The Electoral College on December 19 elected Donald Trump President with only modest “faithless” votes for candidates who did not run on November 8. Before the vote, there were claims that the electoral college in voting for the candidates selected by the public, was not fulfilling Alexander Hamilton’s vision set out in Federalist #68. This year, those claims were an attempt to subvert the election, and did not reflect two centuries of constitutional evolution. But could that constitutional evolution have gone in a different direction?
In Federalist #68, published on March 14, 1788, Hamilton claimed that the electoral college was “almost the only part of the system of any consequence that has escaped without severe censure” and that because Electoral College members exercise their judgement, “the process of election affords a moral certainty, that the office of President will never fall to the lot of a man who is not in an eminent degree endowed with the requisite qualifications.”
Partisans will complain that Hamilton’s prophesy has been falsified this year (and indeed on many occasions in the past – think of Franklin Pearce and weep!) Yet, whatever your view of this year’s result, the system as currently constituted offers no defense against the unqualified – and that’s not surprising, because for almost 200 years it has not worked as Hamilton intended.
In 1788, Hamilton did not envisage the rise of parties, he certainly never foresaw primaries, he expected only a few states to select electors by popular vote, and he never envisaged that the Electoral College would become a mere rubber stamp on a system decided by statewide (but not nationwide) popular vote.
In designing the electoral college, Hamilton, a Whig in British terms like almost all Americans, was strongly influenced by the Whig leader Edmund Burke’s view, expressed to the electors of Bristol in 1774 and already well-known, that: “Your Representative owes you, not his industry only, but his judgement, and he betrays instead of serving you if he sacrifices it to your opinion.” Hamilton’s Electoral College, in other words, was expected to exercise its judgement when choosing a President, thereby ruling out the unqualified, rather than simply recording the arithmetical results of the polls in the electors’ states.
The transition from a Burkean electoral college, with electors exercising their independent judgement, to the current system where they merely ratify the popular vote in their state, was not explicitly designed by anybody; it was the result of several political changes that were instituted for their own sake, without considering whether the system was thereby irrevocably changed.
From the 1796 and 1800 elections, parties selected candidates to represent them and electors to vote for the candidates, not to exercise independent judgement as had been the case in 1788-89 and 1792. From 1804, after the Jefferson-Burr stalemate of 1800, Vice Presidential candidates were selected on a “ticket” with the Presidential candidate, and not elected separately. From 1828, almost all state electors were selected by popular vote, for which the candidates competed directly, rather than by state legislatures or other means.
From 1832, candidates were selected by national party nominating conventions, in which delegates played a Burkean role, albeit subject to direction by state party leaders. To an increasing degree from 1912, party convention delegates were selected by primaries. Since 1972, the primaries have governed the choice of presidential candidate, ending the Burkean nature of nominating conventions as well as of the Electoral College.
The slide away from a Burkean Electoral College has thus been progressive and unplanned. It is thus worth thinking about whether that change could be reversed, and what would be the effect of doing so. Provided the electors were democratically elected, a Burkean electoral college system could still be completely democratic.
To make the electoral college Burkean, you would have to have direct elections for electors, either on a congressional district basis, or in groups of no more than say 6 districts. Even though the states would remain responsible for each election, you could not have entire states of the size of California voting as a bloc; voters would have no way of knowing anything about the 55 electors so selected. The elections for electors would take place as now, on a Tuesday in early November every four years.
British and U.S. Congressional elections operate on a unitary-constituency basis, which tends to lead to majority governments and strong parties, preferable for a parliament/Congress. For the Electoral College, the opposite preference would apply; it would be more important to gain representation for all shades of opinion, rather than to ensure a party majority. Thus, in larger states six-member constituencies with a single transferable vote would ensure maximum proportionality and adequate membership for minority opinion shades such as Greens and libertarians.
