Friday, February 24, 2017

Federalist No. 68, et al, Part IV: Cracks and Corruptions

As last week’s discussion hopefully made clear, the Electoral College that the Framers of the United States Constitution designed in 1787 bears only a superficial resemblance to the Electoral College as it exists today. In the modern era, the function that the Electors fulfill involves little more than a formal ratification of the results of the preceding general election – states award their votes in a winner-take-all fashion, and individual members of the Electoral College are bound by law and custom to vote accordingly. Deliberation, therefore, hardly enters into the process. The President of the United States is chosen by the voters on Election Day in November, and the Electors merely act as a kind of rubber stamp upon convening in December. By comparison, the Electoral College that Alexander Hamilton and his cohorts originally designed was intended to be an active participant in the process of selecting the nation’s chief executive. Once chosen by the people of the various states, the Electors were to meet in their respective capitals and deliberate upon which of the candidates for the highest office in the land appeared to them most qualified. How they ultimately voted was to be left entirely to the discretion of the individual Electors and it would not be until Congress gathered and tallied the submitted votes that a victor could be declared.

While the basic framework that the Framers designed remains largely intact – the Electors are still chosen by the people, they still convene in their respective state capitals, and a successful candidate for President still requires a majority of their total votes – the essence of their role has been almost completely altered. From having complete discretion, they now seem to have none at all. Intended to serve as an essential intermediate step between the American people and their chief executive, the Electoral College presently retains all the significance of an empty ceremony whose practitioners have long since forgotten its purpose. The presence of such a complex appendage of government which seems to fulfill no useful function understandably raises a number of questions. Why does the Electoral College continue to exist? If the outcome of the Elector’s single task is a foregone conclusion, why not just award Electoral Votes directly on Election Day and be done with it? These are both valid inquiries, and met by any number of answers depending on one’s ideological proclivities. Rather than delve into what should happen, however, let us concern ourselves for the moment with what has happened. To that end, let us try instead to answer the question of how the Electoral College was transformed from the system that Alexander Hamilton described in Federalist No. 68 to the one which presently governs the quadrennial election of the President of the United States.

Generally speaking, the metamorphosis of the Electoral College from that which the Framers intended to that which exists today can be chalked up to a flaw inherent in the system at its origin and a mistaken assumption on the part of its creators. The former will be dealt with first, and is comprised of a vital omission on the part of the Framers. Rather than include any specific regulations within the text of the Constitution that would define precisely how the members of the Electoral College were to be selected, its designers left the manner of their appointment completely to the discretion of the various state governments. This meant, in practice, that individual states can decide for themselves whether their citizens chose Electors based on a set of pre-defined districts – as they do during elections for the House of Representatives – or on a state-wide basis, or even through the medium of the state legislatures – i.e. the voters choose state representatives who then appoint that state’s Electors. Without knowing precisely what motivated the architects of the Electoral College to allow for such diverse methods of selection, it can at least be said with some degree of certainty that the consequences of this decision have been, for better or worse, quite considerable.

  The presence of George Washington as the nation’s first President undeniably served as a steadying influence upon the increasingly partisan atmosphere of American political culture in the 1790s. His election victories in 1789 and 1792 were unanimous, and his cabinet included prominent members of several conflicting intellectual circles. In truth, however, his influence only masked the weaknesses inherent in certain aspects of government under the Constitution. Specifically, it was the inability of key institutions to function as intended in the face of partisan politics – stemming from the Framer’s horror of factionalism and their attendant refusal to plan for its continued presence – which Washington’s status as a nationally beloved figure rendered essentially moot. That is, until his refusal to stand for election in 1796 essentially made possible the nation’s first competitive presidential election. Without the great hero of the Revolution serving to unite the various conflicting factions and interests, the process by which the American people selected their chief executive – a process which up to that point hadn’t done much more than confirm the near-universal popularity of George Washington – would finally and truly be put through its paces. Thus began the erosion of the Electoral College that the Framers envisioned.

  The reason that the sudden loss of a nationally unifying figure augured poorly for the Electoral College in 1796 had everything to do with the aforementioned inability of the processes designed by the Framers to weather the pressures of organized partisanship. When tasked with giving official sanction to the tremendous regard American felt for the former Commander-in-Chief of the Continental Army, it made little difference that the states were wholly responsible for determining how their Electors were to be chosen. Whether they settled upon the statewide winner-take-all method (Pennsylvania and Maryland), allocated them by district (Virginia and Delaware), or allowed their legislatures to make the appointments (Connecticut, New Jersey, Georgia, and South Carolina), there was no competition in 1789 or 1792, and no difference in outcome. Once the Electors were actually required to make a choice, however, the differences between the states’ methods of selection – previously little more than an aesthetic distinction – took on a highly strategic dimension. The rhetoric and results of the Election of 1796 and the Election of 1800 both served to contribute to the emergence of this increasingly tactical facet of American politics, both in terms of institutional structures and recognized norms.

While the very idea of political parties continued to rankle those among the Founding Generation, whose political ideals were rooted in concepts of self-sacrifice, impartiality, and noblesse oblige – i.e. that those with talent and wealth had an obligation to serve their community – the successive outcomes of presidential votes in 1796 and 1800 generated enough displeasure to begin shaping a vital consensus in favor of permanent factionalism. This acute displeasured stemmed in large part from the fact that the method by which the Electoral College functioned was designed to operate within a distinctly non-partisan political context. By the terms of the Constitution, as ratified and adopted in 1788, the successful candidate for President was he who managed to amass a majority of the total number of Electoral Votes. The Vice Presidency, meanwhile, was awarded to whoever garnered the second-highest number of votes. In a scenario wherein every candidate for President was an independent, non-partisan political actor, this would seem a reasonable enough outcome. After all, why shouldn’t the person positioned to step into the role of chief executive at a moment’s notice be the person for whom the next largest percentage of the population voted? Well, the obvious answer to that question would seem to be, because the first place finisher and the runner up might not always be in complete agreement. Indeed, they might even be violently opposed – a consequence either of deep-seated philosophical differences or the virulence of campaign rhetoric. If, under these circumstances, the President fell ill and died, the office would then legally pass to someone whose policies and intentions ran wholly counter to those professed by the individual that the majority of Americans had chosen.  

Almost exactly this scenario came to pass in 1796. The Electoral College produced a victory for sitting-Vice President John Adams (a leader of the nascent Federalist Party) and gave the Vice Presidency to former-Secretary of State Thomas Jefferson (one of the guiding lights of the emerging Republican Party). Because the ideologies professed and promoted by these two men were seen to be categorically opposed in certain key policy areas – centralized vs. decentralized government, an economy based on manufacturing vs. agriculture, etc. – the closeness of the vote (seventy-one to sixty-eight for Adams) and the prospect of Jefferson inheriting the office in the event of Adams’ sudden demise produced a heightening of partisan tensions on both sides. The states were certainly not spared the effects of this notable increase in factional discord. Many of them were already possessed of highly factional political cultures – centered on familial associations or regional economic issues – and the cliques and associations therein had quite easily become integrated into the emerging national party system. It also bears remembering that these same increasingly partisan state governments were responsible for setting the terms by which presidential Electors were selected. In consequence, not only were the states an increasingly vital and vibrant part of the nascent partisan status quo in late 1790s America, but they were also far from disinterested in the electoral results that their own legislative choices had produced.

