Over the past twenty-four hours, several pieces have appeared, claiming the possibility of a Hail Mary for these election results. While the polls are closed, and the nation has announced a new president-elect, the Electoral College doesn’t officially meet to cast their ballots until December 19.
How possible is this? What would be needed? How did we get to where we are? Where did the Electoral College come from? What were the Founding Fathers thinking?!
Electoral College: A History
The Electoral College: a remnant of an archaic 18th century tradition that meant the best, but has caused the worst.
At the Constitutional Convention of 1878, a system of checks & balances was put in for our checks and balances. After rejecting the ideas of either Congress or state legislators selecting the president, election by popular vote was settled. However, there was fear that general lack of information would heavily sway votes, causing the people to vote for a familiar face, or a “favorite son” of their home state, instead of a candidate who was more qualified, but less familiar. The hope was that the most informed, knowledgeable people from each state were the ones choosing This model can be seen throughout history: the Roman Republic’s Centurial Assembly, the Roman Catholic Church of the College of Cardinals selecting the Pope. With many of the Founding Fathers schooled in classical history and political strategies, the similarity of the systems isn’t surprising. However, as the population grew, technology developed, information became more readily available, and the digital age dawned, it turned from a help to a hindrance. Just as it did with the Centurial Assembly, the Electoral College became more of an oligarchic system than a democratic one.
Let it also be realized that this system was designed to work without political parties, OR national campaigns. In Article II, Section I of the Constitution, it outlines the design and implementation of the College:
- 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.
- The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.
This first design only lasted through four presidential elections, with the second design appearing after the messy Election of 1800 (Jefferson or Burr?). After the Electorates of their party gave each of them equal votes, the vote fell to the House of Representatives who, after 36 tries, finally took a vote that was cast in Jefferson’s favor. Not wanting to go through the same confusing turmoil again, the Continental Congress of 1804 hastily wrote and passed the Twelfth Amendment, which clarified that each Elector cast one vote for president, and one for vice-president, instead of the previous model, which had two votes for president, and the runner-up was given the vice president’s seat.
Political parties had, up to that point, been somewhat unorganized, however, America saw very quickly that the feud Jefferson & Burr had created solidly divided the still-young American political system into two very separate parties (despite both being of the Democratic-Republican Party). Since the amendment, several federal and state laws were passed that somewhat altered the timeline of the Electoral College votes, but by and large, it remains intact the same way that it existed after 1804. (One exception to this rule is the 23rd amendment, which granted the District of Columbia three electors.)
While all electors are chosen by voters, in many states, the names of candidates for the college almost never appear on the ballot, many times, the seats being “awarded” to persons already on the state legislature.
Across the board, electors are, in most cases, pledged to vote for the candidates of the party that nominated them to the position. However, in rare cases, individuals have refused, and voted against their party or the popular vote. These are called “faithless electors.” While there is no concrete evidence that the founders intended for the electors to be independent of any party, but it can be strongly assumed due to the fact that the original model was meant to operate without the existence of political parties at all. In fact, many scholars have the opinion that, once electors have been chose, they remain constitutionally free agents with the ability to vote for whichever candidate that meets the Presidential and Vice Presidential requirements. There are laws punishing faithless electors in 24 of the 50 states, due to a Supreme Court case in 1952, Ray v. Blair, 343 US 214, but the constitutionality of actually punishing an elector has never been decided, and electors can only be punished after the fact, which wouldn’t’ change their vote. Still, the Faithless have been few and far between, with 187 occurring in our nation’s entire 240 year history. In the 20th century alone, there have been seven, one each in 1948, 1956, 1960, 1968, 1972, 1976, 1988, and 2000- none of them swayed or influenced the outcome of an election in any way.
Electing a President:
An official election day was chosen by Congress in 1845, stopping the previous voting practice in which each state had different voting timelines spread between September & November. While not the most timely of practices, this also lead to multiple votes across state lines, and other various voting fraud practices. November was chosen out of ease for the farming population, which comprised most of America’s occupation at the time. They settled on a Tuesday because of the widespread religious practice of observing Sunday as a strict day of rest. It provided a full day’s travel, harvest was in, and travel wasn’t yet hampered by weather. While other countries around the globe have made their election days a federal holiday, or offer other tools for making voting easier, the United States has yet to update their voting process since this time.
Weeks after the general election, the electors meet in the capital of their respective states to cast their ballot. Currently, it’s the first Monday after the second Wednesday in December. This year, it’s December 19th.
Why are we still hoping on the electoral college?
Simple: They do not officially cast their ballots til December 19, leaving several weeks of assumption. At the time of the election, there were four members of the Electoral College already pledging to be faithless: Robert Satiacum and Bret Chiafalo, both Democratic electors from Washington, and Republican electors Baoky Vu, Georgia, and Chris Suprun, from Texas. Suprun later told TIME that he intends to support Trump, so that leaves three. Two Democratic members who intend to abstain from casting their vote at all, and one Republican.
If, in the Electoral College, the margin of victory comes as close as it did in 2000, any one of these men could sway the vote, making it the first time in history to happen. However, there is a series of laws in place that would simply push the process down the line of state laws and constitutional checks & balances.
