Civil Discourse Now

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How to mitigate "unequal protection" of the Electoral College - Part 1

  The Framers shaped the Constitution on premises that included distrust of, and the need for protections against, democracy and majority rule. The Electoral College was intended, by the Framers of the Constitution, to act as a deliberative body and protect the nation from a person who was incompetent or corrupt.
The manner by which electoral votes were apportioned to each State was based on the Great Compromise, whereby each State received a number of seats in the House of Representatives based on population and two seats in the Senate regardless of a State’s size. “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in Congress...” U.S. Const. Art. II, sec. 1.
The Electoral College never has acted as a deliberative body and the extension of the Great Compromise to electoral votes violates a concept our nation has accepted for decades - one person/one vote. Most recently it was gamed by the GOP and Vladimir Putin to hand the keys to the Oval Office to the loser of the popular vote.
Over the next few days I shall discuss the history of the Electoral College and how its promotion of unequal protection of the laws can be mitigated by means other than amendment to the Constitution.
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 SCOTUS as authority for interpretation of the Constitution. See Printz v. U.S., 521 U.S. 898, 905 (1997). Hamilton, James Madison, and John Jay authored 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. Id. Jay was not a delegate. Stewart, David O., The Summer of 1787, 2007, p. 88.
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), “Repairing 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”—or “winner take all”—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.”

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