What was the Founders’ Intent in Creating the Electoral College?

“GREAT COMPROMISES WERE MADE”

by Sharon Rondeau

(Apr. 1, 2019) — Over a number of years and increasingly within the last several weeks, political candidates, state legislatures, members of Congress, and some average Americans are calling for a bypassing or abolition of the Electoral College and for the establishing of a “national popular vote” to elect the president.

Democratic presidential candidate and U.S. Senator Kamala Harris, whose constitutional eligibility as a “natural born Citizen” is in question, has said she is “‘open to’ discussing eliminating the Electoral College,” while candidate and U.S. Senator Elizabeth Warren has enthusiastically advocated for it.

Former Texas congressman and Democratic candidate Beto O’Rourke has said that he “sees ‘a lot of wisdom’ in abolishing Electoral College.”

In 2017, Rep. Steve Cohen (D-TN9) introduced a bill to eliminate the Electoral College in favor of the popular vote.  As this article was under preparation, NBC News reported that some Senate Democrats plan to introduce a constitutional amendment to do away with the Electoral College.

The Hill confirmed the report, stating that Rep. Brian Schatz (D-HI) will introduce the measure this week, supported by Democratic presidential candidate Kirsten Gillibrand and two other U.S. senators.

Presidential candidate and Sen. Cory Booker (D-NJ) also supports abolishing the Electoral College.

The Electoral College was implemented by the Framers as a method of indirect popular election of the president. Set forth in Article II, Section 1, clauses 2, 3  and 4 of the U.S. Constitution, the system utilizes “electors” chosen by the states who cast their votes for president the month following the quadrennial presidential election.

In September 1804, clause 3 was amended by the ratification of the 12th Amendment, passed with the intent of avoiding a tie vote by state electors, which would then send a presidential election to the House of Representatives.

Today, the political parties choose the electors who will represent them when the Electoral College meets.  No one serving as a federal office-holder at the time may serve as an elector.

The number of electoral votes assigned to a state is based on both population, which determines the number of congressional districts, and the constitutional provision of two U.S. senators to each state, regardless of size or population.  Electoral-rich California possesses 55 electoral votes due to its two senators and 53 members of the U.S. House of Representatives.

The 23rd Amendment awarded three electoral votes to the District of Columbia, which is not a state.  With a total of 538 electors nationwide, 270 electoral votes are required for a candidate to win the presidency.

As of 2016, 29 states and the District of Columbia have laws requiring presidential electors to vote “for the presidential candidate for the party they were selected to represent.”  Forty-eight of the 50 states utilize a “winner-take-all” method of awarding electoral votes, with Maine and Nebraska utilizing a “proportional distribution” method.

The electors meet on “the first Monday after the second Wednesday in December after the presidential election” in their respective capitals to cast their votes for the president and vice-president on separate ballots. The vote tallies are then communicated to Congress and the National Archives.

On January 6 of the new year, or another date that month if amended by Congress, the current vice president publicly counts the votes and officially announces the winner of the presidential election and vice-presidential election.  Constitutionally, the vice president is required to ask if there are any objections to the election prior to certifying the vote counts.

Detractors of the Electoral College object to the very real possibility that a candidate could win the Electoral College but lose the popular vote.  The phenomenon has occurred five times in U.S. history, most recently with Donald Trump in 2016.

Regarding presidential elections, the National Conference of State Legislatures (NCSL) states:

The Electoral College is a unique method for indirectly electing the president of the United States. It was established by Article II, Section 1, Clause 2 of the U.S. Constitution and modified by the 12^th and 23^rd Amendments.

The Electoral College consists of a total of 538 members, one for each U.S. senator and representative, and three additional electors representing the District of Columbia. Each state has a number of electoral votes equal to the combined total of its congressional delegation, and each state legislature is free to determine the method it will use to select its own electors.

Currently, all states select electors through a popular vote (although how that vote works can differ), but that was not always the case throughout American history. In many states, the state legislature selected electors, a practice which was common until the mid-1800s.

On the topic of Electoral College “reform,” the NCSL offers:

In the years since the highly controversial 2000 presidential election, bills have been introduced in every state in the country to change the process for selecting electors. During the period of 2001-2006, most Electoral College reform bills proposed switching to the district system. None of these bills passed. In the years since, attention has largely shifted to the National Popular Vote (NPV). This is an idea that would allow states to bypass the Electoral College without amending the U.S. Constitution. When a state joins the NPV Compact, it promises that it will give all of its electoral votes to the party that wins the national popular vote, rather than the party that wins the state popular vote. For instance, if the Democratic candidate won the popular vote in California, but the Republican candidate won the popular vote nationwide, California would be required to send the Republican slate of electors to the meeting of the electors. The NPV has not yet taken effect; states with a total of at least 270 electoral votes must join before it can function. Read more about the National Popular Vote.

