Monday, December 19, 2016

The Electoral College

By Zach Bush

20161219-01: Mistakenly listed New Hampshire as not having a "winner-take-all" method. Correct to Nebraska. 

Every four years there is a renewed interest in the Electoral College of the United States. The wake of the 2016 presidential election has been no different.

The general complaints go like this: candidate X lost the popular vote but won the electoral vote, therefore the Electoral College (EC) is bad. The structure “prevents the tyranny of the majority” when it benefits you, it’s “antiquated” and “outdated” when it produces a result you do not prefer.

This year marks the first time, in my admittedly limited experience, that the losers are openly calling not for an abolishment of the EC, but to utilize it to achieve the result that they prefer. They do so on the basis that the original intent of the EC was to prevent the election of a tyrant.

I will therefore address the following claims:
  1. The Electoral College prevents less populated states from being ignored by the candidates, thus requiring the candidates to consider their points of view when developing their platform. In other words, this prevents a tyranny of the majority over the minority. A similar form of this argument pits the interests of cities versus the interests of rural districts;
  2. The Electoral College was put in place to prevent the election of an unqualified person or a tyrant.
To do this, I will examine each claim from both a theoretical (i.e. intent) and practical (i.e. does it actually do what is claimed).

In Theory
Whenever dealing with the intentions of others, only the person in question can claim to know for certain what their actual intentions were. It is possible, however, to gain insight into another’s intentions by reviewing the historical evidence.

In regards to the intents of the founders of the Constitution, the most relevant documents of record that I’m aware of are the Federalist Papers and Madison’s minutes of the Constitutional Convention. I think Madison’s minutes carry more weight than the former because they are a record of what was said behind closed doors, as opposed to the Federalist Papers which were intended for the public, and therefore more likely to reflect their true intentions. To further support my presumption, there was a motion to burn Madison’s daily logs.

I will therefore rely mostly on the daily minutes of the Convention to provide a summary of the debates on the subject and then provide my own opinion on the matter. For curious readers, the dates I found that deal specifically with the Presidency and the Electoral College are: May 29th, Jun 1st, Jun 2nd, Jun 4th, Jun 9th, Jun 18th, Jul 17th, Jul 19th, Jul 20th, Jul 24th, Jul 25th, Jul 26th, Aug 6th, Aug 7th, Aug 8th, Aug 24th, Sep 4th, Sep 5th, Sep 6th, Sep 7th, and Sep17th.

On May 29th, the initial proposal for the Executive was taken up for debate and, per the Virginia Plan, called for an election by the National Legislature (later to be renamed Congress) for an unspecified length of term and to be ineligible for a second term.

After several days of debate, the delegates settled on a term length of 7 years with no option for reelection. Motions were made for an election by an Electoral College and State Executives, each being rejected. An Executive Council was discussed, but it was decided that the Executive would be a single person.

On June 18th, the Hamilton Plan was brought forth and outlined an “Executive authority”, referred to as a Governor, that was to be elected by Electors, chosen by the people, from the same election districts established to vote for the Senate. Surprisingly, Hamilton suggested a life term for the Governor, to be removed through a trial by the chief justices the highest court of each State.

Throughout the month of July, the delegates went back and forth on the issue of who would appoint the Executive. Initially, they returned to election by the National Legislature. Then they approved an election by Electors chosen by the State Legislatures. By the end of the month they were right back where they started: an election by the National Legislature for a term of 7 years without the possibility for reelection.

The matter was not discussed again until late August and a direct election of the Executive (now referred to as “His Excellency”) by the people was immediately proposed and defeated (2-9). Election by Electors chosen by the people was then proposed and defeated (5-6). The Committee of Eleven, also known as the Brearly Committee, was tasked with formulating a final proposal.

On September 4th, the Brearly Committee proposed an election by Electors who would be selected in a manner determined by each State’s legislatures, with each State receiving an elector for every member in the National Legislature. In addition, it required each Elector to vote for two candidates, one of whom had to reside in a separate state. The person receiving the second highest number of votes would be the Vice President, marking the first time the position had been brought before the Convention. In other words, the Brearly Committee created what is currently referred to as the Electoral College, with two exceptions: 1) in the event of a tie, or a candidate failing to receive a majority, the Senate would decide the winner; and 2) the Electors did not have to specify which of their two votes was for President and Vice President. The latter was changed by 12th Amendment (ratified 1804), while the former was taken up for debate during the Convention.

