Bill Petrocelli

Part 4: Electoral Bait & Swtich

Part 4   Electoral Bait & Switch

Bill Petrocelli

A modern Presidential election is an all-consuming process that lasts for almost two years, costs well over $5 billion, and dominates American life like nothing else. In 2016 there were more than 135,000,000 votes cast for President, making it one of the largest elections in history. Americans are constantly reminded that they’re voting for the most important office in the world. While this long process is going on, the country is inundated with speeches, interviews, promos, news clips, endorsements, social-media spots, and attack ads. Although the political pros knew to focus on swing-states in the latter days of the campaign, candidates spend most of those two years crisscrossing the country throughout the primaries and general election, searching for endorsements and money, and making campaign stops everywhere. Debates among the candidates are carried nationwide, and they become some of the most highly watched shows of the year.

Then, on a Tuesday in November, everything comes to an end when the nation votes. And then . . . and then Americans wait to see if the election will turn out the way they voted or whether something else will happen.

Virtually every one of the millions of people who voted in the last election thought they were voting for a President. Only a few insiders realized they were technically voting for Electors—a group of anonymous people that almost no one can name. For more than 100 years this anomaly in our system seemed to make no difference, but that changed in the 2000 election and then again in 2016. In both cases the Electors emerged from the shadows and anointed someone as President who had received fewer votes than his opponent. The defenders of the current system will happily tell you that this is how it is supposed to work. According to them, winning or losing the national popular vote is irrelevant, because the voting in November is not really a presidential election at all. It’s just a series of mini-elections—a prelude, they say, to the real election that occurs in December, when 538 Electors meet and decide who will be President and send the paperwork to Congress.

If anyone ran a business that way, he would probably be indicted for consumer fraud. What the defenders of this distorted version of the Electoral College are trying to justify is one of the most outrageous bait and switch schemes in history.

Just a “Ceremonial Function”

It’s probably not polite to refer to this current political process as a con job, but any other term would just sugar-coat it. In the period leading up to the Civil War, various state legislatures radically altered the Elector-process that the framers had in mind when the Constitution was originally written. Basically, they jacked up the term “Electoral College” and ran a whole new process underneath it. We’re living now with the results of that extra-constitutional modification of the system.

The original idea of the framers was that the states would appoint Electors who would then act independently to select the best candidate for President, functioning like what we might now call an executive-search committee. The framers stressed the need for the Electors to be independent. According to Alexander Hamilton, the Electors had to be “capable of analyzing the qualities” needed in a President and needed to act “under circumstances favorable to deliberation” (Federalist Papers, no. 68). Hamilton himself was an Elector in the first presidential election, and he lobbied Electors in other states to support George Washington.

The Electoral College has now become a parody of that original vision. The Electors’ only current function is to meet for an hour or so, sign a few papers, and be on their way. In every state the selection of Electors has been delegated to the political parties, and there has been no attempt whatsoever by the states to evaluate the experience, values, viewpoints, or anything else about the people who are selected. There is no expectation by anyone that the Electors will act independently or, really, act in any significant way at all. People are named as Electors because they will follow directions—the last thing that any political pro wants at the Elector stage is any form of deliberation.

Even if Electors wanted to assert their independence, they can’t under the laws of most states. In Alaska, for example, Electors are required to vote for the candidates of “the party that selected them.” (Alaska §§ 15.30.020). If they try to vote independently in Utah, they are “considered to have resigned from the office of elector.” (Utah Code Ann. §§ 20A-13-301). The names of the Electors don’t appear on the ballot in most states, and it probably wouldn’t make much difference if they did. If Electors don’t show up for the meeting where they’re supposed to cast their ballots, they can be replaced immediately by the ones who do bother to show up. In North Carolina, for example, the Electors at the meeting can replace the ones missing with any other state residents, and “they shall be deemed qualified electors to vote for President.” (North Carolina Gen. Stat. §§ 163-209). If there is a vacancy in Washington, those at the meeting “shall immediately proceed to fill it by voice vote” (Washington Rev. Code §§ 29A.56.320).

It’s hard for anyone in the general public to find the names of the Electors, because no one seems to think it’s important to list their names in any public fashion. They are just names on a page somewhere—changeable on short notice or no notice at all. When someone in the media pointed out the extreme homophobia of one of the Electors chosen in Montana in the last election, the local G.O.P. Chairman just brushed off the complaint, saying that the whole Electoral vote process was just a “ceremonial function.”

An Elector System Without Electors

The current version of the Elector system is a farce, and the defenders of that system know it. When forced to admit it, they will usually fall back on the argument that each state is entitled to its current share of the overall vote even if the Electors aren’t really doing anything or functioning as originally intended. The popular vote in each state, they would argue, should be weighed in accordance with its number of Electors, even if the Electors themselves are only going through the motions. What the defenders of the system are really saying is that the Electoral College system can work just fine without real Electors. Just give us our allocation of Electoral votes, they would say, and don’t worry about what names are actually written on the paperwork.