With six-member constituencies and transferable voting, there would be little scope for gerrymandering even though the boundaries would be set by the decennial redistricting process used for Congress. Politically lopsided areas would be fully represented by electing five or six members of their favored party. Of course, the major political parties would sponsor candidates, but even in a heavily one-party area such as New York City, the San Francisco Bay area, or the Dallas/Fort Worth area you would often find the sixth placed Democrat or Republican being beaten out by a libertarian or a Green.
National legislation would be required to ensure that this system was adopted uniformly and the large states were prevented from voting as a bloc; thus Congress would have to propose a Burkean Electoral College Act, and a sitting President would have to sign it.
Presidential candidates would campaign as now, but there would be little purpose in securing an official party nomination, since candidates who did not receive such a nomination would still be free to campaign among potential electors who were closer to their views. Thus in 2016 you might have seen electors chosen who were pledged to Ted Cruz, John Kasich, Marco Rubio, Bernie Sanders and Joe Biden, as well as those pledged to Donald Trump and Hillary Clinton. You would also have seen a few electors chosen who preferred Gary Johnson, Jill Stein, or Ron or Rand Paul – the field would be much more open.
Electors would campaign individually, some pledging themselves to vote for particular candidates while others simply indicated the types of candidates they favored, without a direct pledge. In some districts, you might find electoral candidates running who were pledged to favor a particular interest – “the farmers’ friend” or “the coal-miners’ friend.” The campaigns to choose electors would be similar to the biennial elections for the House of Representatives, with a relatively concentrated election period from Labor Day to Election Day and heavily local rather than national campaigning.
Once the electors had been chosen, they would meet as a single Electoral College, ideally in Philadelphia where the Constitution was drafted, and would then ballot for President, continuing to vote on multiple ballots until a Presidential candidate received a simple majority of 269 votes. The Electoral College meeting would operate like a 19th Century party convention, albeit a rather small one with only 538 participants. Once the President had been selected the electors would disperse and would have no further duties, as now. To maintain the integrity of the voting, it would probably be best to hold the Electoral College meeting in secret, like the College of Cardinals meeting to elect a Pope. Naturally, deals would be done to secure a majority, but those deals should take place among the Electors, without outside participation.
Since the electors for the Burkean Electoral College would campaign individually, with maximum local attention to their individual campaigns, they would not simply be ciphers. In the Electoral College meeting, they would exercise their individual judgements in the proper Burkean manner. Thus, you would have returned the Electoral College system to its proper Hamiltonian roots, reversing the alterations of the past 200 years. As Hamilton claimed, with 538 individual electors, each of them a substantial political figure, you would be very likely to root out any possibility of an unqualified President.
If such a system had been in operation in 2016, it is likely that neither Donald Trump nor Hillary Clinton would have been elected President. Donald Trump would not meet the approval of these Burkean electors, because of his lack of political experience, even though his populist views might well appeal to many of them. Conversely, Hillary Clinton is too divisive and uncharismatic a figure to appeal to electors who would be chosen locally, not by centrally organized parties in Washington.
Instead, it is likely that a well-liked figure with some Trumpean populism, some political experience and moderate views would have been selected – a John Kasich or Joe Biden. For those who think that would be preferable, and that George W. Bush might also have missed out – locally chosen electors would not have gone for dynasts – I would point out that Ronald Reagan would also have had difficulty in 1980. An Electoral College in that GOP-leaning year would probably have gone for the moderate and trusted Gerald Ford for a second non-consecutive term.
It is perfectly possible to move to a Burkean Electoral College, and in some respects it may be attractive. However, it would require a complete re-design of our current system, and might not on average produce better results.
(The Bear’s Lair is a weekly column that is intended to appear each Monday, an appropriately gloomy day of the week. Its rationale is that the proportion of “sell” recommendations put out by Wall Street houses remains far below that of “buy” recommendations. Accordingly, investors have an excess of positive information and very little negative information. The column thus takes the ursine view of life and the market, in the hope that it may be usefully different from what investors see elsewhere.)