1796, therefore, doubtless served as something of a warning. In order to ensure that a similar outcome wasn’t repeated in 1800, state and national party organizations determined to better coordinate their efforts at setting the ideal conditions for their chosen candidate’s success. Whereas the method of selection for presidential Electors had formerly mattered little to the final outcome, the difference between statewide winner-take-all and voting by district now had the potential to swing an election one way or another. Federalists and Republicans in states from Georgia to Massachusetts consequently began to compete for control of their respective state assemblies with the knowledge that the victor would either gain the ability to alter the laws that governed the appointment of Electors or would be given the opportunity to choose them directly. The New York legislative elections of May, 1800 are a prime example of precisely this kind of high-stakes and highly divisive party competition. Knowing full well that whichever party secured a majority in the state assembly would get to nominate the full slate of Electors in the approaching presidential vote, the local Republicans (led by Aaron Burr) and Federalists (led by Alexander Hamilton) campaigned vigorously – and sometimes viciously – for that mutually coveted prize. The Republicans in particular – at that time a minority in the state legislature – employed a host of innovative vote-getting techniques, from street-corner rallies to door-to-door solicitations, and organized poll-watchers and free transportation for prospective voters when the day of the elections finally arrived.

The result, much to the Federalists’ dismay, was a triumph for their opponents – one which effectively guaranteed a second Republican victory when it came time for the state to appoint its twelve presidential Electors. So distraught were Hamilton and his partisans, and so disastrous appeared the prospect of a victory for Vice-President Jefferson in the general election, that they reacted by appealing to Governor of New York John Jay to aide his fellow Federalists in essentially overthrowing the results. Specifically, Hamilton requested that Jay convene a special session of the outgoing state assembly for the purpose of altering the laws that governed the appointment of Electors. Because this change was to affect the coming general election, it would have robbed the incoming Republican majority of the privilege they and their opponents had each campaigned to possess. Jay, ever a sober and sensible man, declined to consider the request, and the Republican victory stood. In spite of the fact that his eleventh-hour politicking failed, however, Hamilton’s desperation, and the lengths gone to by both parties, stand in evidence of the shifting context in which the Electoral College functioned at the turn of the 19th century.

Whereas the Framers of the Constitution had seemingly intended for the Electoral College to facilitate the elevation of the most capable, responsible, or trustworthy individual to the office of President, the actions of Hamilton, Burr, and their respective partisan followers in the lead-up to the Election of 1800 indicate that a small but extremely important shift in emphasis had begun to take place. No longer, it appeared, were the Electors expected to identify and vote for the best possible candidate as the nation’s next chief executive. Rather, and with growing official sanction, their purpose had become simply to vote for the individual that their party had already identified as the best possible candidate for President. The state laws that governed their selection largely helped to facilitate this end, and strong preferences began to emerge based on which model produced the ideal outcome. Statewide winner-take-all and appointment by legislature were by far the most popular, no doubt because both offered the best prospect for an individual party to wholly dominate their state’s Electoral College delegation. Election by district – that is, Electors being chosen by a popular vote within the congressional district they were to represent – was still held by some among the Founding Generation to be the ideal method even as late as 1800, perhaps because it was the closest to what the Framers had intended when they designed the system. Nevertheless, increasing partisan competition forced even the most overtly principled to bend to the prevailing wind.

Thomas Jefferson, who suffered and succeeded in turn by the actions of the Electoral College, summed up this bind when he wrote in a letter dated to January of 1800 that, “An election by districts would be best, if it could be general; but while 10 states choose either by their legislatures or by a general ticket, it is folly & worse than folly for the other 6 not to do it.” Here, from the mouth of the great ideologue of the American Revolution, is an admission of the strategic sense which he perceived in effectively contributing to the active erosion of the Framer’s original design. Granting that the Sage of Monticello was a far cannier politician than he preferred to appear, there remains something rather tragic in his evident willingness to lay aside what he believed was the best method in favor of that which produced what he understood to be the best outcome. It was this kind of decision making, writ large, which really created the modern Electoral College. State parties in control of state legislatures wrote and rewrote state laws with the aim of benefiting the candidates put forward by their national organizations. Standing on principle carried no tangible reward, and giving in to the ruthlessness of raw electoral math may well have been rewarded with control of the executive branch. Faced with such a choice, in an era of partisan conflict so intense that opponents frequently characterized one another as the harbinger of America’s downfall and destruction, the trend toward disempowering the Electoral College surely seemed all but inescapable.

In spite of these legislative machinations, all intended to ensure that the disaster that was the Election of 1796 never recurred, the Election of 1800 somehow proved more yet troubling than its predecessor. Once the sun finally set upon a campaign season characterized by extreme rancor, invective, and threats of insurrection, the votes were cast, and counted, and the results announced. While managing to avoid electing a President and Vice President of nearly opposite philosophical inclinations, the Electoral College instead succeeded in producing a tie vote. Jefferson, the Republican candidate for President, and the aforementioned Burr, nominated by the same party for the office of Vice President, each enjoyed the support of seventy-three Electors. As per the terms of the Constitution, the election was accordingly thrown to the outgoing House of Representatives. And as both chambers of Congress were at that time controlled by the Federalist Party, the task at hand proved to be a particularly unenviable one for the legislators involved. The Federalist Representatives serving in Congress, whose party had just lost the Presidency, the House, and the Senate, were legally bound to bestow the most powerful office in the whole of the United States upon one of two member of a rival party. There were no alternatives open to them, no grounds to call for a repeat election, and no escaping the fact that the growth of organized partisanship in the America republic had effectively overflowed the institutional limits of its electoral system.

Though the Federalists did ultimately see their way clear to electing Jefferson as the next President of the United States – after much hemming and hawing, conspiratorial murmurings, and another last-minute plea by Alexander Hamilton – the elevation of the Sage of Monticello to the office of chief executive was arguably only the short-term consequence of the Election of 1800. Of greater lasting significance – in terms of what it symbolized as well as its practical effects – was the passage of the Twelfth Amendment to the United States Constitution. Proposed by the Republican members of Congress in the winter of 1803, during their control of both chambers thereof, this document aimed to alter the manner by which the members of the Electoral College cast their votes for President and Vice President. Whereas, per the terms of Article II, Section 1 of the Constitution, the Electors had previously been tasked with submitting two undifferentiated votes – with the winner and runner-up becoming President and Vice President, respectively – the text of the projected amendment drew a clear distinction between a vote for the office of chief executive and a vote for their deputy. Henceforth, once the modification was formally adopted, members of the Electoral College would be required to submit one vote explicitly for the candidate they believed ought to be President, and one vote explicitly for the candidate they believed ought to be Vice President. These votes would be counted separately, and the winners declared separately.

This new system was undeniably tailor-made to work in accordance with the emerging political norms of the contemporary United States. While Article II, Section 1 had been designed with a non-partisan context in mind, the amendment offered by the Republicans in the final weeks of 1803 effectively embraced the existence of formal political parties. So long as the Federalists and Republicans continued, as they had since at least the 1790s, to offer pre-approved electoral “tickets” that packaged together their desired candidates for President and Vice-President, disasters like those witnessed in 1796 and 1800 could quite easily be avoided. Unlike in the case of the former year, Electors would have a mechanism at their disposal for electing their chosen party’s ticket without having to engage in any efforts at long-distance coordination –i.e. Electors in various states agreeing to cast votes for one candidate and withhold them from another. And compared to the incident of the latter year, the mechanism of election would itself differentiate between President and Vice President rather than leave it up to the Electors. Parties would decide who among their membership would stand for election, as had become their custom, and the Electors would simply vote accordingly. Doubtless understood in part as an attempt at streamlining what had become an increasingly complicated and error-prone process, the aforementioned amendment was approved first in the Senate by a vote of twenty-two to ten, and then in the House by a count of eighty-three to forty-two. It was thereafter officially submitted to the states on December 12th, 1803, and by June, 1804 had received the approval of the requisite thirteen. The Election of 1804 was the first conducted under the terms of what was by then formally known as the Twelfth Amendment, and the result was a clean, indisputable victory for sitting-President Thomas Jefferson and his running mate George Clinton.

