Although the presidential election is now over, with the “vote” in favor of the Republican candidate Donald Trump, the electoral college must still meet to vote on, and certify, that Donald Trump is the President-Elect of the United States. Although many consider it a needless formality, since the electoral college count is known – often before midnight, and indeed before the polls are closed – then why bother with the needless formality of meeting in December to certify what the nation has known all along?
WHAT IS THE ELECTORAL COLLEGE?
The Electoral College is not an institution of higher education; nor does it have a specific location that can be found on a map. It is a government body created by the United States Constitution, consisting of “qualified voters” (electors), whose purpose is to confirm the election results of the U.S. Presidential election. It is based not on the popular vote of the nation as a whole, but on the popular vote within each individual state, factored upon the number of congressional representatives and senators (the “electors”) to which each state is entitled. Every state is entitled to a minimum of three electors: two senators, and one House Seat. California, the nation’s most populous state, has 54 electors (2 Senators and 52 Congressional seats) .
The candidate that wins the popular vote in a particular state is “awarded” all the state’s electoral votes, (i.e., if candidate X wins the popular vote in California, candidate X is awarded 54 electoral votes). The electors of the Electoral College then cast their own votes based on their own state’s Election Day results. The Electoral College consists of 538 Electors, two for each of the fifty states’ elected Senators (100); 435 Representatives in Congress, and three Electors from the District of Columbia. To be elected President, winner must receive a minimum of 270 votes in the Electoral College.
A REPUBLIC, NOT A DEMOCRACY
Contrary to conventional wisdom, the first important distinction to note is that the United States is a republic, not a democracy. Democracy is egalitarian, constituted by majority rule, determined by simple majority vote for its chief executive, as an expression of direct rule by the people. Democracy speaks little about self-government, neither government controlling the governed, nor the government controlling itself. These ‘gaps’ are all answered for in federalist responses to democracy’s lacuna oversights – the most important of which constitutes the process of selecting the chief executive – the college of electors (later referred to as the Electoral College).
REPUBLIC DEFINED
So that we are all “talking on the same page”, let us all make sure that when we speak of apples, that we are not talking about oranges. When I use a word, as Lewis Carroll tells us, it will mean what I take to be either an authoritative definition or a common understanding of the meaning of a word. To illustrate, I will use the word Republic as defined by James Madison in Federalist Paper No. 39. The future fourth president of the United States described a republic as a government which derives all its powers, directly or indirectly, from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. In addition, a republican government is a representative (indirect) democracy. As a federal form of government, powers are widely distributed. Likewise, voting “blocs” are distributed far and wide, and each of the forms of government – executive, legislative, judicial – maintain their integrality and integrity through separation from each other, and the separation of states’ sovereignty from the powers of the national government.
… DERIVES ALL ITS POWERS, DIRECTLY OR INDIRECTLY …
A republic is both direct and indirect rule by the people. The authors of the United States Constitution wanted to create a republic. They believed that no other form would be reconcilable with the principles of the revolution, which rests on the notion that a republican form of government is the best model that makes it possible for self-government. It is considered best, for many reasons that have to do with the essential character of the nation.
It is sufficient for such a government, that the persons administering it be appointed, and that they hold their appointments, either directly or indirectly, by the people. Constitutionally, the method by which electors were selected was left up to the individual state legislatures. Most legislatures selected the electors themselves, though a few selected electors through a direct election by the people. In Federalist Paper No. 68, Alexander Hamilton explained that this method would ensure that the President is chosen by men most capable of analyzing the qualities needed in a chief executive to govern a large and diverse population of assorted sizes and sovereignties.
The president is not directly elected by the people. The president is directly elected by a specially constituted electoral college. In Federalist Paper No. 39, Madison argued that the Constitution was designed to be a mixture of state-based and population-based government, deriving its power from the great body of the people.
…FROM THE GREAT BODY OF THE PEOPLE FOR A LIMITED PERIOD
The ”great body of the people” has generally been held to include all* citizens of voting age. One of the key advantages to the Electoral College is that the electors come directly from the people, for that purpose only, and for that limited time only. This avoided a party-run legislature or a permanent body that could be influenced by foreign interests before each election. The election was to take place among all the states, so no corruption in any state could taint “the great body of the people” in their selection. And although the House of Representatives is readily considered as the most exemplary manifestation of the great body of the people, that is, it is elected immediately by the great body of the people, the electoral college election serves as a safeguard to the concentration of power in one place for the selection of the president. The choice was to be made by a majority of the Electoral College, scattered among the several states. This form of majority rule is critical to the principles of republican government, as it precludes federal officeholders from serving as an elector, none of the electors would be beholden to any presidential candidate.
