Robbins: Proposition 113 and the Electoral College
A week from now, except for bragging and regret, it will all be over.
Although we might not yet recognize the tune — more on that in just a sec — the fat lady will have sung. There will be COVID-prompted virtual high fives, hand wringing, and a flood of commentary which, were it water instead of words, would no doubt be sufficient — and then some — to quell the East Troublesome, Cameron Peak, and Calwood fires combined. We may celebrate, or else lament, what hit us.
Five times in our history, a candidate has lost popular vote for president but won the Electoral College. What you call someone like that (so far at least) is “Mr. President.” Among the winners who have lost, you may count George W. and Trump. Two of our last three presidents have been, if you like, “linners” or “wosers” — they sorta won and sorta lost. That notwithstanding, they — and not their opponents — were serenaded on inauguration day with what must have been — to them at least — the bracing strains of Hail to the Chief.
Two of the last three, however, have set many a citizen’s blood aboil. The imbalance and perceived injustice of it all has led many a conscientious person to ask, paraphrasing the words of the late great Emily Littela, “What’s all this I hear about the Electoral College?”
Colorado Proposition 113 asks that as well. Before we dive into that though, let’s first understand the undergirding of the system. Best if you buckle up!
Not like other colleges
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. Instead, I suspect that when they get together, it is a rather staid affair.
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 thinly populated states, like Alaska, Vermont and Wyoming, still get one). There are 100 senators and 435 representatives for a total of wait … 535?
So 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 nor representatives. The smallest states (by population) have three electors. The Big Kahuna, California, which accounts for 12% of the population of these United States, 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 the root from which electors spring. Specifically, Article II, Section 1 of the 12th Amendment provides 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 the “where” but what about that pesky “why?”
Back in the day — circa 1787—the Constitutional Convention considered several methods of electing a president, including selection by Congress, by vote of the governors of the various states, by vote of the various state legislatures, and — hold on to your stiff wool breeches — by direct popular election. As the delegates had their velvet 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 with the bright idea of the Electoral College system.
The thinking was that this scheme 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. Of course, in today’s troubled times, a perhaps more valid concern is whether the Congress is, in fact, as independent of the presidency as originally conceived.
Despite the image of a “college,” there is, sadly, no mascot, no fight song, no football rivalries, nor even an actual campus. In fact, the electors don’t really 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 best known for felling Alexander Hamilton along the banks of the Weehawken, scampering off to Mexico, and trying to carve his own private fiefdom out of the southwest United States.
The second time was in 1824 when John Quincy Adams arose the victor after neither he nor Andrew Jackson emerged with a majority (although Jackson later had his day, becoming the seventh president to the one-term Adams who was the sixth).
Although perhaps they should be, ties are not broken by a game of rock, paper, scissors. Instead, if one occurs, the election is thrown into the House of Representatives to sort out but each state is given only one vote regardless of how many representatives it may have. The Golden State and Famous Potatoes have equal starchy heft.
You will note, however, that the 50 states are also divisible by two. Geesh!
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 fallout of the last election, who is “qualified” could present a rather nettlesome question.
Why is this still a thing?
Is the Electoral College still relevant? Prop 113 asks that very question. What it proposes, specifically, is for Colorado voters to affirm or else repeal the legislature’s 2019 decision to join the National Popular Vote Interstate Compact. That Compact would — at least in theory—relegate the Electoral College to the dust bin of history.
But that’s, um… theory. If 113 passes, what happens for now at least is, ah … nothing. The National Popular Vote Compact will only take effect once states with at least a combined 270 electoral votes — the number required to win a presidential election — sign up to march in this particular parade. At that point, barring successful legal challenges, the winner of the most votes across the country will henceforth claim the electoral votes of all the states in the compact and, therefore, win the election.
In short, Prop 113 is the first step in a potentially long journey. Whether the (some would say) laudable goals of 113 ever come to fruition is at best uncertain. What is clear, however, is that the Electoral College is embedded like a thistle in the Constitution. Will it one day be extricated? Perhaps. But don’t hold your breath. Changes such as that proposed generally evolve in glacial time.
Whether the Electoral College still fulfills its original design remains an open question. Whether it remains relevant can be endlessly debated. Like it or not, this time around at least, it is a process by which we will choose our next president. Whether it will be kicked to the curb thereafter only time and the collective resolve will ultimately tell.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970-926.4461 or at his e-mail address: Rrobbins@CELaw.com. His new novel, "How to Raise a Shark (an apocryphal tale)", is available at Amazon.com.
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So very disappointed to see the photo of the Children’s Garden of Learning sculpture being carried away making the displacement of the school so final. Reminds me of 1980 when we lost our Donovan’s Copper…