The idea of abolishing the Electoral College and instead electing the president by direct popular vote comes about every few years. Abolishing the Electoral College requires an amendment to the US Constitution. There are two ways to do that:

• • Congress can propose an amendment by a two-thirds vote of both chambers. The amendment then has to be ratified by the legislatures of three-fourths of the states. All existing amendments to the Constitution were made in this manner.
  • The legislatures of two-thirds of the states can petition Congress to convene a Constitutional Convention. At a Constitutional Convention, any part of the Constitution could be amended; action is not restricted to the sections governing the Electoral College or any other part of the Constitution. Again, any proposed amendment would have to be ratified by three-fourths of the states. This method has never been invoked.

The National Archives characterizes the Electoral College as “a process, not a place.”  It explains that “The founding fathers established it in the Constitution as a compromise between election of the President by a vote in Congress and election of the President by a popular vote of qualified citizens.”

The organization “National Popular Vote” has reported a building movement on the part of the states to endorse election of the president by enacting “legislation” to bypass the Electoral College and create an “interstate compact.”  Indeed, such public figures as American historian and former Speaker of the House Newt Gingrich have endorsed the plan, apparently without proposing a constitutional amendment to enact it.

An amendment to the Constitution requires ratification by two-thirds of both chambers of Congress and the legislatures of three-quarter of the states (38), a process that has taken years in the past to complete.

As of this writing, the NPV initiative reports that 14 “jurisdictions,” including the District of Columbia, have entered into an “interstate compact” in which their respective governors and mayor have agreed to award all of their electoral votes to the winner of the national popular vote for the presidency.  “The bill ensures that every vote, in every state, will matter in every presidential election. The National Popular Vote bill preserves the Electoral College and state control of elections,” the website states.

Article I, Section 10 of the Constitution states, “No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility,” Although the U.S. Supreme Court has ruled that in apolitical matters such as disputes over boundary lines, states may uphold such agreements, whether or not the NPV interstate compact must have congressional approval is an open question.

A 2008 analysis by a Connecticut legislative fellow of an Electoral College interstate compact, which the state’s legislature voted to join last year, states, in part:

Advocates of the National Popular Vote Interstate Compact point to the constitutional right of states to choose their electors to demonstrate the constitutionality of the proposal. The manner of conducting presidential elections is covered in the U.S. Constitution: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ” (U.S. Const., Article II, Section 1, Clause 2). This standard has been reinforced by the U.S. Supreme Court, which held that the clause “cannot be held to operate as a limitation on” the power to appoint electors, assuring that the mode of appointment belongs exclusively to the states by the Constitution (McPherson v. Blacker, 146 U.S. 1, 25 (1892)).

Critics, however, see the Compact Clause as a roadblock to the proposal. If the National Popular Vote Interstate Compact is considered a “political compact” under the Compact Clause, then the Constitution requires congressional consent, and the compact would need to receive federal approval. The power to appoint electors is exclusively granted to the states, but that power is still subject to other provisions of the Constitution. Accordingly, the court must analyze the appointment of electors under other provisions of the Constitution, including the Compact Clause (McPherson v. Blacker, 146 U.S. 1 (1892)).

Is the National Popular Vote Really a Compact?

The first question is whether the National Popular Vote Interstate Compact is an “interstate compact” as defined by the Constitution. The U.S. Supreme Court has construed the meaning of “compact” broadly: “The legislative declaration will take the form of an agreement or compact when it recites some consideration for it from the other party affected by it” (Virginia v. Tennessee, 148 U.S. 503, 520 (1893)). The term “compact” includes “all forms of stipulation, written or verbal, and relating to all kinds of subjects; to those to which the United States can have no possible objection . . . as well as to those which may tend to increase and build up the political influence of the contracting states” (Id. at 517-8).

NPV reports that in early 2018, a “coalition of law firms, organizations, and professors” was responsible for filing lawsuits in California, Massachusetts, South Carolina, and Texas challenging the “winner-take-all” method of assigning presidential electors’ votes.  The NPV opposes proportional assignment of electoral votes, claiming that it “fails when evaluated against the criteria of whether it would make presidential elections more competitive, whether it would accurately reflect the nationwide popular vote, and whether it would make every vote equal. In short, allocating electoral votes by congressional district would make a bad system even worse.”

According to research by The Daily Signal, George Soros-affiliated groups and individuals are funding the NPV effort, with support from some Republicans and “conservatives.”