But that argument is both cynical and wrong. There’s nothing in our constitutional history or in the Constitution itself that justifies the Electoral system functioning that way. At a time when real Electors were making real decisions about who should be President, they were acting as an intermediate layer of government. Voting for Electors in that situation could be viewed as a real election. But when the Electors are removed from the

process—or when the Electors become simply a sham—then that election loses all legitimacy. No one is voting for Electors in that situation, and the interposing of them at that point only causes serious inequality in the national popular vote. Once it becomes clear that voters are not really electing Electors to perform any important governmental function, then the system is reduced to one in which the national popular vote is counted in a way that gives the residents of one region vastly greater voting power over other voters—even when they are both voting for the same office. Without real Electors, the constitutional justification for the Electoral College system self-destructs.

One Person/One Vote

A good case could be made that the current version of the Electoral system is unconstitutional under the original Constitution—even before taking into consideration all of the important amendments adopted since the Civil War. Article II, Section 1, of the Constitution says, “Each state shall appoint” the Electors. But the states have long since stopped doing that. In each state the power of appointment has been handed over to the political parties without any selection-standards whatsoever, and the state’s appointment power has been further dissipated by allowing the Electors themselves to choose their own replacements at almost any time. On top of that, the political parties are empowered to direct the Electors as to how they should vote and can remove them if they balk at such direction. So the question before any court would be, how much further does the original system have to be undermined before it becomes clear that the state has abandoned its responsibility in appointing the Electors?

But there’s even a stronger case to be made that the current version of the Elector system is unconstitutional under the 14th Amendment. This Amendment was adopted right after the Civil War, and our entire constitutional and legislative history since then points in one direction: a recognition of the fundamental right to an equal vote. Beginning in 1962, the Supreme Court and lower courts have consistently held that everyone’s vote has to be counted equally and that the rule of “one person/one vote” applies to every election. Typical of the Court’s statements about voting rights is this one from Justice Thurgood Marshall in Dunn v. Blumstein 405 U.S. 330 (1972):

In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.”

Even a cursory look at the current Elector system shows that it produces a long litany of discriminatory effects—including unequal voting power, discrimination against minorities, and votes ignored under a “winner-take-all” system. On top of that, this distorted version of the original Elector system is extraordinarily susceptible to voting fraud and manipulation. None of these practices would be allowed in any local, state, or federal election. And there’s no reason to think that the practices should be tolerated in the most important election of all—the election of the President. It’s just a matter of time before it will have to change.

What Would Victory Look Like?

Sooner or later the Electoral College system will have to change. Now that it has shown its fangs in two recent elections, the American people will have to find a way around it if our democracy is to move forward. In the sad world of discrimination, gerrymandering, voter suppression, and other voting abuses, the Electoral College holds the dubious distinction of being the worst.

There are several ways that change could come about, but none of them is fool-proof. And none of them should be looked at in isolation either. If one method of change appears to be gathering support, it could very well nudge politicians in another direction towards a change that they might find more palatable. The use of an interstate compact to circumvent the Electoral College, as espoused by the National Popular Vote project (nationalpopularvote.com),  has been gathering support. And if it looks like it might succeed, proponents of other solutions could be emboldened. A group pushing a litigation approach is Equal Vote (equalvotes.us). Their strategy seems to be one of filing a series of cases against states on a one-by-one basis. Their goal is seemingly to make the current Electoral system untenable and unpredictable, thus forcing a political solution. Attorneys-General for larger states—like California or New York—could attack the system in a federal lawsuit, challenging the allocation of Electoral Votes because of the massive discrimination against voters in their states. And Congress itself could take action by utilizing the powers it has under Section 5 of the 14th Amendment to enforce equal voting rights—rights that the Supreme Court has said time and time again derive from the provisions of the 14th Amendment.

What proponents of change need to do is push forward and mobilize public support without being deterred by the defeatism that is so often expressed about this issue. Yes—this system can be changed through the arduous process of a Constitutional Amendment. But, no—that is not the only way it can be done. Proponents of change have the power of basic fairness on their side, and that moral energy can open up a new way of looking at things within the parameters of the Constitution.

Here’s one example: Almost all states claim the power (without any constitutional justification) to require Electors to vote for the candidate with the most votes in their state. Colorado is typical of this, saying that Electors must vote for the person “who received the highest number of votes at the preceding general election in this state.” (Colo. Rev. Stat. §§ 1-4-302). But if Colorado and other states can assert that power, why can’t Congress supersede that action by asserting a similar power under the 14th Amendment? Such a law would only have to modify one phrase and direct the Electors to vote for the person “who received the highest number of votes at the preceding general election nationwide.” Would it work? We won’t know until someone tries it.

However change comes—whether by interstate compact, a court victory, Congressional action, or even a Constitutional amendment—the language about the Electoral College will still remain in the Constitution. One of the oddities of our system is that later interpretations or even amendments don’t remove the original language. Old phrases just stay put, even though everyone knows they are no longer in effect. So although the 13th Amendment abolished slavery, the infamous “three-fifths” clause still remains in Article I as a sad reminder of that period in our past. The Electoral College will eventually fall into the same historical dustbin.