Opponents of the Senate having the power to determine the President in the event of an indecisive electoral vote predicted that electors would often vote for members of their own state and therefore no candidate would ever receive a majority and the election of the President would always be by the Senate. This concerned them because the Senate, at the time its members to be elected by the State Legislatures and already having considerable power in Congress, would be able to collude with the President, effectively removing the checks and balances and putting the United States on a path towards an aristocracy. Proponents of the Senate having the final appointment argued that while under this proposal the Senate may use this to influence certain powers given to the President, the previous plan had given the Senate those powers outright. They also suggested that final appointment by the Senate, where the smaller states had a proportional advantage, would be a check and balance on the Electoral College, where the larger states had a proportional advantage, and on the House’ power to levy taxes. Eventually it was agreed that the House would have the final appointment with each state having one vote. Open issues finally resolved, the Electoral College was born on September 7, 1787.

What, then, can we learn of the intent of the Electoral College from the preceding?

First and foremost, it should be clear that the Founding Fathers were far from unanimous on all issues and of the 55 delegates, 12 did not sign the Constitution! Some delegates had come to the Convention in anticipation of modifying the Articles of Confederation (i.e. the Federalists) while some (i.e. the Nationalists), to the shock of the Federalists, had come to do away with the State governments and supplant them with a National one. It is therefore disingenuous to talk as if the “Founding Fathers” were of a single mind and interests. The fact of the matter is that there were 55 individual minds with unique interests all competing with another (the investigation of the specific interests of each delegate is outside the scope of this article, however a good start can be found here). The only interest they all seemed to share, however, was that they all wished to produce a document that could be ratified without causing another revolution. This meant that each delegate had to do one thing: compromise.

The Electoral College was a compromise to resolve differences of opinion on the best mode for appointing an Executive. Nearly all agreed that the best mode would need to: 1) be free of corruption and therefore have the public’s trust; and 2) be independent of the Legislature to ensure a system of checks and balances. This led the debates over the mode of appointment to focus on the key areas of who would appoint, length of term, re-eligibility, and impeachment, all of which were considered interdependent. In other words, if you changed one condition, you had to change another. You had some delegates that wished for a lifetime appointment and others that wanted a single, short term. One end there were arguments for direct election by the people, while on the other end there were proponents of appointment by Congress. When asked why the Brearly Committee came to their resolution, Gouverneur Morris replied:
The first was the danger of intrigue and faction, if the appointment should be made by the Legislature. The next was the inconvenience of an ineligibility required by that mode, in order to lessen its evils. The third was the difficulty of establishing a court of impeachments, other than the Senate, which would not be so proper for the trial, nor the other branch, for the impeachment of the President, if appointed by the Legislature. In the fourth place, nobody had appeared to be satisfied with an appointment by the Legislature. In the fifth place, many were anxious even for an immediate choice by the people. And finally, the sixth reason was the indispensable necessity of making the Executive independent of the Legislature. As the electors would vote at the same time, throughout the United States, and at so great a distance from each other, the great evil of cabal was avoided. It would be impossible, also, to corrupt them. A conclusive reason for making the Senate, instead of the Supreme Court, the judge of impeachments, was, that the latter was to try the President, after the trial of the impeachment.
(Unfortunately, I could not find detailed notes from within this committee. I’m not sure if records of what was discussed by the eleven members exist and I did not spend a great deal of time searching for them. If found it would certainly enable a more thorough investigation.)

What about the oft repeated claims that the purpose of the Electoral College is to protect the small states from the large or the election of an unqualified person?

Regarding the former, I could not find evidence of serious consideration of this concern. It is true that there were delegates who expressed concern over the interests of the larger states dominating the smaller, however this was in the context of representation in Congress and the powers that each house should have. In regards to the appointment of the President, it was only brought up when considering which house should have the power to appoint the President in the event of a tie in the general election. I do not believe there is enough evidence to support this claim within the context of electing the President.

One can also look at the primary argument against the Electoral College to show that there was no concern of the interests of the smaller States. In Antifederalist No.72, “REPUBLICUS” makes no mention of concern for under-representation of certain areas of the population. Rather he expresses distrust in these non-elected delegates being able to adequately represent their interests entirely.

It is true that the delegates were concerned over ensuring a qualified person would be elected President. In Federalist No. 68, Alexander Hamilton writes:
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. 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 is often concluded from this passage that the Founders therefore intended that the Electors would “vote their conscience” in the event their district voted for someone they deemed unqualified. This ignores the crucial fact that the delegates at the Convention did not consider the case where the general population would be voting for the President. The Constitution allows each State to determine the way electors are chosen. The Founders assumed that each State legislature would appoint electors and they in turn would vote for President. They never considered the present case where State legislatures appoint electors and a popular vote is held in each elector district to determine whom the electors should vote for. It is therefore incorrect to conclude that the Founders intended for the Electoral College to override the vote of the people because they never considered that the public would be voting for President in the first place. It is entirely possible, and likely, that they may have been opposed to such a notion out of fear that it might undermine the public’s faith in the position, at best, or start a revolution, at worst.

