The Electoral College Enigma – Part IV

To paraphrase Hamlet, “To abolish or not abolish the Electoral College, that is the enigma.”  If a national vote were taken today, abolishment would probably be the answer.  That is based on every public poll taken by Gallup since the first one on the subject in 1948 that average out at about two-thirds for abolishment.

The polling numbers were as high as 80 percent and a low of 58 percent for abolishment––until the last one in December of 2016 when there was a sudden increase in the favor of maintaining the College.  Although a majority of 49 percent voted for abolishment, the favorability number jumped to a high of 47 percent.  That anomaly also showed up in a McClatchy-Marist poll also in December revealing that only 52 percent of registered voters think that the popular vote should be the deciding factor in future elections, and 45 percent think the Electoral College should remain in place. Why this sudden anomaly has not been explained.

More Democrats than Republicans believe in abolishing the system — 78 percent. On the other hand, 67 percent of Republicans and 52 percent of independents prefer to keep the system in place.  For now, it seems, any change still remains a far-off notion.

There is another issue not fully recognized by the majority of the public.  It involves the most fundamental cornerstone of our governmental structure.  We are not, have never been, nor did the Founding Fathers intend us to be a democracy––we are a republic.  The statements of several of the Founding Fathers best elucidate this below.

Democracy! What Democracy?

Alexander Hamilton asserted, “We are now forming a Republican form of government. Real liberty is not found in the extremes of democracy, but in moderate governments. If we incline too much to democracy we shall soon shoot into a monarchy, or some other form of a dictatorship.”

Thomas Jefferson declared: “A democracy is nothing more than mob rule, where fifty-one percent of the people may take away the rights of the other forty-nine.”

Benjamin Franklin had similar concerns of a democracy when he warned, “Democracy is two wolves and a lamb voting on what to have for lunch.”

John Adams: “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.”

James Madison, the father of the Constitution wrote in Federalist Paper No. 10 that pure democracies “have ever been spectacles of turbulence and contention; have ever been incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

The Constitution itself, in Article IV, Section 4, declares: “The United States shall guarantee to every State in this Union a Republican Form of Government.”

Clearly, the Founders have given us ample warning that democracies have historically led to tyranny and that, in their wisdom, they never intended our nation to devolve into a democracy.

Not Your Founders’ Version

I emphasize that because it explains the Founders’ antipathy to the popular vote, and thus to the creation of the Electoral College.  However, there is a major counter argument to that position. What is overlooked by most, especially those who firmly insist on a literal interpretation of every word in the Constitution (Anthony Scalia and more recently the new justice, Neil Gorsuch), is that what we have today is not your Founding Fathers version of the Electoral College. Instead, we have fabricated a system changed almost beyond recognition from its original creation and intention.

In fact if the Founding Fathers, were resurrected today, it would be virtually impossible for them to recognize, much less acquiesce to our existing system, because it is not the architecture they created. Those defending the current structure are not defending the Electoral College the Founding Fathers created, they’re defending something new and different.

Several of the “different” issues had been covered in my previous articles.  However the one that is most troubling was provided in an article in US News just after the recent election. The author/historian, Robert Schlesinger, son of the famous historian Arthur Schlesinger wrote, “Regardless of whether you want to preserve the Electoral College as it is, tweak it (as I do) or scrap it entirely, you have to understand that it doesn't function today the way the Founding Fathers planned.” He then explained:

“In the 21st century, electors are rubber-stamps rather than chaperones. And that isn't necessarily a bad thing, given how incredibly elitist that conception of the Electoral College is; but it's also not precisely what the founders envisioned. Instead of an elitist cabal substituting its wisdom for the judgment of the voters nationwide, the federal system does it instead.

“That is in large part due to the unit rule – which awards all of a state's electoral votes to whomever gets the most in that state, regardless of their margin of victory – which obtains in 48 states and the District of Columbia (while Maine and Nebraska split their votes according to results in individual congressional districts). And while defenders of the Electoral College seem to think that the unit rule is an inherent part of the system, it's not. The Constitution says how many electoral votes each state gets but says nothing about how they're awarded.”

Therein lies the possible answer as to how the popular vote could be initiated without abolishing the Electoral College through the means of a constitutional amendment as is now required. It is important to recognize the difficulty in enacting a constitutional amendment. Since 1789 there have been some 11,000 attempts to amend the Constitution––only 27 have passed and 10 of those were the Bill of Rights.  Essentially, it has taken 228 years to pass just 17 constitutional amendments.  Realistically, it would be impossible to eliminate the Electoral College through the means of a constitutional amendment. 

Solving The Enigma

So, is there a way to obviate the Electoral College without abolishing it completely, thus avoiding the need for a constitutional amendment? Laurence H. Tribe, a professor at Harvard Law School recently suggested the following:  “For reformers, the best hope may lie in the so-called National Popular Vote Interstate Compact, an agreement among states to award all of their respective electoral votes to the candidate who wins the popular vote in a given election.”

I mentioned earlier that I had written a series of articles on the Electoral College in this newspaper five years ago in 2012.  In that series I covered the Popular Vote Interstate Compact, and what follows is an update on that piece:

Let’s examine one proposal that appears to have the winds of public opinion behind it. The movement is called the National Popular Vote Compact.  There hasn’t been that much publicity about it, although it could eventually become the new law. The concept itself is so simple and obvious that it is a wonder that it took so long to evolve.  It is simple because it avoids the main barrier over the years to change election law, the need to amend the Constitution.

Abracadabra

It almost works by misdirection in that it recognizes that the states have Constitutional leeway to appoint and direct its electors in any manner it sees fit.  Thus a state legislature can pass a bill mandating that instead of awarding its electoral votes to the winner of the election within the state, electors would cast all the votes for the winner of the national election.

Few people know that 11 states have already passed legislation to initiate that type of plan, and bills have already passed the lower house in twelve other states.  The 11 states control 165 of the electoral votes, but a total of 270 electoral votes, 105 more (51% of the 538 total) are required for the concept to become law.

The beauty of this proposal is that it does not dismantle the Electoral College, it merely changes the voting process at the state level (a move that most consider perfectly constitutional), and therefore the difficult amendment process is short-circuited.

So what do you think?  Would you prefer to maintain the system devised 223 years ago by a group of men who could never have dreamt of the advances in transportation, instant communication, or the level of education we enjoy today –– or are you a Constitutional originalist convinced that the Founding Fathers could do no wrong?

In one part of this series I quoted the famed 20th century journalist, critic, and satirist, H.L. Mencken, who wrote, “No one ever went broke underestimating the intelligence of the American public.” I also quoted another of his many maxims (below) in the very last paragraph of my 2012 Electoral College series.

Here is another of his maxims (confirmed as accurate by Snopes) that some may believe has already come true. If so, let’s hope it doesn’t recur. Writing for the Baltimore Evening Sun on 26 July 1920, close to 100 years ago, Mr. Mencken became a clairvoyant, a prognosticator beyond compare.

“As democracy is perfected, the office of president represents, more and more closely, the inner soul of the people. On some great and glorious day the plain folks of the land will reach their heart's desire at last and the White House will be adorned by a downright moron.”

Incidentally, the Founders firmly believed the Electoral College would prevent this.  Perhaps the original version would have.