Electoral College at Work (or Not) – Constitution Article 2 §1.3

I’m studying Article 2 of the Constitution, which deals with the Executive branch of government. Last week in Section 1, Clause 2 I looked at how electors are selected for the Electoral College. This week is Article 2 §1.3. It’s about what the electors do. Some people would claim that it threatens the very existence of democratic representation today.

Article 2 §1.3

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

As Written

The process described in the text assigns electors the role of counting the votes (presumably the popular vote) in their state or district and conveying the results to the Senate. This seems like a reasonable way to avoid sending thousands of bits of paper to Congress by horseback for counting. But we don’t live with this imagined electoral college. This clause was superceded by the 12^th Amendment. Sorry for making you read that long-ass paragraph that is no longer part of American law.

The Twelfth Amendment

The 12^th Amendment is as long as the original clause. I usually try to stick to the clauses and punt discussion of amendments. So here’s the key change in the 12^th Amendment:

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President,

Electors as Free Agents and Other BS

From Ray v. Blair (at 232):

No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices.

Well, that’s some old bullshit right there. And sounds nothing like the clause I read, in which the electors don’t even actually vote. In 1826, Senator Thomas Hart Benton said it better. He said the Framers intended electors to select the President “according to their own will” without reference to the wishes of the people.

That this invention has failed of its objective in every election is a fact of such universal notoriety, that no one can dispute it. That it ought to have failed is equally uncontestable; for such independence in the electors was wholly incompatible with the safety of the people. [It] was, in fact, a chimerical and impractical idea in any community.

The “ideal” of free agent electors was bullshit because it completely ignored the will of the people. In so far as it has ever actually played out in real life it’s pretty much an embarrassing joke about wasted votes. But the regular practice of party-based electors isn’t much better. Twenty-seven states require electors to vote for their party’s candidate if that candidate gets a majority of the state’s popular vote.

In Conclusion

I’ve done three posts on the Electoral College now, and honestly don’t feel like I understand it very well. Partly that’s because I haven’t delved into Amendment 12 yet. But I also think it’s because the Constitution is only part of the story.

Here’s a web page that breaks out the differences between the popular and electoral votes. I haven’t vetted the source, so use at your own risk. Bustle did a story on it, too. Reading these two web pages, it almost sounds okay. But in 1824, 1876, 1888, 2000, and 2016 the candidate with the most popular votes did not win the election. And I don’t care what contortions you make to justify it, that’s bullshit.

Getting rid of the Electoral College would take a Constitutional Amendment. These days, we tend to think of the Constitution with the same sense of inevitability as the Bible. But the Constitution is supposed to be a working document. We can change things aren’t working. We’ve done it before – 27 times. One of them was an attempt to improve presidential amendments. I think it’s time for a do over.