In spite of this promising turnaround – from two botched elections in a row to a sturdy, incontestable result – the larger implications of the Twelfth Amendment were not merely procedural. Granting that the promotion of a clearer election result augured well for the nation at large, its real significance is arguably located in its symbolic status as a profound admission to the power and influence of party politics. Following its passage, the Constitution could no longer be considered a truly non-partisan document. Accordingly, elections for the presidency of the United States could no longer be thought of as a means of selecting the single individual most qualified to bear the powers and responsibilities of the nation’s highest office. Rather, the terms of the Twelfth Amendment effectively admitted that political parties had to be catered to on nearly the same terms as the American people themselves. And whereas the states had formerly been the chief battlegrounds in the emerging partisan war for control of the presidency, parties had now managed to put their stamp upon the Constitution itself. Republicans and Federalist – and later Whigs, Democrats, and a different group bearing the label of Republicans – would certainly continue to enthusiastically compete for decades to come over control of state legislatures, and the associated power to alter the terms by which presidential Electors were chosen. And different methods thereof would be tried, tested, modified, and dismissed. But following the ratification of the Twelfth Amendment, the path to the presidency was well and truly cleared. The institutional hurdles had been done away with; the parties were in control.

Friday, February 17, 2017

Federalist No. 68, et al, Part III: Time and Space

To pull back for a moment, let us return to the second paragraph of Federalist No. 68. Two points were extracted from that specific passage quite early in the previous entry of this series, both of which were claimed to recur across the length of Hamilton’s essay. The first was drawn from the assertion that the choice of President should reflect “the sense of the People” and yet be committed “to men chosen by the People [.]” Taking this and later corresponding statements in hand, it seemed a reasonable conclusion that the architects of the Electoral College desired that the general population of the United States should have a strong bond with their chief executive while remaining functionally isolated from the process of election. Hopefully the content of last week’s post bore that contention out without reducing anyone to a state of unconsciousness. The second point to be drawn for the aforementioned passage of Federalist No. 68 – that Hamilton’s use of the phrase “for the special purpose, and at that particular conjuncture” to describe the existence of the Electoral College suggested that speed and decisiveness were important factors to its design – was discussed in brief, but then put aside for later discussion.

     Well…

     Of particular note amidst Hamilton’s opening statement within paragraph two of No. 68 was his use of the phrase “pre-established body” to describe what the Electoral College was not. Under the Constitution, and within the context of a Presidential election, the Supreme Court, and the houses of Congress, and the various state legislatures would all constitute pre-established bodies, each with their own responsibilities, traditions, assumptions, and schedules. So constituted, none of these institutions could be depended upon to consistently put aside their interests and choose the best individual from among a field of candidates to become the President of the United States. Each would doubtless be inclined to choose a chief executive favorable to its own agenda, and the American people would lose a potentially invaluable counterweight to the power and influence of the federal legislature, or the judiciary, or the states. This fixation on the inappropriateness of assigning the selection of the chief executive to any permanent institution recurred in the sixth paragraph of No. 68 – the Framers, Hamilton explained, “Have not made the appointment of the President to depend on any pre-existing bodies of men” – to the point that it appears the architects of the Electoral College were particularly concerned with the power of bias, and partisanship, and separating the highest office in the land from either.

Perhaps this speaks to some latent fear on their part of the looming threat of factionalism and its effect on the nation’s nascent political institutions. While at no point did No. 68 claim that Congress or the state legislatures were incompetent or unfit to serve their respective constituencies, the collective experiences of the Framers in national and state politics doubtless made it clear to them that entrenched disagreements and powerful interests were likely an unavoidable element of parliamentary-style government. Accepting this – albeit in some cases grudgingly – the men who designed the Electoral College may have understandably wished to prevent the less-desirable aspects of deliberative government from influencing the process by which the nation chose its chief executive. After all, the President was supposed to represent the American people, and not whatever political compromise managed to limp its way through a special session of Congress. However, because the Framers also did not believe that the general population was well-suited to such a task on its own, and nor did they seem to trust a purely popular vote to produce a truly representative result, a contingent body like the Electoral College likely seemed the only reasonable alternative. While the Electors, within their various state delegations, would operate in a similar fashion to a legislative assembly – electing officers, holding debates, casting votes, etc. – they would theoretically be shielded from the worst aspects of similar representative bodies by the simple fact that they would never be convened long enough for disagreements to become intractable or factions to form. Also, because the final vote of each state delegation would reflect the will of every Elector – that is to say, every vote cast would count towards the various candidates’ totals – and there would only ever be one item on the agenda, there would be no need for Electors to consider anything other than the task immediately before them.    

     Aside from their unfortunate tendency towards factionalism, Hamilton and his cohorts also seemed to believe that the membership of Congress and the state legislatures were made susceptible by their public status and lengthy terms in office to what he described in the fifth paragraph of No. 68 as “Cabal, intrigue, and corruption.” The same passage further identified the foulest form of these noxious influences upon the election of the “Chief Magistracy of the Union” as the, “Desire in foreign powers to gain an improper ascendant in our Councils.” In short, it seemed, the Framers feared that foreign powers would attempt to influence the election of the American President. The logic behind this conjecture would seem fairly straightforward in theory. Legislators were public figures, known to their neighbors and the world at large to personally wield some portion of the power of the state. They were also many of them bound to serve in their public posts for a period of months or years. These two factors – their public possession of power and their continuance in office – made them valuable servants of the public good, and yet also marked them as potential targets for bribery, graft, or the general peddling of influence. As public officials they could be easily located, and the extent of their institutional influence was a matter of record. And as semi-permanent fixtures of government, prospective influencers would have months or years in which to establish quid pro quo relationships with them. It therefore stood to reason that any public servant in the United States was potentially vulnerable to becoming the tool of a particular foreign interest, or body, or individual intent on exerting control over the public affairs of the American republic. Give these same public servants the responsibility for selecting the nation’s chief executive, and the consequence may well have been a President chosen by British, or French, or Spanish intrigue rather than by the American people.

The Electoral College supposedly countered this unpalatable possibility by its aforementioned status as a kind of contingent institution. The Framers, as Hamilton put it in the previously-cited sixth paragraph of No. 68,

Have not made the appointment of the President to depend on any pre-existing bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the People of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment.

While an admission by one of the Framers of the Constitution that the government he had helped create was perhaps endemically susceptible to foreign corruption would seem a rather alarming prospect, Hamilton showed little concern in Federalist No. 68 for the implications thereof. Whether or not the national legislative process or the state governments were being unduly influenced by malevolent foreign entities was seemingly of no consequence. What mattered, apparently, was that the President of the United States – an official possessed of unrivalled power – was elected via a process wholly free of malign alien influences and wholly dependent upon the will of the American people. For this reason, Hamilton explained, Electors were to be chosen by the people, would meet and submit their votes for President as soon as they could, and would then relinquish their offices and return to their private lives. They would have nothing to do with any permanent institution of the federal or state governments, and would thus be isolated from any corruption those bodies might have suffered.

In fairness to Hamilton, he was almost certainly both personally and professionally concerned by the prospect of foreign intriguers gaining any degree of influence over any level of government in the United States of America. Short-sighted though he could often be, and more enamoured with British institutions than many of his countrymen were particularly comfortable with, the 1st Secretary of the Treasury was an ardent nationalist. The ability of the nation that he had helped to forge to chart its own path in the world unimpeded by European or other interference was among his paramount concerns as an economist, legislator, military administrator, and public servant. In consequence, one should not take his evident acceptance, presented in Federalist No. 68, of corruption within certain institutions – his seeming desire to quarantine the problem rather than treat it – wholly at face value. It rather seems likely that Hamilton’s apparent willingness to accept the possibility of foreign influence over certain aspects of government in America was a pragmatic response to what may have been a truly intractable problem.

