Part five: ELECTION LAW — An Electoral College Degree

An Electoral College Degree discusses the constitutional selection process for the United States presidency. Here’s the history. Here’s the discussion. Part five, with this and other posts raising issues worth considering in advance of the upcoming Presidential election.

COMPROMISE IS COMPLICATED

Prior blog posts mentioned party-politics as having emerged during the Constitutional debate of 1787 — in the framing days of the late eighteenth century, delegates began aligning along federalist and anti-federalist divides.

Alignment shaped the compromise that became the Constitution of the United States.

And the process of choosing the President — indirectly through electors — a compromise at work.

Compromise was complicated.

INDIRECT ELECTION

Back to the history lesson. In 1787, when drafting the Constitution — and before the messy elections that would come a decade or so later — the electoral college issue was at issue.

In particular: what is the electoral college.

The summary: a compromise.

The framers compromised between having the presidency chosen by the people (popular vote) or by the people’s representatives (Congress).

Each state has a certain number of electoral votes. The number is based on representatives in Congress (i.e. the Senate and House). Wisconsin has 10 votes. Michigan 16. Florida 29. California the most at 55. This year, assume that California is won by the Democrats, it means a big-lead in the electoral college. The Republicans need to make up the gap by winning more States.

Swing States are those whose majority vote will be close.

Who chooses electors? The framers compromised. That meant, primarily, kicking-the-can back to State legislatures.

That’s how it works today.

Since the election of 1824 (which I will discuss in my next post), most States appoint their electors on a winner-take-all basis based on statewide popular vote. The exceptions are Maine and Nebraska (choosing electors by congressional district and, in some instances, resulting in a split vote between candidates).

Basically, if the majority of Wisconsin voters choose the Democratic Party candidate, then all of Wisconsin’s 10 electoral votes go to the Democrats.

The same would hold true for a majority that went Republican, Libertarian or other party candidate that achieved the majority. (Technically it would be a majority of the plurality, but that adds complexity to an already complicated system.)

In the age of COVID, news abounds as to mail-in voting. The summary is simple (the issue not as much). If you want your vote to count for the presidency, vote early — today is the last day of early voting in Wisconsin. Or go to the polls on election day.

That’s the electoral college process.

DEGREE OF PROBLEM

So how did the electoral college work, initially?

Well. To start.

As most Americans know, the guy on the dollar bill, George Washington, served as the first President. He won the electoral college vote. He took the position in 1789. Washington served roughly eight years.

His running mate, John Adams, came in second in the electoral college vote. Adams became the Vice President.

In the 2020 election the choice is a party ticket — Republican (Trump/Pence), Democrat (Biden Harris), and other party choices — but the same ticket approach did not exist for the first few elections.

There, the Electoral College scheme, as ratified in the Constitution (Article II, Section 1, Clause 3), allowed electors to cast two votes at election time, without distinguishing between the President and Vice President.

It worked well for the first two elections.

But in 1796, the electoral scheme met its first challenge: a contested election.

After nearly eight years of George Washington serving as President, the electoral-voting scheme — two votes — resulted in a split vote between electors. The Federalist Party candidate, John Adams, narrowly won the election. The Republican Party (borne of anti-federalist roots) candidate, Thomas Jefferson, finished in second place. As in the two prior elections, and per the Constitution, Adams became the President and Jefferson the Vice-President.

Why was an Adams/Jefferson executive branch a bad thing? Politics. The 1796 vote resulted in two parties, ideologically opposed on key issues, occupying the top two positions in the executive branch.

In today’s political climate, can you picture Donald Trump elected President and Joe Biden his running mate? Or flipped. Consider Trump second in command to Biden.

Seems strange. A problem in the making.

DEGREE OF CHANGE

Surprisingly, the ideologically opposed heads of state got along. Initially.

Not surprisingly, their agreeable relationship did not last long (perhaps days), only to see their views conflict throughout the next four years.

The party-conflict did not improve in the next election.

Nor were the parties themselves keen on a split vote.

