Oh, that Electoral College

A Facebook friend posted today:
Question (answer with rationale invited):
Should the Electoral College elect Clinton or Trump?”
The question is significant right now because, while Trump apparently won an Electoral College majority, Clinton won a solid majority of the popular vote (a little more than 51%). I say Trump“apparently”won an Electoral College majority because the Electors, when they vote next week, are not necessarily required to vote for the candidate whom they previously said they would vote for. Theoretically the Electoral College could still give the victory to Clinton without violating any law or the Constitution.

Rather than answering the direct question – whom they should elect – I commented with some thoughts about how to develop the rationale. It ended up being one of those annoying five-paragraph Facebook comments that draws from history, philosophy, civics, and politics, using obscure polysyllabic words and long, complex sentences to showcase the writer’s erudition. That was obviously inappropriate for a Facebook comment; if you want to show off your erudition, you’re supposed to write a blog post. So here’s mine.
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At the outset, let me say that I understand the question to be: what should today’s Electoral College do? The question is not how we wish a redesigned Electoral College might work; that’s a separate issue – one worth discussing – but it’s not the question at hand.
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My starting point is that the answer to a “should” question depends on one’s assumptions. Here, the dueling assumptions are:
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  • The United States is primarily a federation of sovereign states. This is most obviously represented by the Senate, where each state has an equal vote. This assumption was widely, though not universally, held when the Constitution was written and ratified.
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  • The United States is primarily a democracy. This is most obviously represented in the House of Representatives, where each state’s voting power is proportional to its population. This assumption is widely, though not universally, held today.
If the US is a federation, then a strong case can be made for election of the President by the states rather than by the national populace. Just the existence of the Electoral College system suggests that this is the assumption of the Constitution.
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If the US is a democracy, then a strong case can be made for election of the President by the national populace. The structure of the Electoral College suggests that this is the assumption of the Constitution — electoral votes are allocated to states roughly by population.
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(A finer point about the democracy assumption: The US is not a direct democracy, it is a democratic republic; that is, the voice of the populace is expressed through democratically elected representatives. Both Congress and the electoral college system are consistent with the assumption that the US is a democratic republic.)
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There are three flies in the ointment, so to speak, three issues that are not cleanly addressed by the assumptions above. One is intentionally embedded in the Constitution, and the other two reflect common practices that may not have been anticipated by the writers of the Constitution:
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  • First, the electors, unlike US Representatives, are not allocated strictly by population: smaller states get proportionally more representation, therefore larger states get proportionally less, because the number of a state’s electors is the number of its (population-proportional) Representatives, PLUS TWO. This triples Delaware’s voting power in the Electoral College, for example, but only increases California’s by 4%. This adds an element of federalism to an otherwise democratic process.
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  • Second, in all but two states, a state’s electors represent only the majority of the state’s populace; the minority has no representation in the Electoral College. This strongly pushes the Electoral College system in the direction of federalism rather than democracy. But the Constitution doesn’t require this system; nor does it prohibit it. In fact, in the US’s earliest elections, Electors were chosen in most states by the legislature, not by the people. Moreover, the Constitution contains no assumptions about the existence of political parties, which is important because states that adopted the “winner take all” system of choosing electors were motivated by partisan considerations — the winner-take-all system gives the majority party in the state more power in choosing the President than would a proportional system (like Maine’s or Nebraska’s).
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  • Third, the Constitution does not assume that Electors are legally required to vote for the candidate they stood for during the election. Yet many states do have laws that say that Electors must vote for the candidate for whom they stood during the election. The constitutionality of these laws has never been sustained or rejected in the courts.
So when we ask “should” the Electors choose Clinton or Trump, we need to be clear which question we’re asking.
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Should the Electors follow historical precedent?
If so, should that be the recent history, the early history, or the overall history of the US?
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Should the Electors follow the Constitution?
If so, follow only the specific articles written in the Constitution? or follow an interpretation that accounts for the authors’ assumptions and intentions, as far as we can know them? or follow an interpretation that accounts for current generally-held assumptions? or should each Elector follow her/his own interpretation of the Constitution?
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Should the Electors follow the law of the state they represent?
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Should the Electors follow their own moral conscience?
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I personally don’t think there’s an obvious answer to my Facebook friend’s question: Should they elect Clinton or Trump? It depends on what assumptions one makes. I do think it would be helpful to the discussion of the question if we were each to clarify what assumptions we’re making, because, as we see, there are so many assumptions to make.

Who do you call at 3 a.m.

 

Who do you call at 3 a.m. when the tears won’t stop

When you hear the sweet song of the razor blade in the bathroom drawer

When you’re hurting inside but don’t know why or how long it’ll last

In the empty apartment alone by yourself with no one else there

 

Who do you call at 3 a.m. to tell you the words

That’ll give you a little bit of hope to balance the pain

A reason to sleep, and more important, one to wake up

When it really sounds better to close your eyes that final time

 

Who do you call at 3 a.m. to hold your hand

And kiss your tears, to hug you tight and never let go

When all of your lovers are far in the past and even your family

Can not understand why you’re crying or where you’re lost

 

What do you do at 3 a.m. when there’s no one to call

Is all that’s left to stay awake and look outside

And wait for the sun to brighten the sky and start the day

Then go to work and try again to stay alive