In light of just how many state and federal legislators, and justices, and magistrates served in office in the United States at any given time, even in the late 18
th century, as well as the practical difficulty of keeping track of who they met with or where their money came from, it was almost certainly impossible to prevent some foreign government or other from gaining a degree of influence over the domestic affairs of the nation. Certainly there were laws that could be put in place, designed to ferret out or neutralize the agents of alien powers, but such measures could only go so far. Global empires like those possessed by the British, the French, and the Spanish were fantastically wealthy, sophisticated, and powerful, and doubtless had a great deal to offer a Senator or state assemblyman willing to aid them in their clandestine efforts. There was only so much any authority or institution in the United States could offer to counter such conspiratorial exertions, and probably the energy spent in pursuit of foreign intrigue was better spent elsewhere. This was perhaps the chief impulse behind Hamilton’s apparent willingness in No. 68 to accept the possibility of foreign taint in some aspects of American government while endeavoring to guard against it in others. A realist as well as a nationalist, he very likely understood that preserving the integrity of the executive branch of the federal government – embodied by the office of President – was actually possible to achieve in a way that attempting to erect the same protections nationwide simply was not. That the Presidency was to wield perhaps the greatest single share of power within the national government doubtless provided further encouragement on the Framers’ part to defend its legitimacy at nearly any cost.       

In addition to avoiding the more problematic aspects of collective decision-making by performing its function as quickly as possible, and also maintaining a distinct separation between itself and potentially compromised pre-existing institutions, Hamilton described in paragraph six of Federalist No. 68 that the Electoral College also served to safeguard the sanctity of the office of President by keeping its membership geographically scattered. The manner by which this situation offered a counter to a potentially malicious manipulation of the election process was quite simple, and if anything required less effort for greater effect than if the Electors were asked to assemble in a single location. “The business of corruption,” Hamilton accordingly declared in the sixth paragraph of no. 68,

When it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives which, though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.

A cursory glance at a map of the United States, as well as a basic understanding of the amount of time it took to travel even moderate distances in the late 18th century, would seem to corroborate Hamilton’s core assumption.

In 1788, a particularly fast mail coach could cover the distance between Edinburgh, Scotland, and London, England – a journey of about four hundred miles – in approximately four days. By comparison, the distance between Exeter, New Hampshire (the state capital as of 1790) and Augusta, Georgia (likewise) was over one thousand miles. When one also considers that the lack of public infrastructure – paved roads, canals, bridges, etc. – made communication between certain regions of the 18th century United States exceedingly slow and correspondingly unreliable, the possibility of any single entity co-opting either the elections or deliberations of potentially hundreds of Electors across the length and breadth of the American republic would indeed have surely seemed a fairly ludicrous proposal to Hamilton and his cohorts. Possessed of adequate information and resources, a foreign agent stationed in Albany may well have been able to “capture” New York’s parcel of Electoral Votes – twelve as of 1790 – for whichever candidate their masters preferred. Indeed, it must be admitted that covert functionaries located in just about any state capital could potentially have worked the same magic with the same result. And yet, as No. 68 made quite clear, the Electors were independent agents whose discretion was integral to the process of electing the President of the United States. They were not required, by the terms of the Constitution, to vote any way other than how their conscience dictated. Attempting to influence even the twelve Electors chosen to speak for the people of New York thus represented no small effort. Accordingly, the prospect of attempting to herd the majority of New York’s Electors toward a particular conclusion, as well as those of Virginia, Pennsylvania, Massachusetts, and however many other states were required to see a particular candidate elected, doubtless appeared to the Framers to be a practical impossibility. From the perspective of 1787, next to nothing could have allowed such efforts to coordinate with one another swiftly enough to facilitate the corruption of the whole endeavor.    

Time, it seemed, was the key to the viability of the Electoral College, and physical space. Because the Electors would only hold their offices for the duration of the election – a few months at the most – they could not be easily bribed, threatened, or otherwise influenced quickly enough or effectively enough to shape the final outcome. The window between their election and the election of the President was too narrow to permit their being targeted by the agents of a foreign power, or even by certain domestic interests. Nor was this interval lengthy enough to allow the kinds of entrenched disagreements that had become common features of both Congress and the various states legislatures to seep into and corrupt the process by which the Electors submitted their votes. Preventing the Electors from ever meeting as a single group likewise ensured the efficacy of the project. Smaller delegations would be more able to fully explore the issues attendant to the election of a chief executive than a single particularly large one. Individual speakers would be permitted more time to make themselves heard, and debates would be given the freedom to delve into whichever areas of policy or philosophy the Electors deemed necessary. Utilizing physical space also benefited the Framer’s anti-corruption agenda by making it that much harder for those wishing to influence the outcome of a presidential election to surmount the logistical hurdles involved. These combined safeguards may not have between them created a perfect system for electing a chief executive, Hamilton was willing to admit in the first paragraph on No. 68, “But if the manner of it be not perfect, it is at least excellent.” 

With this prideful sentiment in mind, and taking into account all of the various preferences and anxieties nurtured by the Framers that the previous discussion has hopefully exposed, it at last remains to determine precisely what they intended the Electoral College to be. To that end, several key elements appear most obvious. First and perhaps foremost, its seems quite clear that the Framers created the Electoral College primarily because they felt that neither the general population nor any permanent institution of government could be trusted to elect the nation’s chief executive. The American people were too poorly educated, too uninformed, and too easily led by their passions, while Congress and the state legislatures alike were too prone to partisan squabbling and perhaps inescapably vulnerable to corruption. The Electors represented a comfortable middle ground because they possessed a strong relationship with the voting public and enjoyed a number of the advantages of government by collective while managing to avoid both the credulity of the former and the contentiousness of the latter.

Based on Hamilton’s recurrent refrains within the text of Federalist No. 68 of the importance of guarding the Electoral College from bias, foreign influence, or motives which, “though they could not be denominated corrupt, might yet be of a nature to mislead [,]” it also seems fairly obvious that the Framers were very keen on the Electors being absolutely free to exercise their individual discretion. Nowhere was it mentioned that the members of the Electoral College were bound to vote along the same lines as their constituents, and not once were parties, or primary voters, or state chairs invoked as vital members of the electoral process. Rather, to once more cite a particularly illuminating passage from the third paragraph of No. 68,

The immediate election should be made by men most capable of analyzing the qualities adapted to the station [of President], and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.  
        
If the Elector chosen by the people were simply to vote in mirror of the people, there would be no need for them to analyze anything, engage in any sort of deliberation, or pay any heed to whatever reasons or inducements concerned what would really only appear to be a choice on their part. In fact, the opposite was quite clearly the case. The ideal Electors, as defined by Hamilton in No. 68, were expected to possess the “information and discernment” required to complete what he described as the “complicated investigations” inherent to their sole task of electing the President. In consequence, the Electoral College that the Framers originally envisioned might almost be thought of as a wholly independent fourth branch of the United States government – the Electoral Branch, chosen by the American people every four years and tasked with determining who among their fellow citizens was best suited to wield the power and shoulder the responsibility of the nation’s highest office. 

Friday, February 10, 2017

Federalist No. 68, et al, Part II: Trust and Abhor

            Bearing in mind the skewed Electoral College outcomes discussed in last week’s entry – those of 1824, 1876, 1888, 2000, and 2016 – and the related assertion that the system was not intended to produce such strange contortions of the popular will, the question remains as to what precisely its designers thought they were up to. Federalist No. 68, also mentioned previously, provides in itself a fairly clear answer. Spun from the pen of the indefatigable Alexander Hamilton, this polemic essay was intended, along with the rest of the Federalist Papers, to convince the people of New York that the proposed national constitution then up for ratification represented a viable way forward for the nascent American republic. Its specific subject matter concerns the Electoral College itself, the logic behind its creation, and some of the benefits it offered the American people in facilitating their choice of chief executive. Hamilton, a delegate to the Constitutional Convention of 1787 from New York, had helped to design many elements of the proposed constitution, and seemed to take particular pride in the power, firmness, and responsibility ultimately delegated to the executive branch. No. 68 very much reflects this sense of satisfaction and confidence, while also giving insight into some of the assumptions harbored by Hamilton and his contemporaries about the value of democracy, the dangers of populism, and the prudence of the average American citizen.     

