Why did the Founding Fathers choose to create the Electoral College? In this episode, Dr. Gary Deel talks to APU political science professor Dr. Rob Mellen about the history of the election process. Learn the origin of the Electoral College, its original intention as a check on the popular vote, and whether or not the Electoral College works successfully in modern times.
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Dr. Gary Deel: Welcome to the podcast Intellectible. I’m your host, Dr. Gary Deel. Today, we’re talking about the Electoral College and its role in American democracy. My guest today is Dr. Rob Mellen. Rob is a professor of political science who specializes in the study of American political institutions. He’s taught for APU since 2010 and previously taught at Mississippi State University and Washington State University, where he earned his doctorate.
Rob is a self-described political junkie who regularly blogs about the intersection of history and politics, in addition to his teaching responsibilities. When Rob’s not teaching or writing, he can usually be found on the golf course. Rob, welcome to Intellectible and thank you for being our guest today.
Dr. Rob Mellen: Thank you for inviting me. It’s a pleasure to be here.
Dr. Gary Deel: Absolutely. Likewise. Thank you. So today’s topic is the Electoral College, and for those who may be listening to this off into the distant future, we are recording this on December the 2nd of 2020. We are almost a month past the election of 2020 in which it appears clear that Democratic candidate, Joseph Biden has won the election. But there’s still a dispute being raised or a lack of concession, I guess we could say, from President Trump at this point.
We’re still waiting to see if that’s going to take place at all, but at this point, the gears are turning from the government standpoint, looking forward to the transition in January.
But one of the things that has been a divisive topic in recent years is obviously the role of the Electoral College and the way that it determines the outcome of our elections. And so I want to talk about the dichotomy of opinions around that obviously in recent years.
But before we get there, I think it’s important from a standpoint of history and an expertise such as yours to tell us where the Electoral College came from, because our Founding Fathers obviously were not cavalier about this. They didn’t flip a coin on how to structure our electoral process. They thought really carefully about this and the Electoral College to many today seems nonsensical. It doesn’t seem to mesh with the idea of democratic institutions and a popular vote mechanic.
So can you shed some light on when our country was being founded, when the Constitution was being written, where did this idea of an Electoral College come from and why?
Dr. Rob Mellen: Sure, thanks Gary for the question. The Electoral College is really an attempt by the Founding Fathers to impose a layer of checks and balances. Their view of democracy was not a very high one unlike ours today.
We tend to think of democracy as the be-all, end-all popular sovereignty, the people get to choose, they get to vote. The Founding Fathers didn’t think quite the way we do back in 1787, when they were writing the constitution in Philadelphia.
And in fact, they specifically designed our institutions so that only one of the major bodies, if you will, the House of Representatives, would be elected directly by the people. That was the body that was supposed to be closest to popular opinion, it was also the one where mob rule could take over and it would be checked by the Senate.
And the original design for senators was to be chosen by the state legislatures in each of the colonies at that time, which later became the states and now 50 of them. So that was their original design.
The design for the election of the president was to involve both the people and the states. And so, people would vote in every state, but then they left it up to the state legislatures to choose electors, who would then meet in their state capitals, who would vote for the most qualified individual for president.
They considered a lot of different options at the time, such as allowing Congress to choose the president, such as allowing the states to directly choose the president, also having multiple presidents at one point.
It’s key for us to understand that one of the reasons for this is that they wanted the president to be above partisan politics. Their vision of the chief executive was a wise ruler, we could harken back to Plato if you want and the philosopher kings that he talked about, he was to be a wise ruler who could oversee what Congress was doing, make a determination about whether the action taken by Congress was in the best interest of the nation, and the either approve it or reject it.
Obviously things have changed since then. We now have very partisan institutions and presidents campaign on the idea of implementing a party agenda. And that’s what voters vote for. So, what we look at with the Electoral College is a way of putting a check on the will of the people, in essence.
The framers expected the people wouldn’t know candidates outside their own states, that everything was going to be very regional and so what you’d end up with are people, voters, choosing candidates they were familiar with.
And so, one way to avoid that is you have this body of citizens who were chosen by the state legislatures who go and meet in their state capitals, who could then vote for the most qualified individuals.
Dr. Gary Deel: Okay. I think I follow and this is really interesting because I’m learning some things through the course of this discussion as well. If I understand you correctly, and feel free to tell me if I’m not, but it was a product of the fact that the Founding Fathers didn’t anticipate there would be the kind of national communications infrastructure or sort of media network that we have today, where everybody across the country from Alaska to Florida, to Hawaii to Maine, is able to get national media news and sort of familiarize themselves with candidates for national office, as much as they would be more or less than as if they were living in the District of Columbia.
