11/30/2016 02:17 pm ET Updated Dec 01, 2017

Misunderstanding Of Electoral College Clouds Debate And Obstructs Reform

Kasia Biel via Getty Images

The results of the 2016 presidential election in which the electoral vote did not match the so-called popular vote has predictably resulted in demands for the abolition of the Electoral College and calls to aid and abet the duly elected electors into committing the criminal act of violating their pledge to the people who elected them.

In the aftermath of the 1960 election in which the democrat John Kennedy overwhelmingly won the electoral vote, but lost the popular vote, outraged and disgruntled Republicans pushed hard for abolishing the Electoral College. Likewise, it was outraged Democrats who supported the electoral loser and who demanded abolition of the Electoral College in 2000. Indeed, in the three elections in American history in which the electoral vote did not match the popular vote - 1888, 1960, and 2000 ⎯ support or opposition to our federal system of election enshrined in the U.S. Constitution has been based not on principle, but on partisan election outcomes. Over 700 aborted attempts over the last 200 years to undermine our federal system have failed abysmally once the disastrous consequences have been fully explained and appreciated.

Perhaps the most notorious myth is that the Founding Fathers envisioned electors as independent representatives free to cast their votes in any way they wish. Nothing could be further from the truth. As Madison explained to the Virginia ratifying convention, the president was to be chosen by "the people at large", and later explained to the First Congress that the president was to be appointed "by the suffrages of three million people". As Lucius Wilmerding's massive study of the Electoral College noted in 1958, "it is the fashion nowadays (to assert that electors were to make the election according to their own will)... The Founding Fathers would have answered them, indeed did answer them, otherwise."

Proponents for the view that electors were intended to exercise independent judgment often resort to citing Alexander Hamilton's view in Federalist 68 that the Electors "should be made by men most capable of analyzing the qualities adapted to the nation". But even Hamilton clarified that statement by noting that "the people should operate in the choice of the (Electors)". It should also be recalled that virtually all of Hamilton's views on the presidency were rejected, including that the president should be elected for life, and that the states should be abolished in favor of arbitrarily drawn national districts.

In any case, this question of elector independence has been mooted by the decision of every state legislature since 1865 to delegate the responsibility of appointing electors to the people of the state. It is true that electors can violate both their oath and pledge by committing the criminal offense of failing to cast their vote in accordance with the pledge upon which they were elected, and while it has happened in a relative handful of instances (17 times out of 17,000 electoral votes case in the past 150 years) it is most rare and has never in the history of the U.S. ever affected an election outcome. When Lloyd Bailey cast his electoral vote for George Wallace rather than Richard Nixon in 1968, Congress challenged his vote as "not regularly given" in accordance with 3 United States Code 15. This is because the procedure for casting ballots has always been primarily ceremonial and mechanical. Thus when an appointed elector fails to appear at the appointed place time in December, due to sickness, in capacity, or death, it is not unusual to find someone in the hallway, even a passing janitor in one instance, to enter the voting room and cast the electoral vote in accordance with the slate elected by the people.

The system has worked like clockwork, every four years, since George Washington was elected President. And yet, in the aftermath of the 2016 November election, when an elector on the Democratic slate in Washington declared that he would never cast a vote for Hillary Clinton, it opened a Pandora's Box, giving other Democrats the idea of trying to abet electors in states where the Republican slate was elected to commit the criminal act of violating their oath and pledge to the people.

But although electors are generally party stalwarts appointed on the basis of their loyalty to their party, and a faithless elector has never in the history of the Republic ever affected the outcome of an election, the time may have come for a responsible reform to the Electoral College - namely to dispense with human electors, and simply to automatically allocate the electoral votes based on the popular vote in each individual state. Unfortunately, populists determined to abolish the Electoral College have been resistant to such responsible reforms in hoping to set the stage for outright abolition.

