An Overview of the Electoral College
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An Overview of the Electoral College

September 21, 2019


♪♪Music♪♪ Why don’t presidential candidates visit North Dakota? (Laughter) No offense to North
Dakota and I am sure the President, presidential
candidates don’t want to offend them but there is a reason why
they don’t visit North Dakota. And in this lecture I want to
talk about the Electoral College. Certainly a unique system a
unique mode of electing ah anybody to office, but a strange
one too and I hope though, that in this lecture I can help you
understand machinations the mechanics of the Electoral
College, but also maybe suggest how other fundamental
constitutional principles can be seen in the working of the
Electoral College. Though at the end of the lecture
I want to suggest that there might be a little bit of a
tainted history to the college itself. This is what James Madison said
in Federalist #68, in the Federalist papers about the
Electoral College. He said, “The motive appointment
of the Chief Magistrate of the United States is almost the only
part of the system of any consequence which is escaped
without severe censure. But which has received the
slightest mark of approbation from opponents. I would venture somewhat
further”, Madison went on to say, “and hesitate not to affirm
that if the matter of it be not perfect, it is at least
excellent. It unites in an eminent degree
all the advantages of the union which were to be wished for.” So, at least Madison claims, in
the federalist papers, which we always have to take a close look
at because they were editorials written in New York newspapers
to convince delegates to the New York state ratifying convention
to accept the constitution, but Madison suggests that the
structure of the Electoral College, during the convention,
didn’t really receive a lot of censure. In other words, there wasn’t a
lot of disagreement about choosing this mode of election. This kind of operation for the
selection of our Chief Executive. So one thing that we need to
understand about the Electoral College, from the perspective of
those who are framing it, that aside from the fact that they
mostly agreed that this is a very good system, they had
significant concerns about the nature of the Executive Branch
itself. Significant concerns about the
Presidency that the Electoral College represents. In other words, the Electoral
College, in the framers mind, was designed to produce a
winner, a President that would have a certain quality to him
that was unique to the executive branch. Which they absolutely supported
because they created the executive branch during the
convention, were worried about. And it is understandable they
would be worried about the executive branch. When you look at your little
pocket copies of the constitution, you see that right
after the Preamble we have the first article. The first thing you would see. It was like a sheer genius
market marking genius. The geniuses the founding
fathers were. The first thing you see is the
Peoples Branch and all the roles and procedures that create and
constitute Congress. You don’t see first the
Executive. Why would that be? Well just a decade a half and
before we had fought a war, a Revolutionary War, against a
monarchy. So to have a single executive
was, to the anti-federalist especially, something that was
very worrisome. You don’t see it first in the
constitution when you look at it, it’s not the first thing you
see. So again, they weren’t against
an Executive, the founders thought it was absolutely
necessary, and a single one at that. There were proposals to have a
committee of executives but they decided against that. So there were concerns though
that the executive could be monarchical or that at the very
least we need to create a system for choosing our executive that
was unique to the special concerns of the Presidency
itself. The kind of winner that we
wanted. So, again there were two more
concerns though. Aside from the concern the more
marketing like concern about having people think the
Executive Branch was a Monarchy. And that was to prevent
corruption. In other words, to prevent not
necessarily corruption in the Executive Branch, although that
would be, if we produced the right choice, the odds of
corruption would go down. But they meant corruption in the
selection of the executive himself. So, this is what Madison said
about the Electoral College being able to prevent this. He said “Nothing was more to be
desired than that every practical obstacle should be
opposed to cabal, intrigue and corruption. Right? So whatever kind of system we
would have we want to prevent cabal, intrigue and corruption.” He went on to say, “These are
most, these most deadly adversaries of republican
government might naturally been expected to make their
approaches from more than one corner. But chiefly from the desire and
foreign powers to gain an improper ascendant in our
counsel, in our counsels.” So, another concern of the
founders, about the Executive Branch that the Electoral
College is designed to cure, is foreign intrigue or foreign
cabals getting involved in the selection of our Chief
Executive. So the Electoral College is
going to be designed, as I will talk about in a minute, to try
to prevent that from happening. The other concern though, as I
said before, if you look at the constitution as a potential
consumer as a potential voter, yes or no, am I going to accept
this thing. The first thing you see is not
the Executive Branch. That would have scared people. It’s the people’s branch. So, but nevertheless, if we are
going to avoid cabal and intrigue, we are going to have
to have a unique system for choosing our Chief Executive. But no system would be
legitimate. No system would be authoritative
if it did not have some kind of democratic feature to it. So this is what the founders
were thinking about. So again, they were worried
about corruption and intrigue in the selection of the executive. They wanted to produce a certain
kind of executive. Right? Create a voting system that
produced a certain kind of executive. But they also wanted this choice
to be as democratic as possible. Not completely democratic but as
democratically as possible considering these concerns. So what did we come up with? The Electoral College. As you all know hopefully, the
Electoral College is the system that we have that selects the
president. When you actually go to the
polls, as I talk about, you do not vote for the president and
the vice president. Nobody votes, nobody in here I
bet has ever voted for the president or the vice president. You vote for a slate of electors
that are pledged to vote for the president and the vice
president. I’ll talk about that in a
second. But the way the college works is
is this way. Every state gets a certain
amount of electoral votes and candidates compete to win a
majority of those votes across the nation. Now how does we come up with a
number for each state for the amount of votes they have? Well we say, remember one of the
concerns here was to have it as democratic as possible. Well by the time, by this point
in the convention we could look at the work that had been done
