Here are answers to some questions I’ve gotten about the Electoral College since Election Day:
Q. What is the Electoral College?
A. It’s not an educational institution! The term “college” is a typical 18th century latinate usage, based on the Latin word “collegium,” meaning a club or guild. (This another example of why knowledge of Latin is so important to constitutional studies.) The “Electoral College” is a collective phrase for all presidential electors. The “college” never actually meets in one place. To avoid mob behavior and undue special interest influence, the Constitution requires that each state’s electors convene in their state capital and vote there.
Q. Where does the Electoral College get its power?
A. From the American people, acting through the Constitution. This is one of a number of cases in which the Constitution delegates special functions to persons or entities not part of the federal government or not acting in their usual governmental capacities. In addition to delegating presidential election to the Electoral College, the Constitution grants special powers and duties to state legislatures, state governors, conventions, individual houses of Congress, and so forth.
Q. Who chooses the Electoral College members?
A. Each state legislature determines how that state’s electors are chosen. Since about 1860, all state legislatures have delegated the authority to the voters. That could be changed, however. For example, if the Supreme Court had not stopped the Florida “Bush vs. Gore” recount in 2000, the Florida state legislature could have appointed its own electors. Because the Florida legislature was Republican, there really was no uncertainty about how the national election would turn out. The widespread belief that the election results were unknown was partly a product of constitutional and political ignorance, partly media spin, and partly political manipulation.
Q. How is the number of members of the Electoral College calculated?
A. The Constitution specifies that the District of Columbia gets the same number as the smallest state (now three) and that each state gets as many electors as it has both Senators and Representatives.
Q Where did the Electoral College number come from?
A. The District of Columbia received its right to choose electors from the 23th Amendment. The Senator + Representative formula is a survival of early proposals in the Constitutional Convention that the president be elected by Congress.
Q. What is the role of the House of Representatives in presidential elections?
A. If no candidate wins a majority of the electoral vote, the outgoing (lameduck) House chooses the next president from among the top three candidates. In doing so, the House votes by state—that is, each state delegation gets one vote, and a majority of states is necessary to elect. In 2000 (as now) the House was Republican, both per capita and by state delegation—which was another reason the so-called uncertainty that year was illusory.
Q. May the Electoral College vote for anyone they wish?
A. Yes. State laws bind many electors, but the constitutionality of those laws is questionable. Even if they are valid, state laws can’t stop an elector from voting as he wishes. They can only punish him after the fact.
Q. Do you favor adopting direct popular election for the president and vice president?
A. At one time I did, but I’ve been persuaded that direct popular election would be impractical, and probably would increase greatly the chances of election fraud. In close races, it would necessitate a national recount. In 2000, the recount was limited to Florida, but under a popular vote system it would have been national. That could have created uncertainty lasting many months, possibly leading to constitutional crisis.
Q. Any other reasons to keep the Electoral College?
A. Yes. People think the country is divided now—but direct popular election could make the situation much worse. It would encourage regional candidates and encourage national candidates to focus on running up big totals in some regions rather than working to attract truly national support. Such a development could even raise the chances of civil war.
Q. Civil war? Come on! Really?
A. Yes. Under the Electoral College system a purely regional candidate has won only once. That was in 1860. Election of a candidate supported only by one section and widely loathed elsewhere led directly to civil war. (Note: I am NOT saying Lincoln shouldn’t have been elected.)
A. Any other reasons for supporting the Electoral College?
The Electoral College offers another five weeks or so after the popular election in which Americans get a “second look.” If in the interim the presidential candidate dies or becomes incapacitated or new information surfaces that radically change the previously-assumed facts, then the electors may choose someone else.
Q. Who regulates the presidential election and specifically the election of the Electoral College?
A. In recent decades, Congress has adopted various measures to regulate the presidential election. The Supreme Court has upheld congressional regulation of presidential elections, but without serious analysis. From the standpoint of the Constitution, however, those measures are almost certainly unconstitutional. The Constitution and associated history are clear that the election of each state’s presidential electors are regulated by the state legislatures.
Q. What is the practical result of electing a candidate who wins a majority in the Electoral College but not a majority of the popular vote?
A. A candidate may win a majority of the electoral college while winning only a plurality of the popular vote (e.g., in 1992 and 1996) or while failing to win even a plurality (as in 2000 and 2016). Both means the candidate was elected president, but the presidential election provides no popular mandate for any particular program (although accompanying elections for Congress may provide a mandate). This kind of election result means the new president must exercise great political skill during the coming term in office.
You have to qualify those statements if the reason the candidate didn’t win a majority or plurality was because other candidates politically closer to the winner than to the loser siphoned off support from the winner. A particularly dicey situation arises if a major candidate wins a popular plurality only because a third party candidate takes from the runner up (as in 1992).
Q. Currently there is a campaign to convince presidential electors supporting Donald Trump to switch to other candidates. Is that legitimate?
A. It’s technically legal, if that is what you mean. It is profoundly disturbing, however, because it seeks to interject into the Electoral College the kind of stampeding pressures the institution was created to avoid. It is further evidence that we have in our midst a large number of political activists who reject the very premises of American constitutional government.
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