Trump is why the framers created the Electoral College

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.

So why did the constitutional Framers create the Electoral College?

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.

This system was also defended as protecting the minority from the tyranny of the majority. A direct popular vote might result in small states or particular regions or interests being ignored. The Electoral College was, as political scientist Martin Diamond once argued, the check on populism that might go bad.

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.

The Case for Censuring and Not Impeaching Donald Trump

The  Trump-Ukraine Impeachment Inquiry Report issued on December 2, by House Permanent Select   It does so by amply documenting how Donald Trump sought to use the office of the presidency for personal political benefit at the expense of America’s national interests in tendering US military aid to Ukraine on the condition that its president announce it was going to investigate Joe Biden and Ukrainian involvement into the 2016 US elections.  The report also notes the unprecedented efforts by Trump to impede congressional investigations into this matter.  Both are serious matters.

Committee on Intelligence makes a damning case for impeachment.

            Yet even taking all of the facts alleged here as truthful, they alone should not be grounds for impeachment.  Additionally, if the House Judiciary now expands impeachment inquiry into additional matters that prove to be incriminating, they too should not warrant presidential impeachment even if the House concludes that they rise to the constitutional level of “treason, bribery, or high crimes and misdemeanors.”  It is not because these acts, or they many other abuses of power that the president has caused are not serious.  It is because impeachment is a losing strategy for House and Democrats.

            Speaker Pelosi was correct months ago when she said  Trump was not worth impeaching.  She correctly resisted the demand to impeach, only giving in when revelations of the phone call with the Ukrainian president were revealed.  As the Zelensky telephone saga as unfolded, there is little to suggest what the Democrats get by impeaching and instead stand to lose a lot.

            Consider first that after several weeks of hearings public opinion has mostly frozen. Polls suggest about half of Americans think he should be impeached and removed from office.  Trump’s based has rallied behind him and congressional Republicans show no sign they will defect.  It is skeptical that coming hearings too will change anyone’s mind.

            Part of the problem has been how the Democrats framed the issue–quid pro quo.  In describing the Zelensky call in terms of a narrow conception of bribery they missed the ability to paint a larger picture of Trump corruption and abuse of power.  The quid pro quo description forced  the debate into whether the president broker federal bribery law, allowing him and the Republicans  to claim denial of due process, use of hearsay evidence, or other claims that are appropriate to raise  in a criminal inquiry, but which do not fit into an impeachment process which Alexander Hamilton declared in Federalist 65 as a political inquiry.  The Democrats framing boxed them in and Republicans took advantage, allowing them to declare there was reasonable doubt about what Trump did.

            But the impeachment process is broken much in the same way that American government in general is.  The original design of the impeachment process came from constitutional framers who  did not anticipate or envision political parties and polarization to exist, and when the Senate was designed to be appointment and not elected.  Then checks and balances and separation of powers were meant to counteract presidential abuses of power.  Fast forward 230 years, there has never been a successful impeachment and conviction of a president and the powerful partisanship that now exists means that party loyalty is more powerful than checks and balances.

            No one seriously should think that were the House to impeach the president a Republican-dominated Senate will convict.  Split 53-47, 20 Republicans will not defect and join Democrats.  At best one can hope for is that Mitch McConnell will give Susan Collins and perhaps a couple of other endangered Republicans the permission to vote to remove the president, thereby ensuring their re-election and giving the party the opportunity to claim they were bipartisan.

            At worst, think of what happens to impeachment when it leaves the House and the Republican Senate controls the process.  For one, even though the Constitution implies that the Senate has to hold a trial, McConnell could refuse to do so, and no one can force them.  In Nixon v. United States, 506 U.S. 224 (1993) the Supreme Court said issues of impeachment are not reviewable by the federal courts, suggesting that if the Senate does not hold a trial, what then?

            Assume a trial is held.  Imagine first how the Republicans will put Biden on trial, perhaps calling him or his son to testify.  This is not simply an acquittal Trump can use to motivate his base.  Even if a trial is held, nothing really requires a when in terms of timing.  Maybe McConnell reprises the logic of delaying confirmation hearings in 2016 for Supreme Court nominee Merrick Garland, declaring that the trial will not occur until after the 2020 elections so that the people can decide.

            Or consider a different scenario.  Let’s say one of the Democratic Senators running for president gets the nomination.  Hold an impeachment trial in the Senate in October during the general election and you can lock down that Senator for weeks from campaigning.  Other political manipulations of the trial are also possible.  The point is that Democrats are not going to get a conviction and they stand to lose big time with impeachment.

            Here is where House censure is a viable alternative.  Continue to hold hearings, gather more evidence, make the strongest case possible for impeachment.  But then declare the conviction in the Senate is not possible because of partisanship or because they elections should resolve the issue, and then vote to censure.

            Censure may be a potent tool here.  Especially given that the president has said he will not let his staff participate in the House proceedings, the Democrats get the final word on Trump’s behavior, lacking the president’s side of the story in the proceedings.  Trump loses the ability to get the benefit of acquittal in the Senate, and swing voters in the critical swing states get the opportunity to render a final judgement via their votes in November.