*All citizens are only those that are presumed to be of “good behavior”. For citizens of “low character” constituting less than “good behavior”, there are many sanctions that preclude such citizens from voting in either (or both) state and federal elections. For example, convicted felons, those currently serving time for other types of crimes, those with a statutorily defined mental disability, unlawful possession of a firearm, etc.
A small number of persons, selected by their fellow citizens from the general population, will be most likely to possess the information and discernment requisite to serve as electors. The choice of several places to form an intermediate body of electors is less likely to disrupt the proceeds of the electoral college. When the electors, chosen in each state, assemble and vote in their respective state capitals, they are so detached in space and time, that cabals are less likely to form under so regulated an institution as the electoral college.
THE ELECTORAL COLLEGE: JUSTICE AS FAIRNESS
As I proceed to lay out the reasons why a republican form of government is best suited to the people of the United States, it is befitting at this point to introduce evaluative, normative concepts, such as fairness, justice, equality and workability. As I shall demonstrate below, the special character of the American experience, with its diversity of sovereignties and sectional loyalties, found broad support among northerners and southerners, federalists and republicans, agrarians and industrialists in establishment of the electoral college within the U.S. constitution. The electoral college is present in every state, in which votes are tallied from every state, in which every state ‘awards’ all its delegates, in unison, to the electoral total, as an act of state sovereignty as its contribution to legitimizing the selection of the president.
Almost immediately after Rhode Island became the thirteenth – and last of the thirteen original “free and independent states” to ratify the constitution, grievances** against its unfairness abounded: the three-fifths compromise awarded to the slaveholding states; winner-take-all electors awarded to heavily populated states with large cities of urban workers in industrialized enterprises; small states with just three electors: one representative in the House, and two senators (for which all states are entitled), which bespeaks marginal influence in selecting the president; population migration southward and westward in search of new lands, thereby diluting control of federalist power to their power base in the northeast, especially New England. Sectional and secessionist movements were already aborning before the nineteenth century, which, for the most part, contained none of the acute partisanship of the morality of slavery. That would come later, with Manifest Destiny, the Mexican War, and secession from the union when the electoral college certified Abraham Lincoln as President-Elect – despite his name not even appearing on the ballot in ten southern states.
**For Americans, grievances are like annual grasses that are widely naturalized in North America as weeds that clutter lawns and agricultural fields. This “crabgrass” grows like newfound grievances – the more heat they get, the more they spread.
Despite three controversial election results aroused by the electoral colleges in the nineteenth century, it was not until John Rawls published his classic oeuvre on political philosophy, A Theory of Justice (1971), that the electoral college could serve as a basis for rigorous philosophical analysis. As a prolegomenon to his overall theory of justice, Dr. Rawls states that the first principle of justice is fairness.
To ‘test’ whether a system is fair, Professor Rawls urges us to put on our thinking caps and begin a thought experiment on the merits and justice of the electoral college. Imagine you are in Philadelphia in 1787 and was appointed the task of developing a plan to select a president. Now imagine you are here in present day 2024, and have been asked to reassess the value of the electoral college: whether it has served the country well as a moderating influence in times of tyranny; whether it should be modified aggiornamento; or whether it should be scrapped in favor of direct popular vote.
To begin the experiment, we shall make a presumption that you may have heard of the electoral college; that you understand how it “works”; and that you are familiar with scenarios where the president-elect may win the popular vote, but lose the electoral college count, hence losing the presidential election. Under a “veil of ignorance”, you do not know which of the 50 states is your “home” state. This is your ‘original position’. You are then asked to consider which principles are the most important in selecting a president. But an important proviso is warranted here: your veil of ignorance prevents you from knowing your ‘home state’. With these provisos in mind, you devise electionary principles. Examples and scenarios abound.
- The president is elected by popular vote [50% +1], regardless of their diffusion or concentration;
- The president is elected by popular vote [50% +1], and the majority of electors;
- The president is elected by popular vote [50% +1], the majority of electors, and the majority of states;
- The president is elected by the electoral college, without winning the popular vote.
- The president is elected by the electoral college, with majority vote in each congressional district.***
***Example. State X has six electors [two senators, four members in the House]. Winning ticket consists of Party Y winning the popular vote statewide, and Party Z wins popular vote in Congressional District No.1, while Party Y wins popular vote in each of the three remaining congressional districts. State X would certify five votes for Party Y’s candidate [two senate electors for statewide popular vote, and three of four congressional districts – each by popular vote]; Party Z’s candidate receives one electoral vote for Congressional District No. 1.
