THE ELECTORAL COLLEGE & THE CONSTITUTION

 In 1787, at the conclusion of the Constitutional Convention, a large crowd of anxious citizens waited outside.  Some delegates to the convention, like Alexander Hamilton, had advocated a strong central government along the lines of the British monarchy with its House of Lords and House of Commons.  So there was a concern that the rights of the States might be trampled by exchanging one British-style government for another.

One woman shouted out to Benjamin Franklin as he exited, “Well, Doctor, what have we got, a republic or a monarchy?”

Franklin replied: “A republic, if you can keep it.” 

A “republic” was seen by the Founding Fathers as the highest form of government in which the rights of the common man are defended and each citizen, each region, is well-represented by fellow citizens whom they elected to public office.  

The fact that the word “democracy” doesn’t appear in the Constitution does not disparage our democratic principles. 

In fact, the first two political parties in this country called themselves the Federalists, who wanted more decision-making power in the hands of the national government, and the Republicans, many of whose members referred to themselves as Democratic-Republicans.

The distinction the Founders made was best summed up by James Madison, writing in The Federalist Papers: “In a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents.”

He went on to say, “It is essential to such a government that it be derived from the great body of the society.”

A direct democracy might – might – work in a town hall meeting of 100 or 200 people from the same small town.  Although, if you have ever seen the carnage and carryings-on in such meetings, where everyone insists on getting time to speak their mind, you might also look to find some better way to govern even so small an enterprise.  Multiply that group size by a thousand or a million and you can see why the Founders decided to use the term “republic” – a representative democratic republic -- for our form of government.

The result is that we elect Senators, Representatives and Presidents to represent the interests of our state’s workers, resources, needs and contributions on our behalf.

Which brings us to the Electoral College.

The Electoral College is also charged with representing their individual states with one slight change – since they are there to represent the results of their state’s votes for President, the electors are selected by the winning party of that state.  That is, whichever party fielded the candidate who won the popular vote in their state selects the electors who are charged with voting in accord with the will of the people in their state.  When we vote for the President and Vice-President, we the people are effectively voting for the electors, as well.

(There are two exceptions to this: Nebraska and Maine split their votes by Congressional district.)

Every time there is a disparity between the results of the state-by-state popular elections and the counting or recounting of the popular vote nationally, there are those who advocate for majority rule.  But that is exactly what the Founding Fathers wanted to avoid!

Since California is the most populous state, it already carries the most Electoral College Votes.  Were we to look only at total national voting, states with large urban populations would skew the results and less-populous regions find themselves at the mercy of majority dictate.

That’s not the way the laws of our nation were conceived and written. 

Article II, Section 1 of the Constitution does not specifically prevent an Elector from voting his or her conscience.  It simply states “Each State shall appoint, in such Manner as the Legislature thereof may direct…” their electors.  All within the bounds of the law.

The framers of the Constitution did not discuss what might happen if there were a “faithless elector” who takes it upon himself to ignore the will of the people in the state he represents. Such a thing would make a mockery of the whole idea of representative democracy. 

States can and have stripped electors who fail to honor that pledge of loyalty.  They have fined them and I believe at least once jailed them.  The people of the each state have spoken.  The elector is there to honor the will of the people they represent.

In 1952, the Supreme Court even interpreted the intent of the Constitution as it regards faithless electors, with the decision that electors only act “by authority of the state” they represent.  The Court further stated that such electors constituted a “fraudulent invasion.”  Electors are agents of the will of the people, not independent actors.

None of this will likely dissuade grumbling from whichever party or parties lose to the express will of the greatest number of states if their candidate received a single popular vote more than the actual winning candidate. 

Representative democracy – republicanism – ensures that no simple majority gets to dictate “my way or the highway.”  Farming was once the primary occupation in America; that didn’t mean farmers could place a demagogue in power concerned only with farmers’ welfare.  

Wyoming may have fewer people than California, but does that mean its interests should be ignored at the national level?  Of course not.  Especially since we are all intertwined.  Farmers, miners, software engineers, bureaucrats; we all derive something from somewhere else in this great country.

So – could it happen that an elector ignores his oath and votes contrary to the way his state’s citizens voted?  It could.  Many of the electors are politicians or political appointees and many career politicians fail to see the complexity of the American voter. 

They live insular lives and either really are members of an elite that seldom gets out into the world the rest of us inhabit -- or are simply legends in their own mind.  They have become detached and inattentive to the voters who elected them.  They think a pipefitter or carpenter can’t have an intelligent discussion on foreign policy.  In this they are not only wrong, but pathetically prejudiced and uninformed.

Finally -- for those tweeting #NotMyPresident, there is nothing we can say that will sway their unwillingness to accept the results of the current election.  There are two consolations I might offer them:

1.) If you fervently believe the Constitution needs to be changed, change it.  There are 27 amendments to the Constitution.  If you want to make this a majority rules nation rather than a democratic republic you have only to get ¾ of the states to agree.

2.) Whoever wins a presidential election, it’s only from Jan 20th of their first year of service until the 10^th month of their 3^rd year (when they become a lame duck) until you have a chance to replace them.  That’s called democracy within a republic.  Start now instead of whining about yesterday and you may change the outcome.  Even if a President turns out to be as rotten as James Buchanan, take hope – he may be replaced by an Abraham Lincoln, as Buchanan was.  That’s the glory and the resiliency of our republican system.

Tomorrow, the Electoral College will meet and they will once again, as they have for 216 years, affirm the will of all the people, rural and urban, young and old, black, white or polka-dot, recent immigrants with citizenship and Mayflower descendants – Americans one and all. 

United we stand.

(c) 2016 JL Shaefer