Will electors step in?
There is a lot of talk going around about presidential electors protecting the country from a Donald Trump presidency.
The founding fathers—they were all men—created the presidential electors system as a back-up to the election. The public would elect, but the electors would have to ratify the public’s election by appointing the new president. If they thought the public had made a mistake by irresponsibly choosing a dangerous character to be president, the electors could choose someone else entirely.
After losing the election, Trump is likely to win the appointment by the electors on Dec. 19. He collected 290 electors while Hillary Clinton got 228, though 1,002,049 more voters—at press time, a figure still growing—supported her. Nevada has six electors, the number of its members of Congress. A case can be made that a candidate like Donald Trump is exactly the reason the founding fathers created the presidential electors.
As it happens, we no longer have presidential electors as the founders created them.
The founders labored hard to prevent “factions”—as political parties were then called—from having a role in the system, but legislatures have long since turned the job of selecting candidates for elector over to the parties. As U.S. Supreme Court Justice Robert Jackson wrote in a 1952 court opinion, “This arrangement miscarried. Electors, although often personally eminent, independent and respectable, officially became voluntary party lackeys and intellectual nonentities.” The loyalty of presidential electors now is first to their parties.
The founders expected that the electoral votes would be among the finest people in the community who would be free to vote any way they wanted. Once again, the legislatures got in the way. Many states now have laws barring electors from voting as they wish. Those laws require electors to vote as the state votes, not as their district votes or they wish to vote.
Then there is the winner-take-all feature of the presidential electors system. This, too, was not the intent of the founders. They thought electors would be chosen by district and would represent their districts. Instead, most states—except for Maine and Nebraska—have winner-take-all systems.
Was Trump the kind of threat the founders envisioned? Only free-agent electors would know that, and we no longer have them. The party hacks who serve as electors now are hardly the figures the founders had in mind to make that decision. In our context, they probably had electors in mind like James Michener, Lee Iacocca, Boone Pickens, Michael DeBakey, Alan Shepherd, Frank Lloyd Wright.
Constitutional convention delegate Elbridge Gerry provided the only specific when he said, “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 [the public] into any appointment. … [S]uch a society of men existed in the order of the Cincinnati.” The Society of the Cincinnati was a veteran’s group with considerable influence, but that doesn’t help us much.
No Democrat has ever become president after losing the election but winning appointment. Rather, only Democrats have been victims of electoral appointments. Democrats won election four times and their opponents—John Quincy Adams, Rutherford Hayes, Benjamin Harrison, George Bush—were appointed president instead. Now a fifth occasion is impending.
In other words, the Democrats had plenty of opportunities to remedy the current version of the presidential electors system that the founders never envisioned. In 2009, the Democrats had huge, historic majorities in Congress only eight years after Al Gore won the election and George W. Bush won the appointment as president. Democrats did nothing. It’s happening again because the Democrats let it happen again.