College dropouts

On May 7, 2013, Clark County Sen. Pat Spearman testified before the Nevada Senate's Legislative Operations and Elections Committee on a measure to replace Nevada's law covering presidential electors with a new one drafted by a national group.

“At the beginning of the republic, before there were any political parties, the intent was that these electors would meet as a 'college' to deliberate and select the best men for the office of president and vice president,” Spearman said.

It was not true. The intent of the founders was that electors not be collegial, and to that end, they wrote into the United States Constitution procedures of their own, at article 2, section 1, clause 3: Electors from different states could not gather together. They had to meet in their own states, and there cast their ballots. They could not meet in the U.S. capital or any other common site for a national meeting to vote. After they voted, “they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States [the location of the national capital had not yet been decided], directed to the President of the Senate.” The constitutional convention delegates envisioned the “best men” in society serving as electors.

There is no electoral college. The term does not appear in the Constitution. It came later, a product of the time when the founders’ vision was being twisted and subverted, the presidential electors hijacked by the political parties. The term came later, but the college never came at all—it has never existed. It’s a myth.

Why did the founders keep the electors away from each other? Two of the most common words that appear in the constitutional convention debates are cabal and faction. We’ll get to faction later, but the founders were concerned about machinations and manipulation of the votes of the presidential electors—a cabal that could happen at the hands of men inside the country or foreign countries.

Constitutional convention delegate Gouverneur Morris of Pennsylvania said, “As the electors would vote at the same time throughout the United States, and at so great a distance from each other, the great evil of cabal was avoided.”

So it has become traditional for the electors to gather in their state capitals to avoid collegiality.

Spearman can be forgiven for her mistake. There is a lot of bad information out there about the presidential electors system. Such fables, unscrutinized and repeated by journalists, are perpetuated generation after generation.

What it comes down to is this: The presidential elector system we have today is not the one the founders created.

Washington Post reporter Jim Hoagland: “And it falls well within our traditions and within the system that our forefathers, the founding fathers, brought forth.”

See? If a big-time reporter can get things wrong, so can a Nevada senator.

I used to attend Nevada presidential elector votes and they were so un-newsworthy that I was often the only one. In more recent years, they have become crowded as our political system has become less stable.

Language is important here. The public elects. The electors appoint. The motion at the constitutional convention was, “Shall the national executive be appointed by electors?” Then why did they call them electors? Perhaps because it made the electors’ highhanded role more palatable to the public, like President Kennedy calling his illegal blockade of Cuba a quarantine.

As designed by the constitutional convention, the selection of a president can come in two phases. After the public votes in the first phase, the electors have the authority to either approve the public’s choice or not in the second phase. The arrangement nearly wrecked the United States in its infancy. Alexander Hamilton, currently the subject of a popular fad, was one of the wreckers. He wrote in the “Federalist 68” that no one could manipulate the electors “when it is to embrace so considerable a number of men, requir[ing] time as well as means.” But after ratification, it was Hamilton himself who did the manipulating over great distances.

He repeatedly and recklessly tampered with the presidential appointment machinery. In 1789, he lobbied electors to reduce John Adams’ total votes for vice president for no apparent reason except his disdain for Adams. In 1796, Hamilton gamed the presidential electors in an effort to have presidential candidate Adams displaced as the winner by his vice presidential running mate, Timothy Pinckney. Hamilton bungled the job so badly that President Adams ended up with his opponent in the presidential race, Thomas Jefferson, as vice president.

Hamilton’s machinations demonstrated how easily these “best men” could be manipulated and gave the presidential elector system the poor reputation it still enjoys. The result was the 12th Amendment requiring electors to vote for president and vice president separately to reduce the chaos. But the elector system itself hung on.

So did factions. That was what the founding fathers called political parties, and they didn’t want them near the presidential electors.

Why have electors at all? The most common observation today is that it was done to prevent the election of demagogues by the public. While that was mentioned in the constitutional convention, it was not the only thing or even the most important concern. One reason that occasioned considerable comment was the size of the country in an age of poor communication. What was the chance that a voter in, say, Massachusetts would be familiar with a candidate from Georgia, or vice-versa? George Mason of Virginia: “The extent of the country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the candidates.”

That is plainly a concern that has passed, though the guarantee that better communications make a wiser electorate seems less than ironclad.

Another concern that seemed to eclipse the fear of a demagogue was concern over influential mass groups or manipulative figures, though neither campaign handlers like Karl Rove and James Carville nor groups like the National Rifle Association and National Broadcasters Association had yet emerged. Veterans groups had, however.