First, if the Electoral College results in a tie due to an elector abstaining or switching their vote, a provision in the Twelfth Amendment mandates that the House chooses the president, with the Senate choosing the vice president. Each representative in the House casts a single vote, and the majority wins.
Second, when Congress meets on January 6, 2017, they will determine if the Electoral College vote was “regularly given,” a historically ceremonial meeting. However, this meeting doesn’t have to be ceremonial: if a single member of the House and one member of the Senate objects to the results of the Electoral College (ie: the final tally is swayed due to a faithless elector), the newly elected Congress now vote. If both the decision of the House and the Senate agree, the decision is final, and a president is chosen. If they do not agree, then the Secretary of State of the state who’s electors were faithless decides. (ie: If Satiacum, Chiafalo, Vu, or Suprun’s votes were cast in such a way that it swayed the vote, than the Secretary of State for Washington, Georgia, and Texas would make the final decision.)
The contemporary number of electoral votes stands at 538, with a candidate needing 270 in order to become president-elect. Due to the current practice of awarding electoral votes, in which a candidate receives all of a state’s vote if they gain the popular vote, the electoral college stands in Trump’s favor- 290 to Clinton’s 232, as of Wednesday evening, despite Clinton winning the popular vote (making her only the fifth candidate in history to do so). So, as it stands, the chances of the electoral college vote in December actually flipping the election is barely there.
So, in conclusion: yes, there is more to the process, but it would defy odds for actual change to happen. What this election really tells us is how outdated and archaic our voting process has become. Between our election day still resting on a weekday, widespread instances of companies threatening employees if they took time off or were late if they voted, voter repression, and the fact that it isn’t a federal holiday, many things need to change. Our democratic government’s shroud is wearing thin, exposing its oligarchical skeletal structure to the masses. The president elect is chosen not by the people’s vote, but by a group of politicians more interested in keeping their political party in power than they are gratifying the people’s issues. Unfortunately, because the electoral college is written into the Constitution, getting rid of it is far easier said than done. A two-thirds vote in both the House and the Senate, and the ratification in 38 of our 50 states would be required. It’s been tried before, and has failed miserably. Attempts in 1934, 1966, and 1979 have all failed in the legislative branch, and over the past decade, state-by-state workarounds were cropping up in local polls.
As you can see, the dislike and mistrust of the electoral college isn’t a new issue. In fact, national dislike has been at a majority for decades. A Gallup poll in 1948 said 56% were against it. That number rose to 58% in 1967, and by the next year, 80% of the national voice was against the outdated amendment. However, it’s never been successfully repealed.
Regardless of the outcome of the electoral college, we have work to do.
Between third-party voters and the outdated existence of the electoral college, we find the lost votes. Had Clinton won in the closest states: Wisconsin, Pennsylvania, Michigan, and Florida, she would have defeated Trump with 307 electoral votes, securing the presidency. (This election is an eerie reflection of how the 2000 election played out, where Florida was, once again, down to the wire.) Please note that the following statistics do not show how many of Johnson’s or Stein’s voters would have voted for Clinton or Trump in the event of the third-party candidates not being on the ballot, or how many of them would have stayed home. However, we can acknowledge that the electoral map would look decidedly different in the event they were not an option.
Florida, 29 electoral votes:
Lost by 119,770 votes, with 99% reporting.
Total number of votes for Stein and Johnson: 270,026.
Michigan, 16 electoral votes:
Lost by 11,837, with 96% reporting.
Total number of votes for Stein and Johnson: 223,707
Pennsylvania, 20 electoral votes:
Lost by 68,236 votes, with 99% reporting.
Total number of votes for Stein and Johnson: 191,565
Wisconsin, 10 electoral votes:
Lost by 27,257, with 95% reporting.
Total number of votes for Johnson and Stein: 137,422
US Electoral College, National Archives and Records Administration. https://www.archives.gov/federal-register/electoral-college/index.html
History of the Electoral College, History.com http://www.history.com/topics/electoral-college
Electoral College: Fun Stuff, Jackson County Electoral Board, http://jceb.co.jackson.mo.us/fun_stuff/electoral_college.htm
Education: The Electoral College, Votesmart.org, https://votesmart.org/education/electoral-college#.WCSBHlUrKUk
What Happens if Faithless Electors Swing the Results?, Time.com http://time.com/4560682/faithless-electors/
The One Scenario that Could Still get Hillary to the White House, New York Post, http://nypost.com/2016/11/09/the-one-scenario-that-could-still-get-hillary-into-the-white-house/
Could Faithless Electors Change the Outcome of the Election?, Bustle.com https://www.bustle.com/articles/194300-could-faithless-electors-change-the-outcome-of-the-election-hillary-clinton-supporters-cant-rely-on-them
The So-called Faithless Elector Could Decide the Presidential Election for the First Time, Washington Times, http://www.washingtontimes.com/news/2016/nov/9/so-called-faithless-elector-could-decide-president/
How Gary Johnson and Jill Stein Helped Elect Donald Trump, CNN Politics, http://www.cnn.com/2016/11/10/politics/gary-johnson-jill-stein-spoiler/
Getting Rid of the Electoral College, Washington Post,