Electoral gamble

Democrats risk that it won’t happen again

In 1876, an Electoral Commission created by Congress (shown here) chose Republican Rutherford Hayes over Democrat Samuel Tilden, who had won both the popular and electoral votes.

In 1876, an Electoral Commission created by Congress (shown here) chose Republican Rutherford Hayes over Democrat Samuel Tilden, who had won both the popular and electoral votes.

Presidential electors were invented by the founders to prevent the voters from making an unsuitable choice for president. In 2017, instead of preventing the election of a demagogic, racist, lying, admitted sexual predator, the presidential electors appointed him president after he lost the election. The founders’ protective feature of the elector system failed.

It failed because of alterations politicians have made in the system the founders designed. The founders invented one system. We now use a different system, one designed by state legislatures to subvert the founders’ design. Consider the following such alterations, in italics.

As the founders made it, voters elect but electors appoint. It is a power that has been used five times, never for the reasons intended by the founders.

A “faithless elector” today is usually one who does not vote to appoint in accordance with his or her political party. The founders did not want electors to represent political parties. But the political parties have used their lawmaking power at the state level to take control of presidential electors, who are now nominated at state party conventions.

“Faithless electors” who do not vote as their political party requires is a misnomer, because electors were created by the founders precisely to override the public’s vote if they felt it necessary. They cannot do that if they are bound by political party pledges or state law to a specific outcome. Nevada’s secretaries of state have claimed the right to remove electors if they fail to vote in concert with the public vote, while other states do not interfere with that legal process. The permissibility of displacing an elector has never been tested in the courts. The closest is a case on whether political parties can require a sworn pledge by electors to vote for the party candidate (the U.S. Supreme said it could), but not on whether the electors are free to vote as they want or whether states can bind them. “Certainly under that [original] plan no state law could control the elector in performance of his federal duty,” U.S. Supreme Court Justice Robert Jackson wrote. Significantly, a Nevada state law (Nevada Revised Statute 298.080) requiring presidential electors to “proceed conformably to the Constitution of the United States and the laws of the United States” was repealed in 2013.

As previously noted, the founders made it so voters elect but electors appoint. The electors were to be free, unbound agents who appoint a president and have the power to appoint a different president than the public elects.

The founding generation used versions of proportional voting, not winner-take-all, as we do. The notion that winner-take-all is written into the U.S. Constitution—a notion expressed by the late William Raggio, a 2000 Nevada presidential elector—is not correct. After the constitution was ratified, Kentucky, Maryland, North Carolina, Tennessee and Virginia allocated electors by district, and some other states used versions of districts. Winner-take-all came later, as vote-bait, a way of boosting a state’s attractiveness to candidates, which the founders also frowned upon. “State attachments and state importance have been the bane of this country,” said constitutional convention delegate Gouverneur Morris of Pennsylvania.

Once a few states went winner-take-all, others were forced to follow suit to remain competitive. As James Madison put it, “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 proposed outlawing winner-take-all.

Political leaders in some states support or oppose the elector system (there is no such thing as an electoral “college"—the founders required electors to meet separately and in their own states, not collegially, to prevent cabals and vote-trading) because it benefits or does not benefit their states, though the founders warned against that kind of parochialism. A state government is just an administrative unit.

On Jan. 8, 2009, congressional pages brought the electoral votes from the 2008 election into the U.S. House chamber so they could be counted in a joint session of Congress.

One-party system

When Hillary Clinton won the election and lost the presidency, the Democrats had only themselves to blame.

Every time the vote of the public was overridden by electors, a Democrat was the victim—Andrew Jackson, Samuel Tilden, Grover Cleveland, Al Gore and Hillary Clinton. No other party has every been so treated by the electors, yet Democrats have done little to solve the problem. In 2009, when Democrats took both houses of Congress by historic majorities, they did nothing about electors, though they had lost the presidency to an unelected appointee just eight years earlier.

Donald Trump’s election revived interest in dealing with the problem. According to the National Conference of State Legislatures, “2016 was a year for unexpected events—not least of which was the amount of attention paid to the Electoral College, and that … resulted in a bumper crop of legislation related to it” in 2017.

In 2017, Democrats in the Nevada Legislature—who took majorities in both houses after two years of GOP primacy—considered but rejected a measure under which Nevada would join the Agreement Among the States to Elect the President by National Popular Vote, currently approved by 12 states—four small states, four medium states and four large states. The measure received one hearing and died.

Assembly Democratic floor leader Teresa Benitez Thompson said a 2019 bill drafting request has been submitted dealing with presidential electors. We searched the BDRs for “elector” and “presidential electors” but got no hits.

Thus, the system remains the same, and the Democrats remain vulnerable to losing future appointments.

There is a popular belief that the presidential elector system is good for small states, but Nevada was assiduously ignored by presidential candidates until this century, and now it is not the elector system that attracts them. Under the current polarized political environment, most states are locked up early for one candidate or the other. Nevada, as one of 12 swing states, now gets presidential candidate visits it never got before. That would be true if there were no elector system. As the National Popular Vote website put it, “The only states that received any attention in the 2012 general election campaign for president were states within 3 percent of the national outcome.” The same held true in 2016. Candidates target or ignore states based on how to win, not on their electors.

Interestingly, one of the founders—delegate John Francis Mercer of Maryland—argued that elected officials could enrich themselves, though it is an appointed president—Donald Trump—and members of his family who are allegedly doing so. “Elective governments also necessarily become aristocratic because the rulers, being few, can and will draw emoluments for themselves from the many,” Mercer said. “The governments of America will become aristocracies.”

Trump is being sued by Maryland and D.C. for allegedly violating the Constitution’s “emoluments” clause, which forbids federal officials from accepting gifts or payments for services or labor from U.S. states or foreign states. Maryland and D.C. have been prevailing in court on various issues, but Justice Department officials—who for some reason are representing Trump—are trying to slow the case to a crawl with a flurry of procedural motions.

In the first 18 years of this century, appointed presidents have served during 10 of them. How healthy can it be for a democracy to be led so often by presidents the public rejected? Ω