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.

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