America does not have a national election. We have a national election day.

POSTED ON Sep 08th 2016 BY LESLIE LOFTIS UNDER Law, Politics

I’m invoking spousal privilege of a sort to swipe husband’s post from Facebook. Some Electoral College law geekery in response to the great Rivkin/ Grossman story on the Electoral College in the Wall Street Journal and related to my America Watch intro today.


A colleague sparked a debate in March of this year with this comment “The reason the founding fathers designated the Electoral College as the elector of the President, was in hopes that they would become a thoughtful deliberative body that was not beholden to Congress, etc. and would use wisdom and judgement in selecting the head of the Executive Branch”. A dear, but hard left friend doubted that; he was still an opponent of the EC, well, because Bush (he still suffers from Stage 3 BDS). He hadn’t got the memo from “I’m With Her” that the new view was pro-EC, because otherwise Herself’s margin ain’t looking so good.

Anyway, there’s been a fair amount of poor reporting about the EC. So, here’s a short note on things about the EC that most don’t know or ignore because it is politically inconvenient.

My colleague’s statement of purpose comes pretty much straight out of Federalist No. 68 – one of three primary goals that are identified. Rivkin and Grossman have explained the first idea: that the Electors would be able to prevent a person from becoming President by populism and demagoguery. The EC was intended as a check on the potential for a popular tyrant or demagogue. The Founders had read their Roman history, you know. The second was to ensure that smaller states, as the political sovereigns, retained an important role in the process. The third purpose was to avoid having a standing body in a single location that could be lobbied or influenced in the periods between elections (we’re looking at you, Congress).

The point that a lot of people miss is that Presidency is not a popularly- or nationally-elected office, and it was never intended to be so. It is a National office. But it was – and it remains – a National office filled by the States. Each state is allocated Electors and each State determines how those Electors will be selected. (But not, as the WSJ article points out, how they must vote.)

The rules on Electors highlight the role of the States in the selection of the President and Vice-President – see Art. II, section 1 and the 12th Amendment:

· Electors are determined “in such Manner as the Legislature” of each State “may direct”.*

· Electors may not be federal officials (note: state officials are ok, just not federal ones).

· Electors “shall meet in their respective states” – i.e., not in Washington. They meet, vote and send the ballots to the President of the Senate. No lobbying at the federal seat, thank you. **

· If no one gets a majority for President (or Vice-President), then the House (or Senate) chooses from among the 3 (or 2) leaders in the Electoral vote – i.e., the Congress may only select from those candidates voted for by the States. And the part that always seems to get lost….

· The House votes by State, with each State getting 1 vote (and there are quorum and majority rules for that vote, all intended to make sure that each State has a voice). Idaho and Nebraska have the same vote as New York and California – and that is not a bug, but a feature, in our federal system. If there is no majority in 2016, well, it will be interesting in the House.

Can you say #GodBlessMadison?

There is in fact no provision whatsoever in the Constitution for a national vote for President. The only Constitutionally provided date and vote is the date for “chusing” Electors in the manner that each State provides and having those Electors vote for the two offices on that date.*** The Constitution does not require that a popular vote be held at all – indeed, a State could by statute provide that, on the appointed date, the Legislature will select that State’s Electors with no other instructions whatsoever. Those Electors would then be free to vote in the College for whomever they decided to (and in the manner specified in Article 2 and the 12th Amendment). That was in fact how it was done in earlier years, although all States now have a system of “chusing” Electors by popular vote.

The only conclusion you can reach from reviewing the EC provisions of the Constitution is that this important National event is one in which the States choose a President. This illustrates why various anti-EC ideas, such as the awful National Popular Vote arrangement, are deeply and directly contrary to the fundamental structure of our political system.
*This was one of the keys to the complex Bush v Gore decision in the Supreme Court in 2000. The Court ruled 7-2 that the Equal Protection Clause did not permit different recount methods for different counties in Florida (and thus different persons) and 5-4 that the Florida Legislature was the sole authority for determining the method of Florida’s selection of Florida’s Electors and that the Florida Legislature had determined to comply with the deadline in 3 USC §5, and the Florida Supreme Court had no power to alter that process, and thus terminated the recount. The people of Florida could affect that process through their elections, but the power to change Florida’s system of selecting Electors rested solely with Florida’s Legislature. That is a clearly correct statement of the Constitutional system.

** Yes, delicious irony: Al Gore was the official who, as VP and thus the then-President of the Senate, counted the votes and helped certify the election of George W. Bush. I could watch that C-Span moment forever and never tire of him reading Florida’s ballot on the floor of the Senate. At least Nixon had the grace not to challenge Illinois or Texas in 1960 and to resign when the party told him he’d lost Congress; Gore should be ashamed for what he did to the country.

*** Even the federal statute on Presidential elections acknowledges that nearly everything about the conduct of the election is a State matter. Federal law governs the reporting of results and the conduct of the official election in Congress.

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