Because the Federalist Papers were intended for popular consumption – the first seventy-seven of them were published originally in New York newspapers The Independent Journal and The New York Packet­ – and because the discussion they were a part of was about a document that had already been widely circulated, Hamilton did not go into very much detail in No. 68 when he discussed the Electoral College­ and the logic behind it. If his audience was interested in digging into the finer details of the system as described in the Constitution they were perfectly free to do so, and those for whom the document itself was too dense and legalistic doubtless appreciated having matters neatly summed up. The text of No. 68, therefore, tends to talk around the particulars of how the Electoral College was supposed to function. That being said, its intended purpose – as Hamilton conceived it – can quite easily be discerned from some of the strengths and benefits he ascribed to it. Consider, for example, a passage from the second paragraph of No. 68 in which Hamilton expressed his desire that the choice of President should in some way reflect the, “sense of the People.” This was best accomplished, he wrote, “By committing the right of making it, not to any pre-established body, but to men chosen by the People for the special purpose, and at that particular conjuncture.” From these words, several assumptions may be deduced.

Taking Hamilton’s wish that “the People” be involved in the choice of President at face value, it is significant that he also believed the selection of chief executive was best left to “men chosen by the People [.]” As important as the general citizenry were to the practice of republican government – and no American statesman of the period would have argued otherwise – the Framers of the Constitution evidently did not believe they were the ideal constituency to elect a president. Thus, by way of conclusion, it would seem fair to say that one of the purposes the designers of the Electoral College likely intended it to fulfil was for it to reflect the popular will while maintaining some degree of distance from it. At the same time, as Hamilton expressed, the selection of the American republic’s head of state should not have been left to a “pre-established body.” Presumably either of the houses of Congress would have fallen into this category, each possessing a set of responsibilities and an electoral timetable distinct to their intended purpose within the government of the United States. Hamilton seemed to conversely desire an association of men called into existence solely to elect the President, and as near in time to that event as was feasible. In consequence, a second assumption to be drawn from Hamilton’s words is that he and his fellow Framers desired the choice of chief executive to be made by men without any other official responsibilities who could be called to assemble, make their decision, and disband as quickly as made practical sense.

Echoes of these two assumptions recur again and again across the length of No. 68, lending further credence to the assertion that they represent the actual intentions of the architects of the Electoral College. Paragraph three, for instance, contains passages which strongly attest to the aforementioned desire on the part of the Framers to maintain an appropriate distance between the American electorate and the individual ultimately chosen to serve as their chief executive. In part, the approach was phrased as a question of suitability. Rather than leave the decision to the voting public at large, Hamilton asserted that,

The immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.

Taken at face value, this would seem to indicate that Hamilton and the other Framers did not believe that “the People,” to whom they nonetheless asserted the President ought to be beholden, had the ability to adequately analyze “the qualities adapted to the station [.]” Nor, it seemed, did they think that the average citizen of the United States in 1787 was possessed of the “Information and discernment requisite to such complicated investigations.” This is where the Electoral College stepped in. Its members, chosen by the people and embodying the combined wisdom, discernment, and knowledge of their generation, would independently select the best candidate for President. Once more bearing in mind that Hamilton’s interpretation of the Electoral College may fairly be considered the closest to what its collective architects originally intended, it appears that the system was designed to delegate the final choice of President to the Electors themselves.

Granting that this sounds somewhat undemocratic by modern standards – reserving the responsibility for filling the highest office in the land to a small group of specially-qualified individuals – there were a number of practical reasons for the Framers to prejudice quality of elector over quantity. Even the relatively small percentage of the American population entitled by state electoral laws to vote at the time Federalist No. 68 was published were by and large not particularly well-educated. A large portion of the men that met the various property qualifications were independent farmers who had little need for higher education – their literacy, if they possessed it at all, was most likely of religious origins, or the product of home schooling, or was self-taught. Advanced education, of the kind that might instill a person with “information and discernment [,]” consequently remained the privilege of a small elite group within the larger American social body. The Framers, incidentally, were members of this same group nearly to a man, and doubtless harbored a high estimation of its collective analytic and deliberative abilities. Restricting the final selection of President to an assembly of men composed solely of members of this small subset of the general population was thus likely a practical admission to a very real problem – i.e. that the individuals perhaps best qualified to make the choice were so marginal in number that their expertise might easily be swamped if the vote were left to the general electorate. Gather these people together, however, and place them in a situation so that they might make full and effectual use of their knowledge and their cultivated rationality, and the entire nation may serve to benefit from their particular expertise.

In the fourth paragraph of No. 68, Hamilton shifted from talking about the qualifications necessary to elect a President to the broader social value of keeping the ultimate decision-making body as small as possible. “It was also peculiarly desirable,” he wrote, “to afford as little opportunity as possible for tumult and discord.” The Presidency, he asserted, was too important, and too powerful to allow the process of selecting its occupant to be marred by “mischief” of any sort. The Electoral College accordingly served to keep the process of electing the nation’s chief executive stable and secure by first taking the ultimate choice out of the hands of an easily exited multitude, and then by ensuring that the much smaller cohort actually tasked with casting the final vote were both disseminated across the various states and sequestered from the easily-inflamed passions of the general population. The former was made necessary, Hamilton wrote, because,

The choice of several, to form an intermediate body of Electors, will be much less apt to convulse the community, with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes.

What this meant, essentially, is that it appeared to Hamilton and his fellow Framers that asking the voting public to choose a small number of Electors was far less likely to result in widespread tension and turmoil than would asking them to decide upon the single individual ultimately responsible for leading the nation. Knowing that only one man would ascend to that highest office, and recalling the power that would be at their disposal, the people might easily become aroused to a destructive kind of enthusiasm in an eagerness to see the elevation of their preferred candidate. Ask them to choose a slate of Electors, however, none of whom would occupy a position of permanence or power, and the stakes of the election would accordingly appear that much lower to the average American voter. Inflamed popular tensions thus circumvented, the choice of President could be made in the scouring light of reason and rationality. Or so Hamilton and his cohorts at the Philadelphia Convention evidently believed.

            The other remedy to social unrest that Hamilton believed the Electoral College offered pivoted upon the provision that the collective body of Electors would at no point meet at one place and at one time. “As the Electors,” he accordingly declared,

Chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the People, than if they were all to be convened at one time, in one place.   

It would seem that the Framers feared the emergence of heated tempers from within the Electoral College in much the same way that they did concerning the larger electorate. The Electors, after all, would be tasked with deciding amongst themselves which single person was to occupy perhaps the most powerful public office in the United States government. Small though their number were intended to be, an accurate representation of the American people would surely create a group sufficiently large to be subject to the same kind of ferments that were so feared among the general population. But unlike with the general population, the decision could not further be delegated from the Electoral College to some higher, more exclusive body – a “Super Electoral College,” if you will – without sacrificing all sense of practicality. No, the decision could not be put off indefinitely; at some point, someone would have to actually elect a President.

