Bypass the Electoral College?

Wayward Fundamentalist Christian has a post about a movement by some states to bypass the Electoral College. This would be accomplished by a simple expedient that I had never thought of–state laws awarding their electoral college delegates to the winner of the national popular vote. (Here’s a NYT reference for those who may prefer that source to the WorldNetDaily.)

I hate to imagine the legal activity that would take place were enough states to vote this particular change, especially if we had a candidate who won the college, while another candidate won the popular vote. The Supreme Court would be stuck deciding who would be the next president.

I am a great fan of the electoral college, as it was intended to function and as it functioned–once, if I recall correctly. After that it has deteriorated. The original purpose, in part, was this, according to Alexander Hamilton, in Federalist #68:

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.[Source: Alexander Hamilton Defends the Electoral College in Federalist No. 68]

There was also the intent of blunting somewhat the power of very populous states and increasing the power of less populous states. The framers of the constitution were not much in love with popular majority. They wanted a government with a basis in the people, but they also included limits on the power of a simple majority of the people.

At this point, the idea of the electoral college as a deliberative body that chooses a well-qualified president is dead. With delegates committed to particular candidates by the popular vote in their states, the only chance there would be for the electoral college to actually do its job would be if nobody got a majority. They could do some negotiating to see if they could keep from sending the election to congress.

As for the route of bypassing, I’ll have to say I’m against this approach. I think it could easily put the presidency in a dangerous state of uncertainty in a future election. It would be much better–I think nearly essential–to change the electoral college through the appropriate means of amending the constitution. Personally, I fail to see the need and wouldn’t support such a change, but if it was done by constitutional amendment, at least there would be no conflict following an election under those rules.

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  1. Henry, thank you for this post; my husband and I were just discussing this initiative on our Montana ballots – whether or not it would appear.

  2. The EC is not the product of sacred inspiration from on high. It is nothing more than the result of political calculation reflecting concession to the sectionalism that characterized the early days of our Republic. As well it reflects both a distrust of and a desire to restrain the power of the popular vote. It serves to defraud the will of the majority of voters in a presidential election. The political process would be better served if it were relegated to the attic.

  3. Mr. Neufeld,

    The U.S. Constitution gives each state authority to determine how electors will be selected. Therefore each state has unlimited constitutional authority to let its legislature select the electors.

    Were each state to pass legislation that authorizes an election which did not itself select electors, but whose results were binding on the state legislature in its selection of electors, then there would be no grounds for the legal activity of which you worry.

    However there would still be no absolute guarantee that the electoral college would follow the popular vote. For one, the smaller states are overrepresented in the electoral college, on a population basis. Second, states that granted all their electoral votes to one candidate, rather than splitting them proportionately based on the vote, would still cause a distortion between popular vote and electoral vote.

    But furious legal activity would certainly not be an attendant consequence, whatever the outcome, because such a plan would be wholly constitutional.

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