Vail Daily column: Is the Electoral College still relevant? | VailDaily.com

Vail Daily column: Is the Electoral College still relevant?

Rohn K. Robbins
Vail Law

It happens every four years. No, no, it's not the one-fifth-term cicadas. It's the presidential election. And this one — most will agree — was a doozy.

What accompanies the presidential election, like clockwork, dissembling, and hair-pulling, is a fair dose of head-scratching. "What's this I hear about an Electoral College?" What is it? Where is it? Does it have manicured lawns, ivy crawling up ancient brick and a fancy dining commons?

Some years, the Electoral College seems more important than others. Think 2000 when Al Gore bested George W. Bush in the popular vote, but W still became the president. Think … um … just a couple of weeks ago when Hilary Clinton won the popular vote but The Donald will be mounting the west front of the Capitol on Jan. 20 to lay his hand on the Bible. Five times in our history the candidate who won the White House was not elected by a majority of Americans. How can this be? It can be because of the Electoral College.

What then is the Electoral College? Where did it come from? Why did it arise? Is it relevant in 2016? Should it be dissolved? And, oh, yeah, if it's time to rid ourselves of it, how would go about it?

When you are voting for the president, you really aren’t. What you are voting for is presidential electors. Taken together, the electors comprise the Electoral College.

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WHAT YOU ARE VOTING FOR

First a news flash. When you are voting for the president, you really aren't. What you are voting for is presidential electors. Taken together, the electors comprise the Electoral College. Sorry, no keggers at Phi Sigma Kap on Friday night. There are 538 of them which is why it takes 270 — more than half to win.

Why 538? Why not, say, a round 500? It's because electors total the combined number of senators (two per state) and representatives (roughly one per 750,000 population — although teensy states still get one even if their population is less than 750,000). There are 100 senators and 435 representatives for a total of wait … 535? Where do the other three electors come from? Washington, D.C. Three electors were snuck in under the skirts of the 23rd Amendment even though D.C. has neither senators or representatives.

The smallest states (by population) have three electors. The Big Kahuna, California, has 55. Aside from members of Congress, and persons holding offices of "trust or profit" under the Constitution, anyone may serve as an elector.

The Constitution is where electors come from. Specifically, Article II, Section 1 of the 12th Amendment which provides, in relevant part, that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

That's there "where" but what about the "why?"

It's complicated.

A HISTORY LESSON

Back in the day — circa 1787 — the Constitutional Convention considered several methods of electing the president, including selection by Congress, by vote of the governors of the various states, by vote of the various state legislatures, and — hold on now — by direct popular election. As the delegates had their knickers in a bunch and were unable to decide, the matter was ultimately referred to the "Committee of Eleven on Postponed Matters," which came up the Electoral College system. Voila!

The thinking was that this system would reconcile differing state and federal interests and still provide a degree of popular participation in elections. It was thought too that an Electoral College would give the less populous states greater "voice" and would preserve the presidency as independent of the Congress.

COULD THEY TIE?

Despite the image of a "college," there is, in fact, no campus. In fact, the electors don't really even convene in any traditional sense. Instead, the electors assemble in their respective states and cast their ballots as state units, rather than meet at a central location.

You'll note that the number of electors is divisible by two. As such, there may theoretically be a tie. Has it ever happened? Yup. Twice. In 1800 Thomas Jefferson tied Aaron Burr. Jefferson, as you might recall, became a rather distinguished president and Burr is perhaps well known for killing Alexander Hamilton in a duel. The second time was in 1824 when John Quincy Adams emerged the victor after neither he nor Andrew Jackson emerged with a majority of electoral votes (although Jackson later had his day, becoming the seventh president to one-term Adams who was the sixth).

Ties are not broken by a game of rock, paper, scissors. Instead, if a tie occurs, the election is thrown into the House of Representatives to sort it all out but each state is given only one vote regardless of how many representatives it may have. You will note that 50 is also divisible by two and if there is a tie in the House … well that's a little sketchy.

Since each elector must vote for both the president and vice president and, if the vice president does not have a majority, picking a vice president goes to the Senate to decide. Presuming the Senate settles on that matter, if the House does not agree on who the President should be by Jan. 20, the vice president becomes the president. For how long? Well, the 12th Amendment (which was somewhat modified by the 20th Amendment) which, as I noted before controls this stuff, ain't exactly clear. All it says is "until a person 'qualified' to occupy the presidency is elected to be president." Yikes! Considering the allegations and cross-allegations this election, who is "qualified" could present a nettlesome affair.

Don't hold your breath

Is the Electoral College still relevant? You decide. It does appear, however, that which side you're on may just depend how it affects the fortunes of your particular candidate. What is clear, however, as the Electoral College is embedded in the Constitution, the only way to oust it would be through a Constitutional amendment, which would require a three-fourths vote by both the House and Senate and ratification by two-thirds of the states. Don't hold your breath.

Whether the Electoral College still fulfills its original design remains an open question. Whether it remains relevant can be endlessly debated. What is clear is that it is the process by which we chose a president and, like it or not, to dislodge it would take a level of cooperation that seems unlikely in these fractured times.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached at 970-926-4461 and at either of his email addresses, robbins@slblaw.com and robbins@colorado.net.