already and say, “Well we already have a democratic
branch, it’s Congress. Well how about we use Congress
as a model for assigning electoral votes?” And that is still the case
today. Each state gets a number of
electoral votes that is exactly equal to their representation in
Congress. Every state has at least two
votes because every state has two Senators, but representation
in the House varies with population. The more population you have,
California has a huge amount of House members. So you take your amount of House
members add that to that two, that permanent two, and that’s
the amount of electoral votes each state gets. Now, to win the presidency, to
win the Electoral College you need to, as a candidate, to have
a majority to win a majority of those electoral votes. If you do not win a majority of
those electoral votes, you have less than a majority or there is
a tie in the Electoral College, the Founders imagined this to
happen, and did in fact it did happen, then there is a
provision in the Constitution that says, “that the selection
of the president then goes to the House of Representatives,”
which is the most democratic of the two branches of Congress. Remember at this time, we did
not directly elect our Senators. So again, here’s the Founders
coming up with a unique system to prevent a certain kind of, or
to produce a certain kind of candidate or winner, but still
trying to make it as democratic as possible. Well if we throw it into the
House some said, well then the bigger states would have more of
an opportunity to win the election or to swing the
election or to choose the winner. So what the Founders did instead
was, yes, the selection of the presidency, the president, will
go to the House of Representatives. But each state will vote as a
delegation. So no matter how many
representatives Virginia had at the time, they would vote among
themselves and there would be one choice. So, Virginia would only get one
vote not thirteen. Rhode Island if it only had one
House member would still get one vote. So it equalizes. It makes equal the states in the
House, which is not an equal institution. The House is unequal right. The bigger your state is the
more representation your state has in it. But here in this unique case of
the Electoral College, states are equal in the selection of
the president if there’s a tie or nobody gets a majority. But there is another aspect of
the Electoral College which is probably the most controversial
and which is probably the scariest, when we think about
it. Although we have never been any
of these incidences I’ll talk about that have ever swayed an
election. There is another aspect of the
Electoral College we need to talk about and that is the
electors themselves. As I said before when you go to
vote for president, as you’ll do this November, look closely at
your ballet. It will say, if you are going to
vote for Obama and Biden, it will say check here, here in
Oklahoma we use a pen and color in the box or fill or fill in
this line, check here to vote for the electors, for Barack
Obama and Joseph Biden. You are not voting for Obama and
Biden. You are voting for a slate of
electors who will decide if your vote was the right one. Where’s this come from? The Founders said, or Madison
said in justifying this that “we need to have an intermediate
body of people in a sense to check our votes.” Remember one of the big concerns
here was foreign influence. Another one was what Madison
called the little arts of popularity. Madison said we should be
concerned to, to get rid of the little arts of popularity. And how could we do that? We can imagine us all being
swayed by a great campaign. Right? We can all imagine that. And we are swayed and we are
moved and we show up and we vote. And then we say, “Oh my”. I don’t think that was the right
idea. Now that I reflect on this, I
don’t think it was a great idea. That is the idea of the electors
themselves. To be an intermediate body and
the Founders had in mind; this intermediate body would be
chosen for this very specific purpose and no other purpose. They were what matters called a
transitory body of people, selected for this very important
purpose. Alright? Prominent figures in the
community, people that the community or the state trusted
for this, for this awesome responsibility, which was, to
have in a sense, a time period between an election and the day
the electors meet in their own states to certify the amount of
votes that a candidate has won. And again, the idea here is to
check the people’s wishes and desires for the president. And you can imagine, for such an
awesome choice, for a singular executive, and we’ve seen in our
lifetimes and in the history of the United States, the increased
power the Executive Branch has over our lives and in the World. We can see how this was and
still is a legitimate concern that our system produce the
right outcome. In other words, the right kind
of person for the office. And again, we can see in the
structure of the Electoral College this very concern. Now the electors themselves
sometimes have not been what we call faithful. They have been faithless
electors. And that’s really problematic if
you think about it. But it isn’t if you think about
it in the way the Founders had in mind, which was to check kind
of the momentary passions of the people. To make sure there is a cooling
off period in a sense after the election. That we weren’t swayed or moved
by something that we shouldn’t have been. Now the way that electors, the
Electoral College works today though is a little different. Some states by now have passed
laws that their electors can’t be faithless. So they have, electors have to
vote in the way that if this slate of electors wins, in other
words, if Obama wins Oklahoma, which is not going to happen,
then those, not for any other reason than he just won’t, I
know he won’t, those electors might be bound by law. I’m not sure if Oklahoma passed
a law about electors. I’d have to look at that. But other states, some states do
not have a law that requires their electors to vote that way. Today though, the vast majority
of electors are party volunteers. Lots of retirees, people who’ve
worked in the party with party leadership have helped raise
money, help get out the vote. But you could imagine that they
would be faithful. I mean if they are democrats and
the democrat wins, they are gonna cast their electoral votes
for the democrat. So the system doesn’t have as
much teeth or potentially has a much teeth and bite as the
framers imagined. But we can still see in our
strange system called the Electoral College some
fundamental concerns about the Executive Branch itself and kind
of this unique American way of thinking about designing
institutions in such a way that produce certain kinds of
outcomes or certain kinds of people. Thank You. (Applause) (Music) Freedom 101
is made possible by generous support from Woody Young and the
University of Oklahoma Alumni Association Freedom 101 is a
program of the Institute for the American Constitutional Heritage
at the University of Oklahoma. For more videos and podcasts
visit freedom.ou.edu. (Music)

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