Friday, November 4, 2016

Presidential Electors Are Supposed to Be Representative of the States and the People

A brief study of the history of the Electoral College makes it apparent how far the process of the selection of the president of the United States has changed from the vision of the Framers of the Constitution and the practices of the early years of the Republic and helps to appreciate better its purpose.

The Electoral College was inspired by the College of Cardinals, which elects the Pope.  Charles Carroll of Carrollton, the only Catholic signer of the Declaration of Independence, is credited with its creation.  He had authored a distinctive provision in Maryland’s first Constitution in 1776 that established a body of popularly elected electors who selected the state’s senators.  At the Constitutional Convention in 1787, a provision based on Maryland’s was adapted as the basis of the constitutional method for the selection of the president.  A key difference between the two, out of respect for state sovereignty, under the constitutional principle of federalism, is that the electors do not meet as a whole body, but separately in each state and the District of Columbia.  The words “Electoral College” do not appear in the Constitution as a name for this institution, as the presidential elections are the collective work of 51 individual bodies.

Because of current practices regarding the selection of the president, it is commonly believed, at least by those who recognize that electoral votes are more than a kind of point-scoring system that evens out the weight of the states, that the presidential and vice presidential electors (the members of what popularly became known as the Electoral College) serve as a check on the people, which, in practice, has become true.  However, the history of their office reveals the electors were intended more as representative of the people, as well as of the states. 

In creating electors as a method of selecting the president, the Framers chose neither direct popular election, nor election by the Congress, as some of them had favored, but instead established a method that was representative of the people and the states.  Except for the later provision of electors for the District of Columbia, the allocation of these electors matches that of the combined number of members of both chambers of Congress.  The number of representatives in the House is based upon population because they are elected to represent the people, while each state is represented in the Senate by an equal number of senators.  Therefore, the size of the Electoral College is the result of a compromise that, like the Congress, balances population with state equality, in keeping with federalism.  Similarly, the composition of the Electoral College helps prevent domination by the larger states over the smaller ones.  Beyond the composition of the Electoral College, the role of the states in the selection of the president, who presides over the Union of the states, is preserved through the power of state legislatures to choose the electors by whatever means they decide, even if they chose to make the office of elector elective.  

The Framers opposed democracy (direct rule of the people), preferring representative republican government.  The office of member of the House of Representatives was the only constitutional office the Framers established that was necessarily elected popularly, as the president, vice president and senators were not directly elected under the original terms of the Constitution.  Even the office of presidential and vice presidential electors was not necessarily elective, but could be appointive.  Therefore, the only two federal offices established by the Framers that could be elective were both representative in nature.  Appointive electors, like senators, were appointed by state legislatures to be primarily representative of the states while elective electors are more representative of the people.  Nevertheless, in both cases, the electors, like the Congress as a whole, represent both the people and the states.  This dual representation is noticeably conserved in contingency elections, whereby the House elects the president, but votes by state. 

Like any representatives, presidential and vice presidential electors are supposed to exercise their judgment, in good conscience, as to what is in the best interests, not only of the union, but of the states and the people.  As the method of selecting a president is not based primarily on the will of the people, an elector who carries out this duty as a representative is thus not a “faithless” elector, but a faithful one.    

This representative role of the presidential and vice presidential electors can also be observed in the state laws of the early period of the Republic regarding the selection of these electors.  Some state legislatures opted at first to appoint their presidential and vice presidential electors, others to allow them to be popularly elected.  A few even alternated between presidential elections from the elective to the appointive method.  Gradually, all of the states adopted the method of popular elections, but with South Carolina as the last holdout, the first presidential election in which all of the electors were popularly elected was not until 1868.  For extraordinary reasons, there have been subsequent occasions when electors have been appointed.  The states retain the power to set aside the election of the electors, even after they have been elected, and appoint them instead.  Even though the states exercise their discretion to allow the people to elect the electors to represent them, it is important to remember that this representation occurs only through the power of the states.

In the Federal period, those electors who were popularly chosen were elected directly by the people,   unlike the current practice, whereby the voters elect them indirectly by casting ballots for presidential and vice presidential candidates them that are counted for an unnamed slate of electors who are nominated by the presidential candidates.  In some states currently, it is not even mentioned on the ballot that the election is only for the electors nominated by these candidates, which misleads people even more to believe they are voting directly for president and vice president.  The representative role of the Electoral College was thus clearer in this original method of direct election than today’s method, in which it is popularly believed that the presidential election is essentially a democratic exercise, and that the purpose of the electors is mainly to even out the strength of the states. 

Not only did these early methods of selecting presidential and vice presidential electors emphasize their representative role, but common practices at the time did, as well.  It is critical to understand that in the first several decades of the Republic, no one personally campaigned for president, vice president or for any other political office, including even presidential and vice presidential electors.  The popular belief at the time was that seeking office would be arrogant, as “the office seeks the man, not the man the office.”  The similarity between the Electoral College and the College of Cardinals was more noticeable then, as no one publicly campaigns to be elected Pope and the selection is sometimes a surprise to the public whenever a less relatively known person is selected.  There were no political campaigns in the early Republic in the more modern sense, but informal public debate, which was conducted through conversations among the people and through the exercise of the freedom of the printing press.  It was not until 1840 that anyone personally campaigned for president or vice president of the United States.   

Before the rise of political parties, there were originally no names on ballots for offices; there were only write-in votes.  Later, parties united behind candidates whose names were placed onto election ballots, through changes to election laws.  Similarly, at the Electoral College, there were only write-in votes for president and vice president. 

The rise of political parties also led to a democratizing trend away from the original vision of the Framers for the presidential and vice presidential electors, which has increasingly blurred the distinction between electing the electors and electing the president and vice president.  Making the office of elector elective, instead of appointive, and binding electors nominated by the presidential and vice presidential candidates to vote for those candidates, instead of allowing the electors to be free to exercise their judgment, have weakened the representative role of the Electoral College.  Such democratization helped to mislead the people into believing that presidential elections were primarily supposed to reflect their will because many people perceived that they were voting directly for the candidates for president and vice president whose names appeared on the ballots, instead of only casting ballots for electors.  Others who had at least some awareness of the Electoral College believed they were indirectly electing the president and vice president by voting for the presidential and vice presidential candidates who would then necessarily win the votes of the electors from their states, as the electors were nominated by the presidential candidates and were often bound to vote for them by state law.  However, contrary to common parlance and belief, unless one is an elector or U.S. representative, no one votes for president and vice president.  No presidential ticket receives any “popular votes.” 

As envisioned by the Framers, a person need not personally campaign, be named on any ballot and receive any “popular votes” to be elected president of the United States by members of the Electoral College, who are not themselves necessarily elected or, even if the were, need not to have personally campaigned for office, and whose names need not to have appeared on any ballot.  And someone could be elected president after having received as little as one electoral vote.  

Although the Electoral College is at least recognized nowadays as a check on the popular will, the origin and early history of this institution suggests that the presidential election was never intended to be primarily a democratic exercise, but an exercise in representative republican government.  A restoration of the role of the electors as representatives of the states and the people would not be a usurpation of the will of the people, but a return to the vision of the Framers of the Constitution.  

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