On November 6th, 2012 – two days after the re-election of President Barack Obama – Donald Trump tweeted, “The electoral college is a disaster for democracy.” Four years later, just under a week after winning the presidency in a historic upset, Trump tweeted, “The Electoral College is actually genius in that it brings all states, including the smaller ones, into play. Campaigning is much different!”
In the wake of Trump’s victory, in anticipation of recount efforts in three potentially Electoral College-flipping states, and in advance of the Electoral College vote on December 19th, it is prudent to engage in the sort of constitutional inquiry that Mr. Trump framed in the aforementioned tweets. Those who despair in Hillary Clinton’s loss still find some marginal grain of solace in the reality that the Electors, not the People, choose the President. Yet, their hope is dashed on the modern status quo. The Electoral College has evolved to dwarf the original interests of the founders. That reality is unlikely to change before December 19th. Nonetheless, revisiting Article II §1 cl. 1 of the United States Constitution is a good starting point for determining whether, in fact, the Electoral College is a “disaster for democracy” or “genius,” and what our constitutionally established political institutions could, and should, do about it.
The text of Art. II §1 cl. 1 states that “each state shall appoint…a Number of Electors.” These words have been interpreted to establish what we now know as the “Electoral College”: the meeting of these Electors to vote for the President of the United States. The convention of plebiscite is just that—a convention. The phrase “popular vote” appears nowhere in the Constitution, although the mythologized interpretation of American democracy assumes its existence. §1 cl. 2 provides the framework for states to determine, in their respective state constitutions, how the Electors are chosen: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” This is why, in modern parlance, each state is considered an individual prize by political campaigns; we speak of “winning Florida” and “competing in Virginia” because the Constitution assigns the task of choosing electors to the States. If the Constitution said anything, anywhere, about a popular vote, Mr. Trump’s assessment (“campaigning [would be] much different!”) would be perfectly accurate.
Yet, the media obsesses over the popular vote. On Monday morning, The New York Times covered comments made by the California Secretary of State (and potential 2018 Senate candidate) in response to Trump’s claims that there was widespread voter fraud in California. On Sunday, Reuters reported on Trump’s further claim that voter fraud cost him millions in the popular vote, though Clinton maintains a steady lead of 2 million votes, expected to increase to 2.5 million as votes from California and elsewhere are confirmed. It is important to note, as many reports have, that the President-elect has provided no basis for such extravagant claims. But, his obsession has clearly contributed to the status quo, reinforced by decades of historical precedent, that the popular vote signifies anything at all. According to the Constitution, it does not.
What, then, ties the popular will to the election of our President? Here, it is best to turn to Alexander Hamilton’s words in Federalist No. 68:
“It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men chosen by the people for the special purpose, and at the particular conjuncture. 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 notes how the Founders truly intended for the selection of the President to be one step removed from pure democracy. They, likely accurately, believed that the populace would never be in a position to evaluate the qualifications of any candidate to perform the duties of the presidency. But the Founders wanted to preserve the ideal of pure democracy; they correctly assumed that States would choose popular election as the method of choosing electors.
Why, then, do we assume that the electors will vote for the person who won the state? The answer is threefold: first, and most simply, this has been the status quo since the 1880s. Until then, voters voted for Electors—the Elector’s name appeared on the ballot, not the candidate’s—on good faith that they would make a responsible decision for President of the United States. Only in 1836 did a group of Electors decide en masse to decline support for a party’s nominee, resulting in the Vice Presidential election to be thrown to the Senate for the first and only time in United States history. Second, Electors, naturally, are chosen because they support the candidate for whom they are chosen as an Elector.
But thirdly, and most importantly, is the existence of Faithless Elector laws, which punish state Electors after their vote has been cast for a candidate other than the one for whom they pledged to vote. In twenty-nine states plus the District of Columbia, Faithless Electors can be punished with crimes or misdemeanors, though these laws are rarely enforced. Faithless Elector laws have only been examined by the Supreme Court once, in Ray v. Blair, when Justice Reed, writing for the majority, noted that the Twelfth Amendment does not prohibit state political parties from requiring a pledge from Electors ensuring support for the party’s nominee. Blair, however, acknowledged the “freedom of the Elector under the Constitution, Art. II §1, to vote as he may choose in the Electoral College.” The case was decided purely on the merits—that the pre-voting pledge was constitutional—and did not venture deeper into the territory of ruling on the constitutionality of Faithless Elector laws under Art. II §1. However, Reed’s opinion hints that were such a case to come before the Court, those laws which bound Electors to vote according to anything other than their own conscience could be found unconstitutional.
