Bringing the Elec­toral Col­lege in line with re­al­ity

Baltimore Sun - - COMMENTARY - By Syl So­bel Syl So­bel is an at­tor­ney and the au­thor of chil­dren’s books on U.S. his­tory and gov­ern­ment, in­clud­ing “Pres­i­den­tial Elec­tions & Other Cool Facts” and “The U.S. Con­sti­tu­tion and You.” His web­site is www.syl­so­

Like much of the Con­sti­tu­tion, the Elec­toral Col­lege emerged as a com­pro­mise to ad­dress spe­cific con­cerns raised by the del­e­gates at the con­sti­tu­tional con­ven­tion of 1787.

As au­thor David Ste­wart ob­serves in “The Sum­mer of 1787: The Men Who In­vented the Con­sti­tu­tion,” no is­sue gave the del­e­gates more dif­fi­culty than how to choose the pres­i­dent. Nu­mer­ous plans were of­fered, some of them pre­pos­ter­ous — in­clud­ing one that sug­gested di­vid­ing the coun­try into three re­gions with one ex­ec­u­tive for each re­gion, who to­gether would gov­ern as a three-per­son ex­ec­u­tive com­mit­tee. Ba­si­cally the plans boiled down into one of two al­ter­na­tives: Ei­ther Con­gress se­lect the pres­i­dent, or the peo­ple elect the pres­i­dent.

The prob­lem with Con­gress choos­ing the pres­i­dent, many del­e­gates thought, was that the pres­i­dent could be­come be­holden to the leg­is­la­ture and pan­der to Con­gress to get and keep the job. Con­gress pick­ing the pres­i­dent was con­trary to the prin­ci­ple of sep­a­ra­tion of pow­ers that un­der­girds the con­sti­tu­tional struc­ture.

As to the peo­ple elect­ing the pres­i­dent, the smaller states didn’t like it. They be­lieved that peo­ple from the larger, more pop­u­lous states would dom­i­nate and elect their own. This was par­tic­u­larly true of the South­ern states, much of whose pop­u­la­tion con­sisted of slaves, who were not per­mit­ted to vote.

More­over, many of the del­e­gates sim­ply did not trust the peo­ple. This was not just aris­to­cratic snob­bery. Re­mem­ber, this was a time of no in­ter­net, TV, ra­dio and few news­pa­pers. Many peo­ple couldn’t read. The av­er­age per­son in a large, spread out coun­try did not have ac­cess to in­for­ma­tion to iden­tify po­ten­tial can­di­dates.

There were also no po­lit­i­cal par­ties at that time. Vot­ers would not sim­ply choose be­tween can­di­dates se­lected by one party or an­other, as we do today. The founders were en­vi­sion­ing a se­lec­tion process that in­volved a vir­tu­ally un­lim­ited sup­ply of can­di­dates.

Even­tu­ally, af­ter much wran­gling, the con­ven­tion sent the ques­tion of pres­i­den­tial se­lec­tion and other un­re­solved is­sues to the won­der­fully named Com­mit­tee on Post­poned Parts. At some point dur­ing the com­mit­tee’s con­sid­er­a­tion, the idea of an elec­tor sys­tem, orig­i­nally pro­posed by James Wil­son of Penn­syl­va­nia, was re­vived. The con­ven­tion had con­sid­ered the plan ear­lier, but got hung up on who would choose the elec­tors and how.

The com­mit­tee, how­ever, crafted a com­pro­mise that re­sponded to the con­cerns raised dur­ing ear­lier de­lib­er­a­tions. Here is how it went:

Elec­tors would choose the pres­i­dent, and those elec­tors could not be mem­bers of Con­gress or hold any other fed­eral gov­ern­ment of­fice. That ad­dressed the con­cern about un­due con­gres­sional in­flu­ence.

The num­ber of elec­tors from each state would be al­lo­cated ac­cord­ing to the num­ber of sen­a­tors and mem­bers of the House from each state. That gave small states a lit­tle ex­tra clout and sat­is­fied the slave states, be­cause un­der the “three-fifths com­pro­mise” slaves would count par­tially in de­ter­min­ing the num­ber of a state’s rep­re­sen­ta­tives in the House.

Each state leg­is­la­ture would set its own rules for how to pick the elec­tors. That punted the is­sue of choos­ing the elec­tors to the states, so that the del­e­gates at the con­ven­tion wouldn’t have to deal with it, and ap­pealed to peo­ple who thought the new con­sti­tu­tion was tak­ing too much power away from the states.

The elec­tors would vote for two peo­ple. The one with the most votes would be pres­i­dent if the num­ber of votes was a ma­jor­ity, the one with the next most votes would be vice pres­i­dent. If no one got a ma­jor­ity, Con­gress would choose. (There was some floor de­bate over whether the Se­nate, the House or both would de­cide. The con­ven­tion made an­other com­pro­mise — the House would choose the pres­i­dent, the Se­nate would choose the vice pres­i­dent; each state del­e­ga­tion got one vote.)

As the found­ing fa­thers saw it, the elec­tors would serve as “an assem­bly of wise men and learned el­ders.” So how has that worked out? Well, noth­ing like the founders planned. The founders had not an­tic­i­pated po­lit­i­cal par­ties or their over­rid­ing in­flu­ence on the elec­tion process. They had not an­tic­i­pated that po­lit­i­cal par­ties would choose the elec­tors in each state. They thought ei­ther the state leg­is­la­tures or the peo­ple would. They had not an­tic­i­pated a lengthy pri­mary process in which nu­mer­ous po­ten­tial can­di­dates would be vet­ted through nu­mer­ous in­for­ma­tion sources and de­bates un­til only one can­di­date emerged for each party.

Most im­por­tantly, the found­ing fa­thers thought the elec­tors would be act­ing in­de­pen­dently — “wise” and “learned” — and not as rub­ber stamps of the pop­u­lar vote in their re­spec­tive states.

Times have changed since the Elec­toral Col­lege was es­tab­lished. In­for­ma­tion on the can­di­dates is plen­ti­ful, and pop­u­lar elec­tions are now more ac­cepted than they were in the 1700s. If we re­ally want to ob­serve the founders’ orig­i­nal in­tent, then let the elec­tors choose the pres­i­dent on their own. Other­wise, let’s amend the Elec­toral Col­lege to re­flect the cur­rent re­al­i­ties of the pres­i­den­tial elec­tion process and of our form of democ­racy.

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