Is that a fair assessment of what they were thinking and why it would be better to implement an Electoral College as opposed to a popular vote system?
Dr. Rob Mellen: Absolutely Gary, that’s definitely a part of what their thinking was. If you look at communications back then it took weeks for information to travel from, let’s say Georgia the furthest south colony, all the way up to Massachusetts in the north or New Hampshire.
So, having that kind of system, the voters were not expected to know who all these candidates might be. And they expected that there would be a lot of people throwing their hat in the ring to become president of the United States other than the first two elections.
The first two elections, obviously George Washington, well-known by everybody in the country, I mean, he’s the war hero, the revolutionary war, presides over the constitutional convention. He’s well-known, he’s unanimously elected in 1789 and then again in 1792.
So, you have this well-known individual who, some would argue, was intended to serve for life, Alexander Hamilton might’ve made that argument. And if you’re a fan of the play Hamilton, you have that moment of surprise in there where George Washington calls him in and says, “I’m stepping down. I’m not running for president.” And Hamilton goes, “Excuse me?”
That’s kind of the vision that I think some of the framers had is that once a man was elected president, he would stay in that office subject to approval by the voters every four years, but as long as they were in good behavior, there’s no reason why they wouldn’t be continuously reelected.
So yeah, I would say communication had definitely something to do with it and the fact that individuals from Massachusetts might not be well known in Virginia and South Carolina and Georgia, whereas individuals from Virginia and those places wouldn’t be well-known in Massachusetts. So it was an attempt to prevent regionalism.
Dr. Gary Deel: Well, and ultimately that point was the catalyst of the 24th, 3rd amendment, the post-FDR amendment limiting two term presidencies, if I’m not mistaken? I mean, ultimately we codify that in our Constitution, right?
Dr. Rob Mellen: Right. The 22nd amendment actually limits presidents to two terms. Little known fact is that a president can actually serve 10 years under the 22nd amendment, because if they succeed a president and serve less than half of that president’s term, they’re also still eligible to be elected president twice on their own. So, they could serve 10 years.
And apart from FDR, the only one who was elected four times, Ulysses S. Grant was widely assumed to be running for president in 1876 for a third term. However, when he stepped aside and decided that he would follow Washington’s tradition of two terms it threw the whole election into chaos. And that was one of the few elections we’ve had where the Electoral College and the popular vote differed.
Dr. Gary Deel: Now the Electoral College you described earlier, and I guess we probably should have begun with an overview for those who are not keenly familiar with the details, and I’m among them because the electors of the Electoral College are people who seem very foreign.
Obviously we’re, again, we’re recording this on December 2nd. So we are due to have the Electoral College vote officially in the 2020 election on the 14th, which is 12 days from today. But who, I guess for lack of an easier way to phrase this, who are these people and how did they earn their titles or their positions of power as electors?
Dr. Rob Mellen: It’s up to the state legislatures in each state to establish the guidelines for electors, but as a general rule of thumb, what we can say is they’re average people like you and me. They are individuals who generally are politically active.
The one requirement of the Constitution is that they cannot hold a position of public office under the United States. So no senators, no members of the House, no one in the executive branch who is an official or an officer of the United States government is eligible to be an elector.
Dr. Gary Deel: Is that at the state and federal level or is it just federal office?
Dr. Rob Mellen: Yes, no federal office.
Dr. Gary Deel: Okay. So they could potentially be a state legislator?
Dr. Rob Mellen: They could potentially be a state legislator. But generally, they’re just average people who run for those offices, who get nominated for those positions by their parties, at their party conventions at the state level.
So, for example, I can talk about Washington, the process in the state of Washington, because I was a delegate in Washington at one time when I was working on my doctorate out there. Our county had a convention in Whitman County and our local city had its own meetings where we all gathered, and we cast our votes for president.
And then two of us were chosen to represent the city at the county convention, and I was one of the two chosen. So, I go on to the county convention at which point they choose the number of representatives from each county that will go on to the state-level convention, which was to be held a few months later.
I couldn’t go to that because I was defending my prelims at that point at the time that it was going to be scheduled for, so I couldn’t go on and continue to be a delegate so I dropped out at the county level.
But those individuals chosen at the county level would go on to the state convention. And at the state convention, the delegates are the electors for the Democratic party or the Republican party would be chosen.
So, each party will hold its own process in which it will choose a slate of electors. So, in reality, what most people don’t know about when we’re voting for president, we’re not really voting for president, we’re voting for a slate of electors that have been chosen by the political parties to meet in their state capitol on the date designated, like you said, this year, December 14th. And those electors will meet in their state capital and cast their votes, one for president one for vice-president because of the 12th amendment.
