Huston: The Electoral College

December 6, 2016

by Tom Charles Huston

The original concept of the Electoral College was that each state by popular election or through its state legislature would select its best men who would consult among themselves and cast ballots for the two men in the country they deemed most fit to hold the presidency and vice presidency of the United States. That philosophy lasted through one election cycle: the first in 1788. Four years later, party influences were obvious in the balloting for vice president, and by 1796 a few faithless (or distracted) electors failed to vote for John Adam’s running mate, and Thomas Jefferson was elected vice president.

Over the years as our political system evolved with the extension of the voting franchise to most all age-eligible citizens, the notion of independent electors gave way to party electors. While there have been several occasions on which a few electors cast their ballots for candidates who did not win a popular majority in their respective states, it has always been regarded as a renegade maneuver inconsistent with our revised understanding of the role of the college.

With the emergence of the party system and the selection of electors designated by the respective state party organizations, the Electoral College has become the vehicle by which a majority of voters in each of the 50 states and the District of Columbia determine the party candidate who will receive from among the electoral votes allocated to each of the 51 voting jurisdictions the majority necessary for election. A faithless elector sabotages this process by depriving voters of all the votes to which their state is entitled under the Constitution. In the current system, electors should be deemed mere instruments of the electoral majority in their state.

Under our republican system (which is structurally federal in form) there is not a single national popular majority for any federal political purpose. Four hundred thirty-five popular majorities elect the House of Representatives. Fifty popular majorities elect the Senate. And 51 popular majorities elect 538 members of the Electoral College who in turn elect the president and vice president.

Presidents since Andrew Jackson have claimed to be the sole spokesman for “all” the people because they are elected by “all” the people. That is silly. The membership of Congress is also elected by “all” the people. Indeed, on the same day that a majority of the people in states possessing at least 270 electoral votes may be electing a Republican president, a different majority of those same voters may be electing enough Democrats to the Senate and House of Representatives to give that party a Congressional majority. These are the “Two Majorities” – presidential and Congressional – that the eminent political scientist Willmoore Kendall identified 60 years ago in a path-breaking essay in the American Journal of Political Science.

Kendall argued that neither of these majorities has priority over the other and there are sound reasons why a republican people living in a vast continental country might prefer to count votes in various spatial configurations. Among the most obvious of those is a desire to keep the peace, but there is also the practical recognition of the embedded legacy of residual state sovereignty arising from the accident of colonial settlement. Our entire system of governance – its civil and constitutional law, its modes and accommodations of commerce, and its forms of sub-national governmental administration – has as its foundation the federal principle, a principle reflected most markedly in the composition of the Senate of the United States.

The times are ill-suited for revisiting the constitutional logic of the civic infrastructure that supports democratic self-governance in our country, but it would be a useful venture.

Tom Charles Huston, A.B., J.D., an adjunct scholar of the Indiana Policy Review, is a former associate counsel to the president of the United States.



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