HOLD MY BEER – The Election Law Debate

Part six, with this final post and other posts raising issues worth considering in advance of the upcoming Presidential election.

PART SIX: Hold My Beer

In an age where the presidential vote is relatively close, a two-party system dominates politics, and the average voter recognizes that voting for an independent/splinter candidate has no real shot at electoral success, is this really what the framers intended in 1787 when drafting the Constitution of the United States?

In today’s parlance, the Framers’ debate was the ultimate: “hold my beer.”

Not only was the Electoral College system problematic almost from the moment it left the starting block, but the election process has grown more complicated, more winner-takes-all, and more divisive than perhaps the delegates could have imagined.

DIVISION WITHIN

For instance, in 1797, Thomas Jefferson, the then-sitting Vice President, wrote a letter to his colleague, Edward Rutledge, in which Jefferson reported that the mood of the nation’s capital had become politically divisive:

“The passions are too high at present, to be cooled in our day. You & I have formerly seen warm debates and high political passions. But gentlemen of different politics would then speak to each other, & separate the business of the Senate from that of society. It is not so now. Men who have been intimate all their lives, cross the streets to avoid meeting, & turn their heads another way, lest they should be obliged to touch their hats. This may do for young men with whom passion is enjoyment. But it is afflicting to peacable minds. Tranquility is the old man’s milk.” (Jefferson to Rutledge, June 24, 1797, in Jefferson, Papers, 29:456-57 (with my emphasis).)

Less than a decade after ratifying the Constitution you had political opponents, who had known each other all their lives, cross the street and turn then head to avoid meeting or acknowledging one another.

Does Jefferson’s report — in 1797 — sound familiar when looking at today’s election debate?

The political divide, from out of the gate, was becoming personal even amongst the founding-statesman.

IF IT BLEEDS IT LEEDS

But hold my beer Mr. Jefferson: In the election of 1824, the Congressional caucus nominated Albert Gallatin for Vice-President. The caucus was attacked as undemocratic and Gallatin, the nominee, later withdrew his candidacy. The claims in that election, just as today, related to attacks on credibility, a candidate’s “fitness” for office, and the failure to obtain popular support.

But hold my beer Mr. Gallatin: Fifty years later after Gallatin, when Rutherford B. Hayes won the electoral vote, not popular vote in the election of 1876, many in the losing party referred to him as “Rutherfraud” B. Hayes or “His Fraudulency” during his 4-year term – in part because votes were changed/thrown-out, but that is a different story.

Now sitting over 100 years removed from Hayes, over 150-years removed from Gallatin, and over 200 years from Jefferson, the same familiar themes persist, with candidates — and parties — in a gridlock of attacks, issue-related and personal, that, if not on par with past history, certainly have some historical precedent.

THE DIVIDE WITHIN

The point being that for those who argue this election cycle is the worst of all time, historical review suggests this election cycle is not far removed from the ilk of elections-past.

At the same time, what prior blog-posts have attempted to do is bring this political-divide within the context of the Constitution of the United States.

In prior blog-posts, much of the authority and background can be found in Ray Raphael’s book Mr. President: How and Why the Founders Created a Chief Executive (2012). There, Mr. Raphael sums up the Constitutional Law debate that has morphed into countless laws, opinions, cases and legal jurisprudence that makes a horse run:

“The document the framers created was not some algorithm that could be dutifully followed to achieve optimum results. Instead, by necessity, it would have to be treated as an incomplete and therefor evolving guide that pointed in a general direction but left more room than some might prefer for interpretation–and, like it or not, discretion.”

Taken one step further, the interpretive and discretionary application of the Constitution forms the center-piece to the very-political fabric that holds court today, just as it did 200 years ago.

A TEST OF TIME

The point is that there is a process. There is deliberation. The democratic process is not to be thrown to the wind simply because of one-person’s desire to throw it there.

We could even argue that, in some respects, the Electoral College system produced winners that would not have otherwise won. Lincoln is the standard bearer for this – his Electoral College win was a result of a divided opposing party – but there are other examples, old (Jefferson) and new (Clinton), and strong argument that the last two election cycles produced Presidential winners that benefitted from the indirect-voting system of the Electoral-system.

Imagine no Lincoln, or Jefferson (or others) as President.

Thanks to the Electoral College system identified by the Framers in 1787!

Moreover, if you are to take away anything from this series, the 2024 election cycle can be understood with three points.

First like it or not, there is a process to our government. Process exists for an election. Process exists for enacting laws. Process exists in the courts.

While criticism can be directed at failings within the process, there is a process, as debatable and imperfect as it may be, and it is this process that provides the baseline for citizen-rights — made possible by your right to vote.

Second, if you followed the winding path of my prior posts, the same point comes up again and again: compromise. Ours is a system of government made of compromise. Compromise exists today (albeit often begrudgingly), just as it did at the time of the Constitutional Convention (often begrudgingly)

The framers themselves were not in agreement with everything in the Constitution — nor would you be expected to be in agreement with all positions or all sides when exercising your right to vote.

Third, and perhaps most important, disagreement is part of both the process and the compromised solution that underscores our American government. Disagreement is okay.

As a society, we can debate how widespread and rampant voter opinions differ across the laity.

Our system of government does not require (or even want) you to check opinions at the door come election time. Instead, the American-way, and in particular the right to vote, is to take on the weighty obligation of voting while fully embracing the views of others and your own positive and negative personal opinions.

This is how it was in 1787.

This election cycle is no different.

HOW WE GOT HERE

Which leads me to one final point when it comes to this election. A voter can be passionate or indifferent on this election, enthusiastic or uncaring on a candidate, optimistic or pessimistic on government, or many shades in between, but, regardless of position, know this: your vote is part of a grander plan, a greater scheme, and one important piece to the puzzle.

See you on Tuesday, November 5 — Election Day.

 

Jacques C. Condon, Marquette 1999, is owner of Condon Law Firm, LLC, in Thiensville, handling civil litigation, business law, and problem-solving cases ranging on everything from sports and entertainment to local-level government action.