In Practice
Let us consider the composition of the Electoral College. Each state gets one elector for every US senator and representative (the District of Columbia gets 3 per the 23rd amendment). Every state has two senators and representatives are apportioned among the states (fixed at 435 total) every 10 years after the census has been completed, bringing the electoral total to 538 (100+435+3=538). The representatives (and therefore the electors) are apportioned by population, with the most populated states receiving the most representatives. Unlike senators and representatives, electors are not elected by the public. Rather, they are bureaucrats chosen by either their state legislatures or respective political parties.

In 1788, the election of a president looked like this:

The election of a president in 2016 looks like this:

Note that in either case, there is no direct election of the president by the public. In the former, there is a complete disconnect of the public from the election of the president. There were no primaries or general election, there was only a convention of the electoral college. In the latter, however, the public votes to recommend who their party delegates should nominate as candidate and who their party electors should elect for president.

The selection of the electors in each State has also changed. Initially, there was only one elector in each state for every US senator and representative. In 2016, there is one elector in each state for every US senator and representative for every political party on that state’s ballot. For example, California had 55 electoral votes in 2016 and 5 parties on their ballot. This means that there are 275 electors in California alone whereas if using the procedures in 1788 there would only be 55.

Another significant change that’s coincided with the introduction of primaries and a general election is the adoption of the “winner-take-all” method by nearly every state (Maine and Nebraska are the exceptions). In the “winner-take-all” method, the candidate that wins the popular vote of that state gets to send all their respective party’s electors to the presidential convention in December. Using California as an example again, Hillary Clinton won the popular vote in California, therefore 55 electors selected by the Democrat Party will go to the presidential convention to presumably vote for Clinton. I say presumably because there is no legal requirement for electors to vote for state’s popular vote winner, the popular vote is merely a suggestion by the public.

This brings us to the crucial point: it is odd to argue that the Electoral College prevents less populated states from being ignored by the candidates because the most populated states have the most voting power and every state, except for Maine and Nebraska, use a “winner-take-all” method. It is impossible to have equal representation when you do not have equal representation. 

If the intent is to give equal weight to the concerns of all states, then the correct method would be to give states the same number of electors regardless of population. For example, rather than the number of electors being the total of US senators and representatives, each state could receive one electoral vote per senator.

If the intent is to give equal weight to the concerns of all districts, then every state should abandon the “winner-take-all” method and electors sent based on which candidate won the popular vote of each district. In addition, to provide a more uniform distribution of electors, the apportionment of electors could be changed from its present formula to one based on a fixed ratio (e.g. 1 elector per 30,000 persons).

If the intent is to give equal weight to the concerns of all eligible voters, then presidential election would need to be determined by more democratic means (e.g. 1 vote per person direct popular election.

It must be stressed that due to the “winner-take-all” method, the Electoral College plays no role in preventing the interests of heavily populated cities from dominating the interests of rural voters. In 2016, Hillary Clinton lost the Electoral College vote because not enough people in “swing” states, regardless of their district, voted for her. If even a small fraction of the people that voted for Obama in 2008 and 2012 had vote for her in those key states, then the electoral votes would have gone to Clinton, and Hillary Clinton would be the president-elect.

Below are images of county-by-county results from separate elections. Without knowing which election the maps correspond to, what would you guess were the results? If the Electoral College does indeed protect the rural areas from the urban, then we should expect that “Red” was the victor in each case. As matter of fact, Figure 1 is the 2016 election whereas Figure 2 is from 2012. Which color won in 2012?

What of the extreme case of the second claim, that the Electoral College prevents the election of a tyrant?

What is a tyrant?

Oxford defines a “tyrant” as “a cruel and oppressive ruler.”

Let us first examine the word “cruel.” What constitutes cruel? “Cruel”, like “beauty”, is always in the eyes of the beholder because they are both subjective terms. To those that benefit or are not harmed by an action, it is not likely to be considered cruel action. However, those that are harmed by an action will most likely see that action as cruel.

Next, consider the phrase, “oppressive ruler.” How can one be a ruler and not be oppressive? To rule over someone is to claim ownership of that person. If you do not follow the rules laid out by the ruler, then the ruler claims the right to punish you. If you try to withdraw from the authority of the ruler, the ruler will force you to return because they view you as their rightful property. Contrast this with the characteristics of a leader. A leader does not punish or threaten people that do not follow; he persuades them to follow him. In fact, the moment a leader abandons persuasions and resorts to coercion or violence he ceases to be a leader and is now a ruler. It is the lack of oppression that distinguishes a leader from a ruler. All rulers must be oppressive. Therefore a “tyrant” is a cruel ruler.