This choice is made from behind a “veil of ignorance”, which prevents one from knowing her place or situation. Would you be happily enfranchised if, in 1790, you lived in Rhode Island, where your state’s 1 electoral vote would very, very unlikely affect a presidential election where 33 (out of 65) electoral votes would be sufficient to win the election? Would a voter in a populous state, such as Virginia, with 10 electoral votes, feel fully enfranchised due to ‘strength in numbers?’ And would not a prudent candidate spend much more time campaigning in Virginia, than he might do in Rhode Island, especially if the winning candidate needed to receive “just” 50.1 % of the Virginia ballots cast, but secures 100% of the state electors? Does this latter amount discount the importance or contribution of the 49.9% of the state’s popular vote that voted for the losing candidate?
The above totals did not factor in the two electors for each of the states’ two senators. When factored in, Rhode Island’s one electoral vote now becomes three. Virginia’s ten electoral votes now become twelve. Rhode Island increased its electoral count from 1 out of 65 – to 3 out of 91 [65 House seats + 26 senators]. Rhode Island’s ‘presence’ in the electoral college more than doubled: from 1.5% to 3.3%; while Virginia’s ‘presence’ in the electoral college declined from 15.4% to 13.2.%. The ‘takeaway’ here is that while large states have disproportionate ‘clout’, attracting disproportionate attention from the candidates, the smaller states are accommodated with smaller populations in their qualifications for electors.
THE POPULAR VOTE: EQUALITY AS INJUSTICE
Fairness, justice, and equality need to be factored together for a combinatorial analysis to evaluate whether the electoral college expresses the will of the people, which I distinguish from democracy’s exaltation of the will of the majority, which does justice to majority rule. But is it fair to minority voters that may cast supermajority votes in underpopulated states, while compiling impressive turnouts in heavily populated states like Texas or Florida, garnering 48-49% of the popular vote totals, while collecting 0% of the electoral college vote?
Is presidential selection through the Electoral College the best**** form for choosing the president that will protect rights of minority voters in states both great and small, and interstitial communities in small and large states alike? What are its benefits? The merits of the college – as fairness, justice and equality; demerits of the popular vote for president over that of the electoral college; and other issues that are almost always raised in years of close races that are paraded as distractions and as talking points by losing parties will be discussed below.
****In another context, American Historian Stephen Ambrose describes the aftermath of peace in Europe after the Second World War. No final peace conference was established to settle reparations or fix boundaries of a post-war Europe. Neither the Western Allies nor the Soviet Union could agree on a fair, just, and workable solution to the role of a new Germany in the family of European nations. What Germany, the West, and the Soviet Union received was a ‘solution’ that was neither fair, nor just, nor workable. Rather, what resulted can be described as unintended, unwelcome, and permanent***** – division of Germany along the Elbe River between Western Zones of occupation and the Soviet eastern zone. Dr. Ambrose referred to this as the best solution, in which concepts such as fairness, justice, and workability would be inapplicable. Despite losing the war and having its territory dismembered, Germany still remained as the “key” to establishing a peaceful, prosperous postwar Europe.
***** until October 3, 1990 – German Unity Day
Turning our attention back to the United States, the American solution in electing the president through the electoral college does not only receive high grades for fairness, justice, equality, and workability, but has proven to be the system best-suited to America, especially Americans’ penchant for local rule, bound by mystic chords of memory fostering regional, sectional pride, and national loyalty. But why that is the case – the best case – for endorsing the electoral college, I will discuss below.
RATIONALES FOR THE ELECTORAL COLLEGE
Rationale No. 1: Small states designated with just 3-4 electors can provide a winning electoral margin of victory for a candidate, investing small states with the power to affect election outcomes.
In ‘winner-take-all’ electoral systems, every state ‘counts’ in the electoral college, in which every state, no matter how small, is worth the attention of a campaign visit by the presidential candidate in search of votes. To illustrate: in the 2000 presidential election, the electoral college final tally was 271 for Republican George W. Bush and 266 for Democrat Al Gore. If just one of the following three states with four electoral votes each – Idaho, Nevada, and New Hampshire – ‘flipped’ from the Bush column to the Gore column, that would have changed the electoral count to 270 for Al Gore to 267 for George Bush. Such do the fate of nations turn on small insignificant agate points of dispute.
Rationale No. 2: Small states disproportionately contribute to the nation’s agrarian output and energy production.
Idaho and Nevada – each with four electoral votes; and the states of Alaska, Montana, North Dakota, and Wyoming – each with three electoral votes, despite their small size, have significant mining operations and are large contributors to the nation’s energy output. California’s outsized agricultural output is a result of federal policy on water resource allocations away from sparsely populated states in the Colorado River basin. Texas’ equally outsized agricultural economy benefits from the North American continent’s dominant waterway – the Mississippi River – and as one of several states of the Great Plains that can tap the continent’s huge underground water table, the Ogallala Aquifer. Perhaps Mark Twain’s remark about ‘whiskey is for drinking; water is for fighting’ is not far from the mark.
