This blog originally appeared in The Hill.
The possibility of a second Donald Trump presidency provides perhaps the strongest case ever for the Electoral College. Were the Electoral College to work as the Framers originally envisioned, there is no chance Trump would even be a serious candidate in 2024, let alone 2016 or 2020.
The Electoral College is perhaps the most maligned and misunderstood institution in American politics. There have been more efforts to alter or abolish it than any other institution, and polls suggest large percentages of the public support replacing it with a direct popular vote for president.
Historian James MacGregor Burns describes the U.S. in 1787, at the time of the drafting of the Constitution, as an experiment. It was an experiment in popular government. The world was full of monarchies, but nowhere did democracy exist or was there a government where the people could select their leaders.
As the constitutional Framers debated how to structure the new government, “fear” was the word of the day. Slave states feared the free; small states feared the larger ones. Everyone feared that if the new Constitution were framed wrong, they would lose. These disagreements led to the infamous three-fifths compromise, where slaves would count only as partial persons in determining population for congressional representation. Additionally, a recent uprising by farmers, known as Shay’s Rebellion, meant many at the convention feared that the people might not be capable or knowledgeable enough to vote.
When all this fear came to the presidency, the question was how to select that person. Alexander Hamilton originally proposed a president who would serve for life. While there was some talk of direct election of the president, there was little support for it. The less populous states worried that a direct popular vote would mean they would be dominated by states with more voters. The slave and free states each feared that the direct popular vote might work to their disadvantage. Thus the compromise — the Electoral College.
The idea was for the legislatures of each state to select electors who would be temporary, beholden to no one, with the sole duty of picking the president and vice-president. The presumption was these electors would be of sound judgment and character, and they would make the best choice for president. As Alexander wrote 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.”
Similarly, James Madison worried that with direct elections, “The ministers of foreign powers would have and make use of the opportunity to mix their intrigues & influence with the election.” Pierce Butler, another constitutional framer, worried that the “two great evils to be avoided are cabal at home and influence abroad.” The Electoral College would address both.
But partisan politics quickly undermined the original vision of the Electoral College, as each state sought to control its electors and how they would be selected. In the early nineteenth century, as the spirit of democracy spread, legislatures gradually let the people vote to select the electors. Later on, states changed their laws to allow for each qualifying candidate to designate their own slate of electors, with popular elections determining whose slate was entitled to cast the electoral votes. Finally, fearing that the electors might not vote as the people decided, “faithless electors” laws were enacted to compel them to vote the way the popular vote went. The Supreme Court upheld such laws in Colorado Department of State v. Baca.
Changing notions of what democracy means have led to erosion in support for the Electoral College. Five times in American history — 1824, 1876, 1888, 2000, and 2016 — the winner of the national popular vote lost the presidency to the winner of the Electoral College. Many Americans saw this as undemocratic and urged that the Electoral College should go. One alternative is the National Popular Vote, a compact for states to cast their electoral votes for whichever candidate wins the national popular vote.
Now enter Donald Trump. Twice impeached, although not convicted; allegedly the beneficiary of Russian interference in 2016; now facing two indictments, with more possibly coming; already held liable for sexual harassment, and facing many other lawsuits. He is implicated in the January 6 attack on the Capitol and expresses no remorse for his behavior. By one count, he lied more than 20,000 times in office.
Yet Trump’s base is with him. He is the odds-on favorite to win the GOP nomination and perhaps the presidency again. For the first time, America could have a convicted felon as president.
Our constitutional framers would have declared him unfit to be president. Were the Electoral College operating how they had originally intended, there is no way Trump would now be a viable candidate for president. Perhaps the prospect of a second Trump presidency is the best argument one can offer for retaining the Electoral College.
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