Robbins: Why the Electoral College exists and what it does
It happens every four years. No, it’s not cicadas. It’s the presidential beauty pageant. And this one promises to be an unleashed 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 neatly manicured lawns, ivy scuttling up ancient brick, and a fancy multi-cultural 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 back to … um … the last round of the presidential derby when Hilary won the popular vote but The Donald mounted the west front of the Capitol and laid 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?!
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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 still relevant? Should it be disposed of in the dustbin of history? And, oh, yeah, if it’s time to rid ourselves of it, how would we go about it?
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 sparsely-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 or 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 United States Constitution, anyone may serve as an elector.
The Constitution is the yolk from which electors come. Specifically, Article II, Section 1 of the 12th Amendment 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 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 breeches now — 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 independent of this presidency. But I digress …
A college in name only
Despite the image of a “college,” there is, sadly, no mascot, fight song, or even an actual campus. In fact, the electors don’t really convene in any traditional sense. Instead … bummer … 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 in a duel, running away 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 emerged 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).
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 the 50 states are also divisible by two. 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 affair.
Do we still need this thing?
Is the Electoral College still relevant? You decide. It does appear, however, that which way you tilt may depend on how it affects the fortunes of your particular candidate. What is clear, however, as the Electoral College is embedded like a thistle in the Constitution, the only way to excise it would be by 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. Like it or not, it is the process by which we choose a president and to disgorge it would take a level of cooperation that seems unlikely in these highly fractious times.
Next up in the column queue: “superdelegates” and what sort of species in God’s green earth a superdelegate may be.
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, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, email@example.com.
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