Rationale No. 3: Winner-take-all electoral vote tallies hinders proliferation of small, splinter parties from sprouting up every four years.
The existence of a number of small, exiguous – often single-issue parties – tend to proliferate in direct election proportional representation systems, as well as in systems that directly elect the chief executive by the whole of the people as individual voters. Multi-party democracy consists of endless wrangling to build ad hoc, almost ephemeral coalitions, unable to legislate effectively. It begets the Scylla and Charybdis of weak executive rule, or executive rule that ignores the legislature by ruling through executive order and decree.
This does not preclude potential shakeup of America’s existing two-party order. Third parties and their presidential candidates can be serious challenges to the existing duopoly of a two-party system, when a pressing issue facing a nation is ignored by the two major political parties. Alternative parties will form around that issue. In the 1850s, the Democrat and Whig parties both lost political capital by ignoring slavery as a moral issue. The Whig party, a sectional party organized around national economic conditions, went into eclipse, to be supplanted by a new party, the Republican Party, determined to make slavery the moral issue of its time.
REFUTATION OF THE POPULAR VOTE
Proposition no. 1: Swing states are given too much attention in national campaigns.
Refutation: Swing states are those states that are considered “key” to winning a national election, in order to compile the magic margin of securing at least 270 electoral votes in the Electoral College. They are considered ‘competitive’ because the election is considered “too close to call”, i.e., public opinion polls and surveys of likely close races do not indicate a “favorite”; or likely winner.
Swing states have significant populations – usually constituting at least ten electoral votes each – to make campaign visits to the state a priority. They tend to reflect, in miniature, the diversity of the nation in its demographics, industrial base, and levels of urbanization/suburbanization. They tend to include states in the industrial heartland, such as Pennsylvania, Ohio and Michigan; and states in the South (e.g., Florida, Georgia) and Southwest (e.g., Arizona, Nevada) receiving migrants from the north central, Great Lakes region of the country. [Note. Three of the four largest states – California, Texas, and New York – are not “competitive”, due to the relatively large margins of victory for the Democratic Party (California, New York); and the Republican Party (Texas).]
Proposition no. 2: Small states have the Electoral College stacked in their favor, assigning an unfair number of electors to smaller states.
Refutation: If the electoral count was based solely on the one person/one vote principle, equal to the electoral count, would give California almost 70 times more electors than the least populous state, instead of the present 18:1 ratio. This is a fairness issue. Otherwise, their votes would count for little under an avalanche of California votes.
Proposition no. 3: The electoral college does not meet constitutional standards for a democracy, which specifies the winner to be the candidate with the most votes as President-Elect.
Refutation: The United States Constitution is for a republican form of government, not a democracy. As a republic, the U.S. form of government is federal, not national. As federal, the U.S. is a union – a confederacy of sovereign states. A national government, on the other hand, is built on consolidating non-sovereign states into a national, centralized government.
In a federal system, “the people” are not the sum of individuals of one entire nation; but refer to the people in the states to which they ‘belong’, and from which every state derives its authority – from the people themselves.
CONCLUDING THOUGHTS
On matters of justice, which is the subject of this blog, I assume that the foundation of justice is fairness, and secondarily as equality. As a virtue, justice is the quality of character that men and women possess, enabling them to discern what justice requires, and what justice permits. Justice is not an egalitarian prepossession, nor is it about an unpredicated equality. In other words, to say that you believe in equality, I should respond in what particulars are we equal? Life, liberty, and the pursuit of happiness are good places to start, as declared in the American Declaration of Independence “among other inalienable “rights”’. Knowing what justice permits and requires is not so much a guide to action, but cultivating the habitual disposition of the will to render everyone we encounter their rightful due. This does not mean that everyone is treated the same. But it does mean that all deserve to be treated with respect and dignity.
Aside from ascertaining the merits or demerits of various electioneering and voting systems, it may be, as a matter of evaluation, that methods use to cast and count votes are matters of taste (de gustibus non est disputandum) – “in matters of taste, there can be no dispute.”
The debate about electioneering and voting are matters of concern primarily not about fairness and equality. Rather the issue of voting for the President of the United States requires close scrutiny of electioneering ethics that can make or break the integrity of voting systems and the validity of voter registrations. Jimmying vote totals to favor preordained outcomes, voter suppression, failing to overhaul voter rolls periodically, lack of a nationwide identification standard for voter registration, and the absence of paper trails, (i.e., paper ballots vs. voting machines), which obscure audit trails – all these matters need to be addressed. Whether you consider America a republic or a democracy, it won’t matter much, should citizens lose faith in the civic glory of exercising the voting franchise.