Elbridge Gerry of Massachusetts did not think the public could be trusted to elect the president because citizens would be manipulated by clever men or influential groups. “The ignorance of the people would put it in the power of some one set of men, dispersed through the Union and acting in concert, to delude them into any appointment.” Gerry said the members of the Society of the Cincinnati, a veteran’s organization, “are respectable, united and influential. They will, in fact, elect the chief magistrate in every instance if the election be referred to the people.”

Other delegates had greater faith in the public. Gouverneur Morris: “It is said the people will be led by a few designing men. This might happen in a small district. It can never happen throughout the continent.”

As political parties developed and evolved, they slowly began usurping the roles of presidential electors. Legislatures enacted laws barring the electors from acting as the U.S. Constitution told them to act. Nevada once had a law (Nevada Revised Statute 298.080) telling presidential electors to “proceed conformably to the Constitution of the United States and the laws of the United States.” Significantly, it has recently been repealed. Presidential electors can comply with Nevada state law or with the federal constitution. They cannot do both. Nevada law says electors are bound. The U.S. Constitution says they’re not. The same is true in 29 states.

The United States Constitution empowers presidential electors to act as free agents, able to vote for whomever they choose. Nevada Revised Statute 298.065 tells them they must vote in compliance with their political party or independent candidate pledge—and that each cannot be an elector unless s/he signs such a pledge. Can a state law override the United States Constitution?

In 1952, a functionary of the Alabama Democratic Party named Ben Ray refused to certify a presidential elector candidate named Edmund Blair to the secretary of state because, as the founders provided, Blair would not pledge himself to the party’s candidates. It indicates how far from the founders’ intent the process had come that a party functionary even had such a semi-official role.

The court upheld the right of the political party to require such a pledge but did not address itself to whether a presidential elector was free to vote for whomever he chose. That was not at issue in the case, and no other case has yet addressed it.

But in the Alabama case, Justice Robert Jackson—supported by Justice William O. Douglas—did address it in dissent, saying the parties’ role had caused the system to deteriorate: “No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices. Certainly under that plan no state law could control the elector in performance of his federal duty. … This arrangement miscarried. Electors, although often personally eminent, independent and respectable, officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire: They always voted at their Party’s call And never thought of thinking for themselves at all. As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.”

In Nevada, Republican electors run against Democratic electors. The candidates for elector are chosen by the state political party conventions. Just as the founders never intended.

CBS reporter Wyatt Andrews on the winner-take-all system, November 8, 2000: “Maybe so, but those are the rules under the Constitution.”

The Constitution makes no mention of winner-take-all. It gives legislatures wide latitude over elector procedures, so winner-take-all is probably legal, but the constitutional convention delegates also seemed to assume the electors would vote by district. And initially, they did vote by district. Kentucky, Maryland, North Carolina, Tennessee and Virginia allocated electors by district and some other states used versions of districts. Winner-take-all came along later—and was a product of political parties, who could not resist the temptation to increase their states’ value in the election over other states, forcing still more states to go to winner-take-all to remain competitive with the first states—and increasing the chance that an unelected president would be appointed by electors.

The political parties were playing with live ammo, and it caused four elected presidents to lose appointment by electors. Every one of them was a Democrat, yet that party never took up the cause of correcting the system, even when it enjoyed massive congressional majorities such as 2009—just eight years after an unelected Republican was appointed president by the electors.

Today the term faithless elector refers to electors who are faithful to the Constitution—but not to the political party. James Madison biographer Michael Signer has proposed they be called conscientious electors. Late in his life, Madison—known as the father of the Constitution—called for constitutional amendment to do away with winner-take-all. In 1823, he wrote, “The district mode was mostly, if not exclusively in view when the Constitution was framed and adopted; & was exchanged for the general ticket [winner-take-all] & the legislative election, as the only expedient for baffling the policy of the particular States which had set the example.”

Madison, like most, also argued that winner-take-all injured smaller states, a view that continues to prevail today. FairVote.org: “Small states knew they were not helped by the winner-take-all rule that advantaged the most populous states.”

Nevertheless, folk wisdom about the elector system being an aid to small states still circulates. In these pages last month, for instance, columnist Brendan Trainor wrote, “The Electoral College may be one of those outdated 18th century institutions, like the Constitution, that liberals feel should be replaced, but it has served us well. If it wasn’t for the Electoral College, small states like Nevada would have even less power than now.”

He didn’t explain how, but let’s take a look.