Thus, in 1800, party-politics resulted in the same party winning both spots. Sort of.

Republican nominee Jefferson and a second Republican Party nominee, Aaron Burr, both obtained a majority of electoral votes, tied at 73 votes apiece. Because each elector cast two votes, it would be like Donald Trump obtaining the same votes as Mike Pence.

Without a clear winner, and per the Constitution, the decision on who would be the next President was a decision for the House of Representatives. There, the House took ballots — representatives did this 35 times, deadlocking on each. Neither candidate received the necessary majority vote of the state-delegations.

Once again, it would be like the House voting for the President 35 times, choosing between Trump and Pence, deadlocking each time.

FIGHTING WORDS

The tie-breaking process (in the House of Representatives) was somewhat complicated. Here are fun facts. It was done over 7 days. There were 16 States, so a winner needed a majority (9). Each of the States had its own rules on voting (allowing them to split their electoral votes). Some States submitted blank ballots. Lobbying was continuous.

Alexander Hamilton was among the lobbyists (think the musical, Hamilton, with poetic license).

Hamilton disagreed politically with Jefferson and Burr, yet one of those would be the next President — it was a question of which one. Wikipedia summarized Hamilton’s view as “he would much rather have someone with wrong principles [Jefferson] than someone devoid of any [Burr]”. Those sound like fighting words.

Anyway, the 36th ballot proved a winner for Jefferson. Jefferson became the President. Burr the Vice President. Both served out their term.

MEDIA MISLEAD

Fast-forward to today’s media-managed society.

Imagine what the American public would think about the election of 1800, played out front-and-center on Foxnews or CNN.

Once again, it took 36 ballots to choose the President. Not one. Not ten. 36.

Note who broke the tie: the House of Representatives.

Also note which majority controlled the House. In 1800, the Federalist Party (Adams) had control of the House before the election but lost handily to the Republican Party (Jefferson/Burr). The Federalists were on their way out. Yet the way the Constitution worked is that the outgoing House decided.

In today’s parlance, in 2020, the Democrats control the House. Let’s assume the 2020 election is a watershed moment for House Republicans, and they take-back the House majority. Let’s also assume the electoral college vote ends in a tie. So who breaks the tie?

The answer: Nancy Pelosi and the current Democratic-controlled House of Representatives would handle the tie-breaking process.

GETTING YOUR DELEGATION DEGREE

It’s a little more complicated because the States vote, but a majority is needed. Check out any red/blue country map and it’s your guess on how close that vote would be.

If the tie isn’t decided by March, then the Vice President is to act as President. Unless that too is a tie, in which case the Senate chooses the Vice President.

Reality television — probably not at its best.

No doubt that by the 20th or so dead-locked ballot, in 1800, Congressional-members realized the electoral-mess. The parties didn’t like splitting power, as they did in 1796. The parties didn’t like the voting cabal of 1800.

The mess resulted in passing the tie-breaking process found in the Constitution’s Twelfth Amendment (1803), ratified in time for the 1804 election. This and other Congressional-based laws guide current elections (3 U.S. Code, Chapter 1).

FAITHLESS ELECTORS

Once again, the purpose of an electoral system is to have an indirect Presidential election. We select those who run on a ticket. Although ballots list the names of the presidential and vice presidential candidates, voters actually choose electors when they vote for the President and Vice President. These presidential electors in turn cast electoral votes for those two offices.

Electors usually pledge to vote for their party’s nominee, but some “faithless electors” have voted for other candidates.

If you’re worried about faithless electors, don’t be. Some states actually criminalize the conduct. No presidential election has been altered by faithless electors. Could it happen in 2020? Possible but unlikely.

In 2016, more faithless electors changed their vote than ever before, although the number was still just a handful. Why? Because most electors want their candidate in office and most electors are ranking members of the winning side. There is little incentive to vote against your own party. No need to go rogue.

Confused yet? If not, here is the importance of election by electors: it can produce odd results, and has.

And that of course will be the subject of my next post, “Teachings Of Elections-Past.”

 

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.