            The solution Hamilton offered in No. 68 was quite simple, almost elegant. Rather than call the whole number of Electors together in whichever city was serving as the nation’s capital – in 1787 it was New York City, by 1790 it would be Philadelphia, and after 1800, Washington, D.C. – instead compel them to meet in their respective states and cast their votes for President there. Once each state’s Electors had made their voices heard, the results would be combined and a winner declared. This would serve to reduce the scale of the debate from more than one hundred Electors – the combined total as of the 1790 census – to just over twenty – the number assigned to the largest state, Virginia – thus providing for an atmosphere more conducive to reasoned discussion and less prone to the emotional volatility often seen in large-scale public assemblies. This arrangement also had the potential to prevent some of the “heats and ferments” that a thorough discussion of the best candidate for President was bound to generate from being communicated by the Electoral College to the general population. Specifically, by isolating the state delegations from one another, even someone with inside knowledge – a newspaper editor, say, in New York, or Virginia, or Maryland – would be more-or-less incapable of reporting on the whole of the debate taking place. The citizens of Boston might perhaps, through the ineffable power of gossip, discover how the Electors chosen by the people of Massachusetts were inclined to vote, but neither they nor those same Electors could know which candidate for President was the most likely to succeed until the votes of every state had been recorded and tallied. Doubtless a particularly enterprising individual with contacts in many states and access to several fast horses could cobble together a reasonable guess, but for the most part a divided Electoral College would help prevent what was supposed to be an informed and reasoned decision from devolving into popular turmoil.

            If the reasons Hamilton put forward in No. 68 for keeping the general population isolated from the final choice for President thus far seem somewhat patronizing, further discussion of the same will do little to alter that perception. Taking what is written at face value, it would seem that the Framers of the Constitution – and thus, the architects of the Electoral College – were of two minds as to the proper relationship between the American people and their chief executive. On one hand, they seemed to think that it was absolutely necessary for the general population to be the only body to which the President ought to have been held accountable. The passage quoted above from the second paragraph of No. 68 attests well enough to that. At the same time, however, Hamilton and his cohorts seemed to consider the American people as a whole too easily led by their passions to be trusted with electing the President themselves. Their perception of the aforementioned “tumults” and “convulsions” from which the general electorate needed to be shielded speaks to this rather paternalistic attitude, whereby the voters were viewed as something like children who possessed neither the judgement not the emotional maturity to cast the final vote themselves.

This almost paradoxical sensibility – that the American people were at once the sole legitimate source of authority in the republic and not at all to be trusted – in many ways mirrored the logic of the Constitution itself. In response to the “democratic excesses” of many state governments in the post-Revolutionary 1780s – the free reign given to populism, the disregard paid to certain types of private property, the widespread usage of unstable paper currency, etc. – a collection of statesmen, scholars, and private citizens determined to erect a system in place of the existing Articles of Confederation that would more effectively check and balance the energy and vitality of the American people against the needs of a stable and effective national government. The Electoral College formed a vital part of this response, and so its logic – as explored by Hamilton in Federalist No. 68 – embraces a seemingly contradictory respect and horror of the average American citizen.

Both sides of this dualistic understanding are further evidenced in No. 68 in the seventh and ninth paragraphs therein. Hamilton sought to explain in the former that, in addition to the advantages already discussed, the Electoral College also served the purpose of preventing a sitting President from feeling as though they owed their office to any constituency but the American people themselves. Were it otherwise, he cautioned, the chief executive might be, “Tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence.” Consider, in this vein, a scenario in which the House of Representatives elected the President. Because the House would continue to exist throughout the chief executive’s term in office, it could presumably continue to exert some degree of influence over the direction and tenor of their administration (in the way of an ongoing quid pro quo). This would doubtless become particularly problematic during the months and weeks leading up to a prospective presidential re-election, when surely none but the most steadfast and unwavering individual could bear to resist the promise of a continued possession of the reigns of executive power.

The Electoral College could never exert this kind of influence on an American President because its membership was to be, by law, dispersed upon the performance of its sole official duty. Thus nullified, the Electors would be effectively powerless to cajole, pester, force, or otherwise direct their chief executive to do anything of consequence. The only remaining constituency to which any President could thus be considered beholden was that which had chosen the Electors themselves – i.e. the American people. This, Hamilton seemed assured, was only right and proper, both because he and the Framers believed that the citizen was the sole legitimate source of sovereignty in the American republic, and because the general population were ostensibly incapable of organizing to the degree of being able to extort favors from a sitting President. In this sense, the Electoral College further served the purpose of establishing a bond between the President and the people without unduly relying upon the expertise or deliberative skill of the latter. The collective knowledge and expertise of the Electors stood in for whatever the general population lacked, while the temporary nature of their appointment prevented them from becoming a power in their own right.

Hamilton gave voice to the other half of the dualistic “Constitutional formula” – in this case the Framer’s reticence to trust the American people too freely with consequential questions of state – in the aforementioned ninth paragraph of Federalist No. 68. Therein, while once more touting the virtues of the Electoral College, he casually made known his rather low opinion of the sense of discretion nurtured by the majority of his fellow countrymen. Delegating the election of President to an intermediate body, he first declared, all but guaranteed that the office, “Will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications [,]” because no candidate could succeed unless they had managed to cultivate the, “Esteem and confidence of the whole Union [.]” No more explanation was given than this as to precisely how the Electoral College facilitated this end. Presumably Hamilton was referring to the fact that the existence of an intermediate constituency between the people and the Presidency, and the fact that that constituency was divided into state delegations, ensured that a candidate could only ascend to the highest office in the land by appealing to the common interests of all – or at least the majority – of the constituent political communities within the United States. That is to say, he seemed to believe that the Electoral College ensured candidates would have to earn the support of the states – rather than the people – in order to be successful.   

Hamilton was somewhat clearer, however, in describing approximately what kind of individuals the Electoral Colleges was intended to screen out. Whereas he asserted that a successful candidate for President would require talents and qualifications enough to garner the esteem of the majority of the states, “Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors of a single State” With this offhand reference, No. 68 substantiates the Framers’ evident contempt for the judgement of the average American citizen. After all, intrigue and popularity were values much despised by those men living in the late 18th century Anglosphere who considered themselves to be of a gentlemanly persuasion. The classical republicanism that underpinned the American Revolution, along with the philosophical values of the Enlightenment prized by many of the Founders, took a similarly dim view of such low arts as deception and conspiracy, and of such base personal motivations as ambition and fame. It was therefore understandable for the Framers of the Constitution – as esteemed an assembly of self-conscious gentlemen and scholars as one is like to find – to have desired the office of chief executive to devolve upon someone who could honestly and openly appeal to the interests of the United States as a whole rather than rely upon cunning political strategy or personal reputation.

And yet, Hamilton opined in No. 68 that such base stratagems could potentially reward their practitioner with “the first honors of a single State [.]” Evidently he believed that while he and his scholarly cohorts were capable of seeing through and countering the appeal of flattery or fame, his fellow countrymen remained susceptible. Whether this was a judgement upon their lack of education, or their close-mindedness, or their credulity, the conclusion is essentially the same: Hamilton and the Framers did not wholly trust the American people to decide who ought to occupy the office of chief executive. This was perhaps another reason that the architects of the Electoral College chose to forego a strictly popular vote. Whereas a victorious candidate who had appealed to the discontents, fears, or ambitions of a particular social or economic class among the general population may well have been able to claim that they spoke for a sizeable percentage of their fellow Americans, their success could potentially have come at the cost of alienating entire states, or state government, or economic sectors, or social strata.

By the terms of the Constitution, the President was the only officer of the federal government who could claim anything close to a national mandate – rather than represent the states, or the law, they would represent the citizens of the United States. The legitimacy of this role would be much reduced, however, if the citizens they claimed to represent were spread inconsistently throughout the nation. To put it another way, the Framers – through the lens of Hamilton and Federalist No. 68 – seemed to think that the President of the United States could not simply claim to represent the working classes, or the farmers, or the merchants living in the various states. Consider, for instance, that merchants represented a major economic force in New England but were much less influential in the South. A President who rose to power on the back of supporting open trade policies, or making credit more freely available, or encouraging the growth of manufacturing might thus have enjoyed widespread support in the Northeast and almost none at all below the Mason-Dixon Line. While a potentially successful strategy, this hardly represented a national mandate.