As every eighth-grade civics student is aware, the Founding Fathers created both the Electoral College and the U.S. Senate as the basis for the Grand Compromise that served as the foundation for the Constitution and the union which guaranteed the reticent small states equal representation in the Senate and commensurate representation in the Electoral College. As Senator John F. Kennedy observed in fending off yet another Republican attempt to undermine federalism by tampering with the Electoral College prong of the Grand Compromise, such an attempt cannot be made without also tampering with or abolishing the other prong, namely the U.S. Senate - which would probably require a Constitutional Convention where all bets would be off.

One of the great puzzles is why opponents to the Electoral College focus on the fact that the Electoral College gives citizens of the small states a greater voice in the presidential election than citizens of the larger states (since small states are guaranteed two electors based on their representation in the Senate), when that argument would carry far greater weight in opposing the existence of the U.S. Senate where legislation is annually passed based on the votes of senators from the small states regardless of their population. Election of Presidents in the Electoral College without the popular vote, however, only occurs an average of once every 75 years, or about the same average as in parliamentary democracies such as the UK (where in 1974 Labor lost the popular vote but elected three more MP's to parliament and formed the government). Those who remember the 2000 election may remember that many supporters of Ralph Nader did indeed call for the abolition of the U.S. Senate, on the same grounds as those who oppose the Electoral College today.

For the past 200 years, as our election system has become the envy of the world for its stability and peaceful transfer of power, both Congress and state legislatures have steadfastly defended the federalist basis of our Constitution, recognizing the true horrors of a so-called "popular vote election" in which recounts in most or all the states would be required in every close election (or about one-third of past American presidential elections). For those who remember the national trauma of Florida in 2000, one needs only imagine what a recount in all fifty states would entail, complete with lengthy court hearings and appeals in each state. One can also envision an election campaign in which candidates focus only on states and cities with massive populations (such as New York, Los Angeles, or Chicago) ignoring the sparsely populated hinterland. Perhaps the greatest protection provided by the Electoral College is to insure that no candidate can be elected without broad support across the country. (Imagine that in the 1950s an overwhelming popular vote in the deep south for a segregationist candidate managed to trump the rest of the country in popular votes despite the rest of the country being opposed.) With a popular vote election attracting a multitude of small parties, a candidate could win with a small percentage of the vote (as did Hitler in 1933 despite being opposed by a majority of voters).

Nor should the racial factor be ignored. As Vernon Jordan, President of the urban league, testified as the 1979 congressional Hearings initiated by Republicans to abolish the Electoral College, "(T)ake away the Electoral College and the importance of being black melts away. Blacks, instead of being crucial to victory in major states, simply become 10% of the total electorate with reduced impact. "

Of course, Republicans changed their tune after the 2000 election, just as Democrats who felt secure behind their "blue wall" of big states with a huge number of electors will doubtless change their tune in the aftermath of the 2016 election and support Donald Trump's call to undermine federalism by abolishing the Electoral College.

Probably the most dangerous course for opponents of federalism is to support a scheme (called NPV) by a California millionaire to do an end run around the Constitution by enticing states to enter into a conspiracy with other states totaling 270 electoral votes to ignore the will of the people of their own state and vote for the "popular" vote winner. Aside from being in violation of the compact clause of the constitution, such a scheme simply assumes that a popular vote winner can simply be calculated by adding up the vote totals of each individual state. Hardly. It may be recalled that in 1960, the newspapers calculated the popular vote winner by simply tallying the popular votes for the electoral slate in each state, thereby concluding that Kennedy won the popular vote. The Congressional Quarterly, on the other hand, determined that that only 5/16 of the popular votes for the Democratic electoral slate in Alabama should be allocated to Kennedy since five of the sixteen electors on the Democratic slate were pledged to Senator Byrd, thereby concluding that included Nixon won the popular vote by over 58,000 votes. So which tally was correct? The NPV answer is simply along the lines of "the courts will decide".

For those that trust the courts more than the people, and are willing to throw the nation into constitutional crisis every third election, the so-called "popular" vote scheme will doubtless continue to seduce whoever loses the electoral vote to a popular vote winner.