           

Electoral College Do Your Job: Make Clinton President

You’re heard the news stories over the past two days that the electors in the Electoral College could still swing this election back to Hillary Clinton when they meet across the country to cast the ballots for their states on December 19. You’ve heard there is a petition with hundreds of thousands of signatures encouraging just that.

Constitutionally they have the power to do that, and if they care about democracy and the will of the people, that is the right answer.

First,  I did not support or vote for Hillary Clinton.

Having said that, I believe that because Hillary Clinton did win a majority of the popular vote, she should be our next President.

That would be the case if the President were selected directly by the people. Majority rule by the people through elections is central to almost everyone’s conception of what a modern representative government is, and in democracies around the world, the people select their leaders that way.

Not so, currently, in the United States. Instead, the President is selected by the Electoral College.

That should not happen in this day and age. The Electoral College model of electing a leader is an outdated, anti-democratic institution.

In 1787, when those who framed our government deliberated the drafting of the Constitution, the Electoral College was selected as the mechanism to pick the President for three reasons.

First, it was a by-product of a compromise of a conflict between the big versus small states. Sparsely populated states feared they would be ignored if population were the basis of Presidential selection.

Second, southern states feared that if population were a basis to pick a President the populous northern states would outlaw slavery. It was this same fear of slavery being banned that led to the famous “three-fifths compromise” that counted slaves as only partial humans for the purposes of taxes and representation.

Third, the framers of the Constitution and our government simply feared common persons, seeing them not as competent to select a position so powerful and important as the President.

Alexander Hamilton, writing in defense of the Electoral College in Federalist Paper 68, declared of the President “the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.” Yet, he declared that such a choice should be entrusted to a small group of people consisting of “men most capable of analyzing the qualities adapted to the station. . .[and who] will be most likely to possess the information and discernment requisite to such complicated investigations.”  In his Notes of the Debates in the Federal Convention of 1787, James Madison quotes several of the constitutional framers who opposed directed popular selection of the President, such as Elbridge Gerry, who saw the people as “uninformed, and would be misled by a few designing people.” And in Max Farrand’s definitive The Records of the Federal Convention of 1987, Roger Sherman said that the people will “never be sufficiently informed.”  Moreover in his classic defense of the Electoral College, historian Martin Diamond saw the institution as a means to protect minority rights, guarding the country against regionalism, sectionalism.

The Electoral College was the product of slavery, racism, and distrust of the people to make their own choices. It is part of a Constitution silent on the right to vote, and to this day there remains no constitutional right for the people to vote for President. The Constitution ignores the popular vote, and delegates to the states the power to select the Presidential electors. It is merely by the grace of state laws that we are permitted to go to the polls to chose the electors who eventually chose the President.

With this election, we will now have experienced five elections where the winner of the popular vote was selected as President but where that winner was not allowed to serve as President. Hope that the Electoral College would protect small states from being ignored or that the Electoral College model would prevent only a few states or regions of the country from determining the presidency have not lived up to the founders’ intent.

As I pointed out in Presidential Swing States: Why Only Ten Matter, the Presidential election process has fallen into a predictable pattern where only a handful of swing voters in a few swing counties in a few swing states ultimately decide the election. It happened again in 2016.  This is hardly democratic, producing a system where the voices of only a few are heard and the majority are ignored or disenfranchised in many states.

The Electoral College is simply outdated, it distorts the views of the majority in the ways the constitutional framers never would have envisioned, and it operates with a view of democracy and of the people that is
inconsistent with contemporary conceptions of what a representative democracy should be–which is that the people have a constitutional right through free elections to let the majority pick their President.

So what is to be done? A 2011 Gallup poll indicated that 62% of the public supports amending the Constitution to allow for direct popular vote of the President. However, amending the Constitution is near impossible, and doing so would not change the outcome of this election in favor of the candidate who was selected by popular vote.

There is another option that can be exercised, and I urge our electors to truly consider it. Come December 19, when the electors of the different states convene across the country, they should simply exercise their legally-viable independent judgment that the constitutional framers envisioned and do what Alexander Hamilton declared is in the best “sense of the people”–and cast their vote for Hillary Clinton for President.

It need not even be all the electors who do that. Simply having some of the electors in the close swing states of Florida, Michigan, New Hampshire, North Carolina, Ohio, and Wisconsin split evenly to reflect the popular votes in those states would be sufficient to ensure the people’s choice is made, that the people’s are heard and valued, to show the people—each one of us—should and do count.

 It would not be unprecedented for electors to cast their votes independently. Over time there have been 157 “faithless electors,” as they are called, members of the Electoral College who did not vote for their party designated candidate who won the state. The most recent was in 2004 when an anonymous elector in Minnesota voted not for John Kerry but John Edwards for President.

The Electoral College may be a broken model-yes, but it’s our existing model-yes again, so why should the electors not do what can and should be done, which is legal and ethical within the framework of the existing model, and vote for the popular candidate?

In voting independently, an elector would be doing exactly what the constitutional framers intended; the electors would be using their positions to vote in line with the sense of the people–in this case, following what the majority voted this past November, which is to make Hillary Clinton the next President of the United States.