Involving the states in the presidential election process – in the form of Electors – theoretically helped prevent such an outcome by ensuring that candidates for President would need to reach beyond particular demographics or economic communities and find the common ground between the nation’s integral political jurisdictions. The Electors – designated representatives of their state’s various social and economic communities – would facilitate this by meeting in their respective state capitals and bringing forth their issues, or concerns, or desires in open discussion. The fruit of these discussions would be the final vote for President, shaped by the input of Electors speaking for their neighbors, and their colleagues, and their co-religionists, and themselves. Thus, rather than appeal only to the merchants clustered in New England, or the planters on their estates in Virginia and Maryland, or the workingmen of New York, or only the city-dwellers, or only the country-dwellers, a prospective president would need the support of whole states, each one a mix of these and other communities and interests.

Friday, February 3, 2017

Federalist No. 68, et al, Part I: Context

            For reasons which I’m sure are fairly obvious, I’d like take a moment to talk about the Electoral College. Yes, I mean that odd little facet of America’s democratic institutions that is almost as old as the country itself, and that now and then produces outcomes that seem at odds with the evident desires of the voting public. It is, make no mistake, an unusual mechanism by which to elect a head of state, and one which many foreign observers can only shake their heads at in confusion and bemusement. Indeed, more than a few American citizens have doubtless found themselves at a loss to explain how the Electoral College works and why it exists when asked by friends, relatives, or acquaintances not native to the land of the free and the home of the brave. Generations of pundits, commentators, and public officials have attempted this same feat, and notably struggled to grasp the logic that presumably underpins the system. It has to do with putting all of the states in play, they say. Or they speak of how the Framers intended it to act as a kind of check on the ruthless logic of majority rule. Neither of these suppositions is terribly close to being correct, though that fact can be easily forgiven. In truth, the way the Electoral College functions in 2016 is somewhat at odds with what it was originally designed to do.

            In order to make this case, discuss some of the assumptions that originally supported the existence of the Electoral College, and explore what has changed in the United States since its adoption, I’d like to spend the next few weeks talking through yet another essay in a series that I’m sure my erstwhile readers are by now completely tired of. I am of course referring to the Federalist Papers, and to Federalist No. 68 in particular. One of the fifty-one entries written by everyone’s favorite, sexy, scrappy, self-destructive Founder, Alexander Hamilton, No. 68 put forward a fairly simple and fairly concise argument in favor of the Electoral College. In brief, it discusses some of the problems inherent in electing a head of state via a national vote, offers the various ways that Hamilton believed the College would counter those issues, and also points out several other benefits which he judged that the system possessed. While this may not sound terribly exiting – in fairness, it probably isn’t to people who aren’t at least a little touched in the head – No. 68 is nevertheless a potentially revelatory read for those who wish to understand what the designers of the Electoral College held to be its purpose. I say this is the case because Hamilton was “in the room where it happened” when the Electoral College was created, and because the system he described in his essay bears only a moderate resemblance to this thing – this institutional Albatross – that no small portion of the American public seems to continually struggle to explain.

            But first, of course, there is some amount of groundwork to be laid. Putting aside for the moment why it exists and what benefits it is supposed to confer upon the American people, the way that the Electoral College actually functions is, in its broad strokes, fairly straightforward. Essentially, the College acts as an intermediary between the voting public and the presidential nominees during a given quadrennial general election in the United States of America. The voters choose Electors on a state-by-state basis on Election Day in November, and during the following December the Electors meet and submit their votes for President. The victor is the candidate who manages to secure the support of an absolute majority – 50% +1 – of the total number of Electors. The transparency of this two-step process is somewhat obscured, however, by the perpetuation of two very common practices. In a great many states, ballots list only the names of the presidential and vice-presidential candidates, rendering the Electors that are actually being chosen a mystery to the general public. In addition, in spite of the fact that it has no bearing on the outcome of the election, the national popular vote – that is, the actual number of votes that a candidate receives – is still tallied by the state governments and the Federal Election Commission, and is widely reported by national media outlets. As a result, the average voter has every reason to believe that they are helping to elect the President directly, and that the popular vote is somehow significant to or legally binding upon the outcome.

            For their part, these mysterious Electors are apportioned to the individual states on the basis of population, using the same formula by which the states are allocated their seats in Congress. California, to use a prominent example, was assigned fifty-three seats in the House of Representatives for its population of over thirty-seven million following the 2010 census. By adding to this number the two seats that every state is allotted in the Senate, the state’s total number of Electors was set between the years 2010 and 2020 – the date of the next census – at fifty-five. Because every state must be represented by at least one member of the House of Representatives and two members of the Senate, the smallest number of Electors a state can be apportioned is three. Though Washington D.C. is not a state, the terms of the Twenty-Third Amendment – ratified in 1961 – grant it the right to choose its own Electors as if it were, provided that their number does not exceed that which is allocated to the least-populous state – i.e. three. Candidates for the role of Elector are nominated via a number of different mechanisms, depending on the state they wish to represent. In some cases nominees are chosen by the general membership of a party by way of a primary, or by a party convention. In other instances the party leadership will appoint candidates directly, or the choice will be left to the campaigns of the respective presidential nominees, or to the relevant state legislature. The selection criteria for individual electors are similarly open-ended. The text of Article II, Section 1 of the Constitution states that the only people disqualified from serving as Presidential Electors are those already serving in a federal office in an elected or appointed capacity. The Fourteenth Amendment adds the further – though seldom used – complication that anyone who swore an oath to defend the Constitution that then rebelled against the United States government is likewise disbarred from serving as an Elector.

            In spite of being collectively referred to as the Electoral College, the Electors never actually assemble in a single location during the performance of their duties. Rather, following their election in November of a given election year, each delegation meets in their respective state capitals (or, in the case of Washington’s D.C.’s Electors, somewhere in the District) on the Monday following the second Wednesday in December. Once convened, the delegation of Electors functions something like a miniature Congress. A statement is first read by a certification official, and then attendance is taken, and then officers are chosen to fulfill certain roles. A pair of tellers are then assigned, the votes are called – first for President, and then for Vice-President – and the results are tallied and announced. In spite of how deliberative this sounds, law and custom – Electors are bound to support the nominee of their party, and with the exceptions of Nebraska and Maine are awarded in a winner-take-all lump to whoever wins the majority of votes in a given state – have effectively rendered this second casting of votes a fait accompli. In all, the assembled Electors of each state must complete six Certificates of Vote, each of which records how many votes were given to all of the eligible candidates, must include the signatures of every participating Elector, and must have attached a Certificate of Ascertainment provided by the relevant certification official. The Certificates of Vote are then split up and sent to a specific public official or institution – one goes to the President of the Senate, one to the chief judge of the District Court in which the Electors convened, two to the Secretary of State of the state that the Electors represent, and two to the Archivist of the United States. If this sounds like an overly-complicated set of procedures for what appears to be the formal confirmation of a foregone conclusion, there is, rest assured, a very good reason for it.
            In the event that no candidate for President of the United States manages to secure an absolute majority of the total electoral votes on offer – as of 2016, the magic number stands at two hundred seventy – the chosen Electors are not permitted to actually cast their votes and the race for the highest office in the land becomes the responsibility of the House of Representatives. Procedurally, the process that follows begins when the names of the top three finishers by Electoral Vote are submitted to the House, whose members are then convened in a special session. Voting takes place by state delegation rather than individual Representative – i.e. California’s fifty-three seats net it only a single vote – and the successful candidate for President is the one who manages to secure an absolute majority of the fifty state votes – thus, twenty-six. In spite of possessing the right to choose three Electors, the Delegate from Washington D.C. is not permitted a vote during these proceedings, and at least two-thirds of the total number of states must be represented for voting to formally take place. There is no limit on the number of ballots that can be held, though Inauguration Day will take place as scheduled with an acting-President if necessary. Also worth noting, amidst this catalogue of parliamentary procedure, is that the House of Representatives tasked with this responsibility is comprised of the outgoing rather than incoming delegates. Thus, in the event that the House is called upon to exercise perhaps its most weighty obligation, a number of those assigned to resolve the impasse may have just been voted out of office. Without necessarily calling into question the logic of this choice, the likely result would almost certainly be that some amount of high emotion – personal bitterness, jubilation, etc. – is bound to work its way into the process.

