By James Heaney
Tuesday, November 15, 2016
On November 8, Americans cast their votes, and Hillary
Clinton won more of them. Although some votes are still being counted as I
write this, it appears that, once California has fully reported, Clinton will
end up besting Donald Trump by about 1 percentage point, or roughly a million
votes. She will certainly be the winner of the national popular vote. In most
democracies, that would make her the winner—and the next president. But she
isn’t.
This was not a stolen election. It is not an error in our
system. This is by design.
America’s Founding Fathers were too wise to establish a
national popular vote for the highest office in the land. Instead, they created
an Electoral College. It spreads the power to elect the president across the
country, with every state getting a certain number of votes, usually
winner-take-all. This system means any would-be president has to win support
from a broad coalition that encompasses many diverse states.
The Electoral
College Makes the President Responsive to All America
Without the Electoral College, presidential candidates
wouldn’t bother seeking the support of Idaho potato farmers. They’d instead
stay in the coastal cities and try to run up their vote totals there. “Flyover
country” would never see a presidential candidate again. Thanks to the
Electoral College, every president has to be the consensus choice of the entire country, not just a few small
pockets of overwhelming popularity. The Electoral College thus strengthens the
several states and our entire federal union. We are very lucky to have it.
So Hillary Clinton lost. She may have won the most votes
nationwide, but her support was too concentrated in small pockets along the
coasts. Only Trump was able to assemble a strong cross-country consensus, which
united the South, the Mountain West, most of the Midwest, and—decisively—the
Rust Belt. Thanks to his greater breadth of support, Trump will likely end up
with 306 electoral votes, while Clinton will receive only 236. Trump wins.
Those are the rules of our system, and Clinton has
accepted them with grace, conceding defeat the morning after the election. Many
of her supporters consider it unfair, even unjust, that the candidate with the
most votes will not be president (for the second time in five presidential
elections). Some are even calling the Electoral College a “rigged system,” and
demanding that it be neutered.
Although this is their democratic right, it would be a
grave mistake to go against the Founders’ design. In any event, everyone
respects the outcome of this
election, because we all recognize that the Electoral College is currently the
law of the land, and that Trump won it fair and square. Therefore, Trump is the
president-elect.
Except…he isn’t. Everyone’s calling Trump the
president-elect now, but that’s not how the Electoral College actually works. Under the system our Founding
Fathers designed, not a single person in this country has cast a single vote
for Trump (or, for that matter, for Clinton). There is no president-elect.
There won’t be for weeks: the Electoral College doesn’t hold the actual
presidential election until December 19.
Meet Your Electors!
When you vote for president on Election Day, you aren’t
actually casting a ballot for a presidential candidate. Instead, you are voting for a slate of presidential electors from a particular political party. The electors on each
party’s slate are hand-picked party loyalists who are competing for the
opportunity to serve as Electoral College members from that state.
I’m a Minnesota resident. If I checked the box marked
“Donald J. Trump: Republican” on my ballot, I was actually casting my vote for the Minnesota Republican Party’s slate
of electors—ten decent, upstanding citizens, with names like Linda Presthus and
Paul Wendorff, whom nobody outside internal Minnesota GOP politics has ever
heard of.
Unfortunately, the Minnesota Republican electors didn’t
get as many votes on Election Day as the Minnesota Democratic electors did, so
the Democrats’ slate will represent us in the Electoral College instead.
Nationwide, assuming no recounts, Americans elected 306 Republican electors and
232 Democratic electors.
On December 19, the presidential electors of both parties
will meet in their respective state capitols. There, as required by the
Constitution, they will “vote by ballot for president.” Most people expect that
the Republican electors will vote for Trump and that the Democratic electors
will vote for Clinton.
But they don’t have to. Every elector is free to vote for
any natural-born citizen who is 35
years or older and has not already served two terms as president. The electors
could cast all of their 538 ballots for (let’s say) Mike Pence, and that would
make Pence the forty-fifth president. This would not be a “stolen election.” It
is not an error in our system. This is by design.
A Republic, If We
Can Remember It
The Founding Fathers were not exclusively—or even
primarily—concerned about sectionalism when they created the Electoral College.
What they were really afraid of was
democracy.
The Founders trusted that that people individually were
good, honorable, and wise. They bet their lives on the idea that such people
could govern a country for themselves. But the Founding Fathers did not think
so highly of “the people” collectively. They viewed the people as a mob, “frequently
misled,” as George Washington said, “often feeling before they can act.”