On Sept. 12, 1932, the Elko Independent published a map of New York Gov. Franklin Roosevelt’s planned Western presidential campaign tour. It showed he would circle completely around Nevada and speak in every surrounding state without ever visiting the Silver State.

Leap forward seven decades. A few days before the 2000 election, the New York Times ran a map showing the travels of the presidential candidates between the national political conventions and November. The intermountain west, including Nevada, was for most of this period a big white blank—the Neutral Zone of presidential politics.

If the electoral vote system is so great for Nevada, why did the candidates avoid it like the plague?

In that 2000 campaign, Al Gore made one visit to Nevada—to Las Vegas, a convention mecca, to accept the endorsement of the Teamsters national convention. George Bush, seeking a good backdrop for an environmental speech, also made one visit. He came inside the state line just a few miles to speak at Lake Tahoe—and never mentioned Nevada’s biggest environmental issue, Yucca Mountain.

But wait—since then, presidential candidates have begun visiting Nevada more frequently. So frequently, in fact, that the state is getting almost as spoiled by presidential candidate visits as New Hampshire. What happened?

The first thing was that Nevada became one of the first four presidential nominating events—the Nevada caucuses, which brought candidates running.

The second thing was that the polarization of presidential politics has locked up most states early and only a few states are still up for grabs during the autumn campaign. Nevada is one of them.

It’s not the Electoral College that has given Nevada influence lately. It’s that it’s a swing state that’s still gettable right up until Election Day. Only swing states, balanced between Republicans and Democrats, get that kind of attention, no matter their size or number of electors. Of course, the existence of swing states wouldn’t even be an issue if individual votes were counted directly. But even under the current system, when its electors were the only appeal Nevada had, the state couldn’t get arrested.

Most states have discontinued the practice of having voters cast their votes for presidential electors by name rather than for presidential candidates, which was probably a mistake since the old system performed an educational function of informing the voters about the elector system. The last time Nevada listed the elector candidates on the ballot for voters to see was in 1948 when Nevadans elected J.J. Cleary, L.O. Hawkins, and James Riordan, Democratic elector candidates who helped appoint Harry Truman and Alben Barkley.

But actually, there is no need for two sets of partisan electors to face off in the November election. A state only needs one set. The founders, remember, envisioned presidential electors who were distinguished citizens detached from partisanship and would protect the public from itself.

Imagine this scenario.

In its higher education system, Nevada has eight institutions—two universities, a state college, four community colleges, and the Desert Research Institute. The Nevada Legislature enacts a law that says on Jan. 1 of each presidential election year, the eight higher education presidents meet and draw lots. There are six white and two black lots. The six presidents who draw white lots are Nevada’s six presidential electors. The other two are alternates.

That is something akin to what the founders had in mind—distinguished citizens, independent of interest groups. With this scenario, Nevada now has its presidential electors. There is no longer a need for Democratic or Republican electors. The electors have thus been pried out of the clutches of the political parties. It is, after all, a conflict of interest for the parties to choose the electors.

Let’s follow the scenario a little further. The November election rolls around. Democrat George Lincoln receives 59 percent of the vote and Republican Abe Washington gets 41 percent. Fifty-nine percent of 6 is 3.54, or four electors. Forty-one percent of 6 is 2.46, or two electors.

It’s proportional. The state could also award electors by districts. Either way, it gets rid of winner-take-all, a system the founders never imagined.

But there’s one additional factor that is not as easily settled. Imagine this:

Candidate Democrat George Lincoln got elected by running on a platform of authorizing police and private citizens to lynch people they think are drug dealers, without trial or due process. This proposal has won him the support of the influential U.S. War Patriots organization.

The presidential electors believe that no man should be above the law, and numerous Lincoln electors switch to Washington, giving him the presidency.

It’s not an agreeable remedy in a democracy for unelected people to override the public’s vote, but that is what the founders had in mind.

States like Nevada have passed laws to make sure it doesn’t work the way it was designed.

In 2000, Nevada voted for George W. Bush. I spoke with one of his Nevada electors, William Raggio. There was a considerable amount of talk about getting rid of the presidential elector system because Bush had lost the election but was winning the appointment. Raggio defended the system and told me he believed we should keep the system the founders created. I replied that we have a presidential elector system, but it’s a different system than the one the founders used.

Ever since then, I’ve wondered, if we cherish the Constitution, and if we value the elector system, why have we neutered the presidential electors so they can’t do their jobs the way the Constitution prescribes? And if we don’t want to use it that way, why do we keep it?