            A notable quirk of choosing a head of state via a delegated voting system like the Electoral College is that it’s entirely possible for a candidate to secure enough Electoral Votes to be declared the victor in spite of securing less than a majority of the total popular vote. The practical consequence of such an outcome is that the individual for whom the most people voted on Election Day sometimes ends up losing. In the history of the United States of America, this has happened on five occasions. The first, in 1824, should be noted with an asterisk. Of the four candidates running for President – all of whom were members of the Democratic-Republican Party – Andrew Jackson (1767-1845) secured both the greatest number of Electoral Votes (ninety-nine) and the largest share of the popular vote (41.4%). Because one hundred thirty one Electoral Votes were needed to secure victory, however, the procedure described in the previous paragraph was set in motion. John Quincy Adams (1767-1848), though he came in second to Jackson in both the Electoral (eighty-four) and popular (30.9%) votes, thereafter gained the support of thirteen states in the outgoing House of Representatives – out of a possible twenty-four – and was consequently declared the winner and President-Elect. Much has been said as to the exact circumstances of this upset victory. The Speaker of the House, and thus the man responsible for overseeing the contingent vote for President, was Henry Clay (1777-1852), the fourth-place candidate in that year’s election who thus failed to make the cut-off to have his name submitted to the House. The fact that Clay, following Adams’ victory, was named the President-Elect’s candidate for Secretary of State led to loud accusations of a “corrupt bargain” and arguably helped lay the groundwork for the bombastic Jackson’s victory in the subsequent Election of 1828. Without commenting on the veracity of Jackson’s outraged claim, it can at least be asserted with some confidence that by failing to designate a clear winner in 1824, the Electoral College failed to fulfil its most basic function.

            The four subsequent occasions during which the person elected President secured a smaller share of the popular vote than their opponent –1876, 1888, 2000, and 2016 – were similarly unusual in their finer details, though each can trace their seemingly illogical result to the same basic functional cause – i.e. the Electoral College. The Election of 1876 saw Democrat Samuel J. Tilden (1814-1886) secure a larger percentage of the popular vote than his Republican opponent Rutherford B. Hayes, yet still lose the election by a single Electoral Vote – one hundred eighty-four to one hundred eighty-five. Though there is a fair deal more to the story than the numbers alone indicate – allegations of fraud at the polls, three disputed states, a special electoral commission, and a bipartisan compromise – a glance at the electoral map paints a clear enough picture. Tilden, a native of New York, carried his home state – then the biggest single prize, with thirty-five Electoral Votes – along with a handful of medium-sized states – Indiana and Missouri, for instance, each with fifteen Electoral Votes – while Hayes took the next three largest states after New York – Pennsylvania, with twenty-nine votes, Ohio, with twenty-two, and Illinois, with twenty-one – along with New England and a smattering of smaller western states. In spite of the close Electoral College result this produced, however, Tilden led Hayes in terms of actual votes cast by a significant margin – 4,288,546 or 50.9% to Hayes’ 4,034,311 or 47.9%. Indeed, the Election of 1876 represents the only instance in American history when a candidate for President secured more than 50% of the popular vote without achieving an overall victory. Though it would be pointless to deny that electoral fraud did not in any way contribute to this unusual result, the fact remains that the existence of the Electoral College made the victory of Rutherford Hayes – the second choice of the American voting public – possible.

            By the Election of 1888, the chaotic political context of the post-Civil War Reconstruction – the military occupation of the South, widespread electoral fraud, popular violence – had settled once more into a fairly close approximation of the antebellum sectional divide. Incumbent President and New York Democrat Grover Cleveland (1837-1908) carried the whole of the former Confederacy – notably including Texas, with its thirteen Electoral Votes – along with Border States Missouri (sixteen) and Kentucky (thirteen), while challenger Benjamin Harrison (1833-1901) captured the Northeast – anchored by New York and Pennsylvania’s combined sixty-six Electoral Votes – the Midwest, and the West Coast. In spite of Cleveland’s 48.6% share of the popular vote to Harrison’s 47.8%, however, his one hundred sixty-eight Electoral Votes paled in comparison to Harrison’s two hundred thirty-three. With two hundred one Electoral Votes representing the margin of victory, Cleveland came up far short and Harrison far in excess. Because New York tended to vote Democratic as often as Republican during this era in American history, was Cleveland’s home state, and would have tipped the scales in his favor if its thirty-six votes had ended up in his column, it has often been labelled the lynchpin of Harrison’s triumph. An examination of the candidates’ vote tallies would seem to lend credence to this claim – Harrison won the Empire State by less than fifteen thousand votes. Because of the “winner-take-all” format by which the Electoral College operates, of course, the six hundred thousand that voted for Cleveland in the Empire State made no difference to the final result.      

            Because the Elections of 2000 and 2016 were so recent compared to those thus far discussed – and in the case of the latter, perhaps too recent for comfort – less perhaps needs to be said about them. 2000, of course, saw incumbent Democratic Vice-President Al Gore square off against Republican Governor of Texas George W. Bush. Vice-President Gore garnered a 48.4% share of the popular vote, largely centered on big states like California, New York, and Pennsylvania, while Bush managed 47.9% by taking the South, the Interior West, Ohio, and Indiana. In the end, however, Bush’s two hundred seventy-one Electoral Votes – exactly one more than he needed to win – surpassed Gore’s two hundred sixty-six. Following a series of recounts in Florida, several conflicting court rulings, and a final decision by the Supreme Court, Bush was certified the victor a full month after Election Day. His lead over Gore in the Sunshine State, when the dust finally settled, was a mere, miniscule, otherwise-statistically-insignificant five hundred thirty-seven votes. As with New York and Grover Cleveland over a century earlier, the nearly three million Americans who supported Al Gore in Florida were effectively brushed aside by the oft-times ruthless logic of the modern Electoral College.

            Without trying to re-litigate the Election of 2016, it will suffice to say that it played out in a manner not dissimilar to the previously-noted races of 1888 and 2000. Former Secretary of State and Democratic nominee Hillary Clinton secured 48.0% of the popular vote to Republican Donald Trump’s 46.3%, but Clinton’s two hundred thirty two Electoral Votes fell well below the threshold of victory compared to her opponent’s three hundred six. And while the electoral map was somewhat jumbled compared to previous election years – reliably Democratic Michigan, for instance, voted Republican – the balance of Trump’s victory was mainly held by swing states like Pennsylvania, Ohio, and Florida. Where 2016 arguably stands apart from the other instances cited above, however, in in the actual number of votes separating the victor from the vanquished. Whereas Al Gore received just over five hundred thousand more votes than George W. Bush, and Grover Cleveland a little more than ninety thousand votes over Benjamin Harrison, Hillary Clinton’s popular vote lead over Donald Trump stands at something in excess of two million. This means – and you will forgive me for sounding cynical –  that the over two million more people who voted for Clinton over Trump might as well have stayed home on Election Day, for all the effect they had on the final result. This is the work of the Electoral College, and it is emphatically not what its designers intended.