In 2001, Georgetown University Professor Emeritus Walter Berns wrote an in-depth essay on the Electoral College in which he contended:

…the issue that ought to engage our attention is the one the framers debated over the entire course of the constitutional convention, from May 1787 to September, namely, what way of election is more likely to produce a president with the qualities required of the person holding this great office? In all the years I have been engaged in this debate, in all the times I have testified on this issue before a House or Senate committee, I have yet to encounter a critic of the Electoral College who argues that a president chosen directly by the people is likely to be a better president. And that, surely, is the issue.

On March 28, The Post & Email interviewed New Jersey attorney Mario Apuzzo on his thoughts about the present system of electing the president and calls to change it.  We brought to his attention the “interstate compact” which reportedly plans to activate once states representing 270 electoral votes are pledged.

In an in-depth response, Apuzzo said:

This is a very complicated and involved area; there are a lot of moving parts to it.  There is a constitutional basis to the Electoral College.  Some would say it’s anachronistic, but it’s not, because the same concerns that faced the Founders face the nation today.

How to elect the president of the new nation was decided at the Constitutional Convention, where great compromises were made in order to bring the union to fruition. You had large state and small states.  The small states would not have joined the large states if they were to have lost their influence, their power to operate as a sovereign state.  Yhe compromises are very important, and that leads to the Electoral College, which I submit was also a compromise for the small states.

We have a constitutional republic, not a democracy, and we also have a federalist system where the states are guaranteed their independence except to the degree that they gave power to the central government.  The federalist system has worked well for us because it allows the states to operate, and all the control does not come from one place.  You have decentralization, so to speak, but we also need a national government, because that’s why they came together to form the union.

The Constitution guarantees each state a republican form of government.  Article IV, Section 4 provides: “The United States shall guarantee to every State in this Union a Republican Form of Government…”

This is very important to understand, because James Madison wanted to avoid factions.  How did he define “factions”? These were groups of people who had a common interest that would violate the rights of others or harm the nation as a whole.  Alexis de Tocqueville would write about it as “the tyranny of the majority.”  What was that?  A faction which could grow to more than 50% of the population and sacrifice, to its own passions and interests, both the public good and the rights of other citizens.

How did the Founders deal with all of this?  Madison proposed a republic, which would give the minority the protection it needed.  This was very important for our nation because the Framers were very leery of democratic majority which would eat up the interests of others and the grand good because of some passion or self-interest.  That’s why we have the Electoral College.

Interesting reading is Hamilton’s Federalist Paper #68.  He talks about the mode of electing the president and his fear of directly electing the president. What’s happening with the interstate compact is we’re turning over, to a super-majority, the national vote, All you need is just over 50%, which will control everything for the whole country.  It is contrary to the foundations of our nation, contrary to the Constitution.  It’s not guaranteeing small states the protection they need as republican states.  It’s violating the letter and spirit of what Hamilton said about having a day when a group of people get together and say, because of passion or whatever is going on, “We’re going to elect the president.”

We’re not talking about the House of Representatives or the Senate; we’re talking about one individual who has tremendous power over the whole nation.  So you’re going to give a mass of people, with one vote more than 50%, and that faction is going to control what the rest of the country does.

This compact would force the people of each state to abandon their own independent judgment as to who should be president in favor of the will of the majority and large or urban population centers of other states. It would impose the will of the people in large or urban states as to who should be president on the will of others in small or non-urban states.  It would turn the election into a national urban election rather than a state-by-state election.

Each state was guaranteed in the Constitution the right to vote for a president; again, this is part of republicanism. What’s strange is that of the states in the compact, even if somebody else won the Electoral College of a state, those electoral votes are not going to that candidate because the majority in other states would control it.  In other words, you have these states sitting on the sidelines saying, “Who got the majority of the votes?” but it doesn’t matter.   It doesn’t matter who got the electoral votes of the states in the compact.  Those Electoral College votes could have gone to somebody else.  We’re trumped — and that’s not a play on words — by the national vote.  So even though somebody else would have gotten those votes, he/she doesn’t get them because the popular votes trumps it.

There are a lot of problems with it constitutionally.  If you look at the Ninth Amendment, it gives rights to the people not given away.  What about the rights of the people in the smaller states?  They’re losing their right to elect the president.

If you look at the Tenth Amendment, those are powers reserved to the states.  What happens to the power of the state to have a say in who is elected president?  They’re losing it because of the compact between others states, so now the states are competing with each other.  That is something we’re supposed to avoid, especially when it comes to the president.  They’re rigging the system.

Another clause in the Constitution, which is the “privileges and immunities” clause under Article IV, says, “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”  What happened to the citizens in the small states?  What happened to their “privilege and immunity” of electing the president? It’s gone, because now they’re subject to the will of the majority, which Hamilton and de Tocqueville warned us about.  They lose their right.

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Please see Part 2 of this series.