This brings us back to the subjective term “cruel.” Recall that those that are harmed by an action will most likely see that action as cruel. Who will be harmed by a ruler? From the above we know that anyone who does not follow the edicts of the ruler or attempts to withdraw will be punished by a ruler. In so far as the ruler does not punish those that defy him, he is either: a) not a ruler (i.e. he is a figurehead or leader); or b) is granting privileges to select individuals. It follows that all rulers will most likely be cruel to anyone who opposes their authority. I emphasize most likely because it is impossible to know whether the opposed will consider the resultant actions of the ruler to be cruel.

If it is impossible to know whether the ruled will view the ruler as cruel, is it possible to answer, in an absolute sense, the question of the Framer’s intention to use the Electoral College to prevent the election of a tyrant? The initial response will appear to be “no”, however I will attempt to prove otherwise.

Opposing the Electoral College in Antifederalist No.72, “REPUBLICUS” writes:
…if any people are subjected to an authority which they have not thus actually chosen-even though they may have tamely submitted to it-yet it is not their legitimate government. They are wholly passive, and as far as they are so, are in a state of slavery.
Here he expresses the Lockean concept that for any government to be valid, it must have the support of all subjects and that those that disagree with the government have the right to withdraw from it, otherwise they are not free. Therefore, if a president fails to receive 100% of the vote of all inhabitants of the United States, he could be viewed as a tyrant by at least one person.

In other words, the Electoral College, rather than preventing the election of a tyrant, ensures the possibility that at least someone will consider the president to be a tyrant.

While the Framers could not control whether the public would consider a ruler to be cruel, they could have prevented a ruler altogether by: 1) allowing direct election by all inhabitants of the United States; and 2) allowing all those who wished not to be subject to the presidency to peacefully withdraw from its authority.

Moreover, as Lysander Spooner proves convincingly in No Treason:The Constitution of No Authority, the Constitution itself is a tyrannical document with no rightful authority.

This begs the question, if the Framers intended to prevent the election of a tyrant, why did they support a system which would ensure the possibility of one?

My Hypothesis
While I have not completed a thorough investigation of the backgrounds of all delegates at the Constitutional Convention (a good start would be here), it is my understanding that the majority were influenced by Plato. Plato believed in the concept of the “philosopher-king” and that only these “men of gold” met the requirements to rule the lower classes. It is my belief that Hamilton, Madison, and other key persons at the Convention considered themselves to be Plato’s “men of gold” and that they were the men that knew best for the nation.

I think it was their belief that they were philosopher-kings that motivated them to circumvent the Articles of Confederation and propose an entirely new federal government and ignore sound arguments such a bold act. This supports why, unlike the Declaration of Independence, the Constitution is riddle with inconsistencies and contradictions. The former starts with a bold statement of universal freedom to all men whereas the Constitution treated slaves as property of other men (i.e. a contradiction) and the Bill of Rights were an afterthought that had to be added as amendments to the document produced by the delegates. All of this supports my previous claim that the only requirement that appeared to be unanimously supported by the delegates was that it had to be able to pass ratification in the States. This meant principles had to give way for compromise. They weren’t concerned with liberty, they were concerned with proving they were “men of gold”.

I will leave readers with a thought experiment. Below are the introductions to the Declarationof Independence and the Constitution, respectively (emphasis mine):
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security
We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America;
Some items to consider:
  1. In each document, who is “we”? Who is “we” claiming to be? Are they whom they claim to be? Who, therefore, is “ourselves”?
  2. Do the conditions under the Articles of Confederation meet the requirements for establishing a new government set forth in the Declaration of Independence?
  3. Does the government established by the Constitution lay its foundations on the principle that “all men are created equal, …with certain unalienable rights”?
Last Minute Addition
I began writing this essay just after the November 8th election. In the last week of finishing up, I saw an article on Facebook that claimed the Electoral College was meant to strengthen the position of the slave states. While I haven’t had a chance to give thorough attention to this claim, my initial thought is that this claim is highly unlikely. I draw this conclusion because the man who participated in the creation of the Electoral College, Gouverneur Morris, was staunchly opposed to slavery. James Madison, also explicit in his desire to prohibit slavery under the Constitution, was a member of that committee as well. Absent historical records of the meetings of the Brearly Committee, however, it is difficult to say for certain.

No comments: