty-five (35) years of age. Two—the person must be a native-born citizen of the United States. Three—the person must have lived the past fourteen (14) years, on a continual basis, in the United States. Within these parameters, Donald Trump is qualified to be President. However, only within these parameters is he qualified to be President.
If the recount lawsuits fail, the electors “committed” to Trump should do as I, and others, did when we cast our votes for President (and United States Senate here in Indiana). Each should hold her or his nose and cast a vote for Hillary Clinton. Better her, than a candidate chosen and eased into a “losing” victory by Russian hackers.