Democracy, John Adams warned, is bloodier than
monarchy—but only for a short time, because democracy “soon wastes, exhausts,
and murders itself… Individuals have conquered themselves. Nations and large
bodies of men, never.” Hamilton worried that, in a direct democracy, “Talents
for low intrigue, and the little arts of popularity, may alone suffice to
elevate a man” to high office. (Sound familiar?)
That is why there are so few opportunities for direct
democracy in the original Constitution: Senators were originally appointed
directly by state legislatures (until progressives overturned this safeguard in
the early twentieth century), judgeships and other posts were appointed by the
president and Senate, and the moderating influence of direct democracy was
contained to a single house of Congress, the House of Representatives, with no
popular election larger than a single congressional district. (Even those were
quite small: at the time, there were only 34,000 citizens per representative.
Today, there are more than 700,000 people in each district.)
The Idea Is to
Prevent Democracy
The most powerful office in the land, the presidency, was
even more insulated against the
popular will. As Alexander Hamilton explained in “The Federalist” No. 68, the
Electoral College was created for the express
purpose of preventing voters from directly selecting the president:
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.
Hamilton goes on to describe how damaging it would be for
the nation to have popular, direct votes for the presidency—damage any American
who has lived through the past five elections should recognize:
The choice of SEVERAL, to form an
intermediate body of electors, will be much less apt to convulse the community
with any extraordinary or violent movements, than the choice of ONE who was
himself to be the final object of the public wishes. And as the electors,
chosen in each State, are to assemble and vote in the State in which they are
chosen, this detached and divided situation will expose them much less to heats
and ferments…
We see, then, that the plainest reading of the Twelfth
Amendment is strongly supported by the clear intent of the Framers: the
presidential electors have an absolute right to deliberate among themselves,
setting aside external pressures, and to direct their electoral votes toward,
as John Jay put it, “those men only who have become the most distinguished by
their abilities and virtue, and in whom the people perceive just grounds for
confidence” (“The Federalist,” No. 64). Indeed, this is more than a right: it
is a grave and difficult duty.
Each and every elector, then, must search deep within his
or her conscience and determine who ought to be the next president of the
United States: the commander-in-chief of the world’s greatest military, chief
executor of the world’s greatest body of laws, and chief defender of the
world’s greatest Constitution. In this decision, the electors are bound by
nothing—not the instructions of their state legislatures, not the will of the
democratic mob. To make the electors subservient to someone else’s will, mere
automata executing a decision already made, would betray the Founding Fathers,
undermining the scheme of the Constitution and the presidency itself.
It is true that a number of states purport to bind
electors in various ways. Many states demand that electors pledge to cast their
electoral votes for a particular candidate and threaten fines for electors who
“break” that putative pledge. However, these laws do not alter how votes cast
by electors are counted (the Twelfth Amendment makes this clear), nor can these
laws be used after-the-fact to punish electors, because—as originalist legal
scholars have shown—they are uniformly unconstitutional. No sanction against a
conscientious elector has ever survived court review, and such sanctions remain
on the books only because they are completely unenforced.
Nor is there any risk that a conscientious elector will
accidentally cause Hillary Clinton to be elected because of a “spoiler effect.”
Unlike direct democratic votes in our system, the Electoral College requires an
absolute majority of 270 electoral votes to win. It doesn’t just give the
presidency to whoever has the most votes. If no candidate receives 270, then
the House of Representatives—controlled overwhelmingly by Republicans—chooses
the president from among the top three vote-getters. Regardless of how each
elector acts, the next president will be a Republican.
The Responsibility
Is Theirs Alone
So the decision falls to the electors. They are free to
choose the next president. They cannot escape this awesome responsibility by
appealing to the will of the people, nor by hiding behind a legally meaningless
pledge to some state or party. Just as Clinton did not earn the White House by
winning the popular vote, Trump did not earn the White House just because 306
Republican electors were chosen on November 8. Those electors now face a
difficult choice. I do not envy them.
If each of the 306 Republican electors truly believes, in
his or her heart of hearts, that Trump is the best man for the job, that he is
the American with the greatest “abilities and virtue, in whom the people
perceive just grounds for confidence,” who has all “the qualities adapted to
the station” of the presidency… in that case, by all means, they should cast
their votes accordingly, and Trump will become, on December 19, president-elect
of the United States.
But if there is doubt; if, after deliberation with fellow
electors, it seems clear that there are Americans better suited to serve as
commander-in-chief, then each elector who feels that way has both the right and
the duty, as officers of the Constitution of the United States, to vote for
somebody else.
That is the system our Constitution demands. It is not a
theft. It is not an error. It is by design.
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