Today, we talk about Electoral College reform as if the only options are to keep it or get rid of it.
But what if the Electoral College today looks nothing like the Electoral College that the Founders envisioned?
First, it is important to think about context. At the time the Electoral College was drafted, there were no political parties. And while there were serious debates over everything from whether we would have a central banking system to the powers of the president, one thing almost every Founding Father agreed on what this: we should have a system of checks and balances that helps offset the tendency of power to collect in those who put their special interests above that of the country’s general well being.This is why, in
Federalist Paper No. 68, Alexander Hamilton argued that the People are to vote for electors to represent them in the Electoral College. What they feared was a relatively uninformed populace that would not and could not participate in the deliberative process to the degree that would be required to select the best next leader of the free world.
In describing who these electors should be, Hamilton specifically discussed the importance of them being independent, or “detached” from political affiliations, so that their vote would not be bought or corrupted by a loyalty other than that to their country. Therefore, the Framers believed that democratically-selected electors would be better guardians of our republic than directly selecting our president.
But, nearly 230 years since Hamilton first defined the independent qualifications an elector should have, every single state in the union now sends their electors to the Electoral College not on behalf of the state (aka, the “People”), but on behalf of a political party. Therefore, what we have today are political parties that select our presidential choices. Democracy is only served insofar as the People get to choose among each of the parties’ nominees.
Does the current state of the Electoral College sound “independent” and “detached” from political affiliation to you?
It’s kind of like saying you can go anywhere for dinner as long as it’s McDonald’s or Burger King.
Fact is, political parties, over time, have become powerful engines. Though they are not even mentioned in our constitution, political parties now enjoy the most foundational constitutional protections, like the right to exclude voters from “their” taxpayer-funded primary elections (see e.g., Democratic Party v. Jones). And to prevent electors from acting independently, in Ray v. Blair, 343 US 214, the Supreme Court upheld the ability of political parties to require loyalty pledges. Some states have even gone so far as to make loyalty oaths a part of the state (aka “public”) law!Today, how many voters even know that they never actually vote for president at all? How many people knew that if they voted for Barack Obama in 2008 or 2012, they actually voted for an elector to cast their vote for the candidate that the Democratic Party nominated at their private party convention? How many knew that the same was true for Donald Trump?
When we talk about electoral reform, the Democratic Party, for example, wants to adopt the popular vote. In doing so, the “winner” is the political party that gets the most votes nationwide. The Republicans want us to keep a system where the “winner” is the political party that gets the most electoral votes, by state.
But what about that purpose of the Electoral College? Was it ever designed to pick a “winner” at all? Or was it designed to select independent electors that would deliberate, debate, and then select the next President of the United States.And how can we talk about reforming a system if we don’t even discuss its original purpose and intent?
If we required our election system to actually produce “independent” electors, do you think hundreds of electors, independently elected in each state and without any partisan loyalties, would have ended up selecting either Hillary Clinton OR Donald Trump upon deliberation of what kind of leader would be best for a country handcuffed by hyper-partisanship?
So, we could use some nonpartisan reform, right?
Well guess what?
At least 4 bills have been introduced to send reform in the opposite direction, further disenfranchising voters and electors who choose to remain independent of partisan politics. These bills will, literally, provide punishments for electors who don’t vote for the candidate who received the majority of the popular vote in their state.
The bills vary in the severity of punishment assigned to these so called “faithless electors.” However, all are designed to ensure that electors follow the party line.
As of yet, faithless electors have rarely been punished for casting an independent vote, but the introduction of these new bills is a clear escalation, ramping up the punishment, in some cases, to the level of a "jail felony."