The Supreme Court has not since heard any challenges to laws which compel Electors to vote according to the will of the state. However, one could make a logical prediction that, given the current electoral climate, the biases of the Roberts Court, and the ideologies thereof, such a challenge would have great success. Liberal-activist justices are likely inclined to seek an end to the Electoral College, and conservative-originalist justices are likely to rule in a manner that respects the text of the Constitution itself. The Constitution’s lack of mention of a popular vote indicates that the point of the Electoral College was to be the body which choses the President of the United States every four years. Hamilton notes that the Electoral College should indeed work according to our modern understanding, but that ultimately, the Electors have a final say. Given this, it would not be outlandish to suggest that Faithless Elector laws are wholly unconstitutional.
Faithless Elector laws themselves have never been challenged in the Supreme Court (Blair challenged only the pledges that state parties required prior to the election).There have been whispers, since Donald Trump’s victory on November 8th, that the electors may exercise their constitutional right to vote against the nominee they were “elected” to vote for. In reality, this theory has little traction; Electors are chosen as Electors because they are either party stalwarts or dedicated supporters of the nominee, and therefore, it is highly unlikely that 38-odd Electors will defect from the Trump Train to vote for Clinton. However, in the event of such a political upheaval, electors from the 29 states (plus DC) that have Faithless Elector laws would be found guilty of misdemeanors. These sentences could be appealed in the federal courts in Article II claims, and those appeals could make their way to the Supreme Court. The implications of this hypothetical present an intriguing dilemma for the constitutional reality in which we live.
Say the Supreme Court were to rule, in a case that we shall call Elector v. State, that Electors cannot be punished for voting against the candidate for whom they original pledged to vote, therefore striking down all Faithless Elector laws in the nation. This would produce a situation incongruent with the status quo, and it would fall to Congress to do any of three things: One, accept the new reality that Electors can vote for whomever they want. Two, create a constitutional amendment which requires Electors to cast their vote for the candidate to whom they are pledged, thus reversing the Supreme Court. Three, abolish the Electoral College altogether via constitutional amendment.
Accepting the new reality of unbound electors would probably cause a great din among the masses. Amid claims of a “rigged system” and rejections of the “Washington elite,” the optics of reviving a constitutional system that acts as a bulwark against direct democracy are not positive. Reinforced by a media often set in its ways (evidenced by the abhorrently inaccurate Electoral College map used election cycle after election cycle), Americans typically do not warm to fundamental shocks to the system. The second option seems to come closest to maintaining the status quo, but it calls into question whether a paralyzed Congress can muster the support to pass a constitutional amendment. Moreover, GOP-controlled state legislatures are unlikely to ratify such an amendment.
The third option is equally unlikely for the same reasons as the second. However, it would present the best way to reconcile the American obsession with status quo and constitutional realities in our hypothetical scenario. Elector v. State would have robbed the Electoral College of its character as, generally, executing the will of the people—a character that is consistent with Hamilton’s vision in Federalist 68. The decision would have removed the pretense that electors must vote for the candidate to whom they are pledged. The popular will would be completely insulated from the election of the President. So, were Congress to desire to preserve the popular will in a post Elector v. State world, abolishing the Electoral College altogether would seem to be the way to do it.
We return to the bleak wasteland of December 2016. “Elector” has not worked up the courage to become known to the nation, so we must accept the likely reality that on December 19th, the Electoral College will elect Donald Trump the 45th President of the United States. Hamilton will roll in his grave, deep under Trinity Church, calling out to remind us that “the process for election affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications” and that “the true test of good government is its aptitude and tendency to produce a good administration.” As Hillary Clinton’s lead climbs in the popular vote count (a constitutionally irrelevant statistic), the nation must ask itself if the status quo is still tenable.
Several states have already acknowledged this by codifying the National Popular Vote Interstate Compact, a law which would “guarantee the Presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia.” It accomplishes this by having the States work within the parameters of the federal Constitution, specifically Art. II §1, cl. 3’s call for states to determine how their electors are chosen. When passed in each state, the Compact, codified as the National Popular Vote Bill, sets up a system triggered by its passage in any combination of states whose electoral vote total numbers 270. The system, once put into effect, would mandate that the State’s electoral votes be automatically assigned to the candidate that won the popular vote. The beauty is that it entirely sidesteps the Congressional amendment procedures which would make any other hypothetical problem unworkable. Eleven jurisdictions, totaling 165 electoral votes, have enacted the law thus far.
The Compact will not be ratified quickly enough to come into effect before the Electoral College meets to elect Donald Trump. Nor is it likely that Elector v. State will work its way to the Supreme Court in time to affect the outcome on December 19th. Nonetheless, our constitutional democracy must find a way to repair the gap between the provisions of the constitution and the status quo; right now, the Constitution says one thing very explicitly, but the nation’s focus is on something else entirely. As Hillary Clinton continues to amass what is the largest popular vote margin of a losing candidate in history, these questions have never been more relevant. Only time will tell if the Electoral College proves to be the “disaster” that our President-elect predicts.