Dr. Gary Deel: Now, is it the case that if, for example, I live in Florida, and Donald Trump carried the state in 2020. So to make sure I understand sort of the mechanics of this process, because this is far more complicated than I think people appreciate, including me, I’m learning quite a bit in this discussion.
So after we’ve established that Donald Trump has won the popular vote in this state, is it only the Republican nominated electors that vote on behalf of Florida for our state’s representation in the national, or is it everybody, both Democratic and Republican electors vote?
Dr. Rob Mellen: Nope. It’s only going to be the Republican electors in the state of Florida.
Dr. Gary Deel: Okay. So whichever party wins that state it’s only their electors that vote?
Dr. Rob Mellen: Correct. Since Florida has 29 electoral votes, the 29 Republicans who were chosen by the Republican party once Florida has certified its results, I believe that’s already happened actually, Florida certified its results for Donald Trump.
Those 29 electors will meet in Tallahassee on December 14th, and they will cast one vote for Donald Trump, one vote for Michael Pence. Trump will be the presidential vote, Pence will be the vice presidential vote.
And then those votes will be sealed, certified by the governor, sent off to the archivist of the United States, sent to the Congress, and one copy will be kept here in Florida. They’re going to be a total of six copies actually that are made of the votes. And that way the governor has an extra one in case Congress loses their copy. It’s an interesting process.
Dr. Gary Deel: And so when we hear recently, because there’s been so much dispute over this unprecedented election and the lack of a concession in the absence of, or in the face of clear evidence of a winner, we’re hearing in the news just yesterday, I believe it was Arizona and Wisconsin, and last week there were several other states, Pennsylvania and a few others, that the governors had certified their elections. But, correct me if I’m wrong, that is a different step in this process than the electors from that state certifying the election, is that right?
Dr. Rob Mellen: Well, it depends upon the state. In most of states, once the governor certifies the election results, that awards the electors to the party’s candidate that won the popular vote in that state. That is the general final step before the electors are appointed and they actually go to vote.
So in Arizona, in Georgia, in Pennsylvania, in all of those states where the election results have been certified, what that means is those electors have been awarded to the candidate of the party that won the popular vote in that state.
Dr. Gary Deel: Okay. So those states are not waiting for December the 14th, is that kind of a super Tuesday, but for Electoral College where it’s just the majority of states that do it on that day, and then some of these other states do it prematurely or prior to that, I guess I should say?
Dr. Rob Mellen: Well, no, they’ll actually vote on December 14th, but the slate of electors has been awarded. So in other words, because of the certifications in those states, the state of Pennsylvania or whichever state we were talking about, has now awarded the democratic electors the right to meet in their state capital.
Dr. Gary Deel: I see. Okay. So just the right for them to meet and vote, it’s not the state’s electors. It’s not the governor saying, “Our votes are going to this candidate?”
Dr. Rob Mellen: Yeah. Now it’s up to the electors. However, I will clarify that by saying one thing, and that is that of the states, I believe it’s over 30 states currently have laws that require their electors to vote for the candidate that won the popular vote in their state. There are some states that don’t place that requirement on what we call this as the “faithless elector.” An elector can show up and then cast a vote for somebody else.
Dr. Gary Deel: And that is what I was just going to ask, I mean, because I’m familiar with that term and you said, so if I understood you correctly, roughly 20 of the states do not have faithless elector laws that would prevent them from doing that. So, conceivably, in those 20 states electors could betray their political party and vote for whoever they want?
Dr. Rob Mellen: Conceivably that’s possible. And that’s actually what the framers had in mind when they created the Electoral College. They had no expectation that there would be a partisan co-optation of the Electoral College. That they wanted the electors to vote for the most qualified person, regardless of party, or affiliation, or state they came from.
The only requirement is that you couldn’t cast both of your electoral votes for a candidate from the same state as yourself, which is why we have that funky thing that happens when a presidential candidate chooses a running mate, it’s always somebody from a different state other than themselves, so that they can both get all the electoral votes.
It’s why Dick Cheney moved his residence to Wyoming in 2000 when Bush chose him as his running mate, because both of them were from Texas at the time. So Dick Cheney moved to Wyoming, and it’s why a candidate never chooses a running mate who’s from his own state.
Dr. Gary Deel: That’s interesting. So every elector that votes has essentially two votes in their pocket, one for president, one for vice-president. But if those two individuals on a particular ticket they resided in the same state, they couldn’t cast them both for the same state, they would have to split the ticket, I guess?
Okay. And so how does that work when we talk about, like you mentioned Florida earlier, and we have 29 electoral votes that doesn’t split evenly by two, and I assume we don’t have 14 and a half electors, is it actually 58 essentially, because it’s 29 electors and two votes each?
Essentially under the original Constitution, those 29 electors would have cast two votes for president and one would have to be for a candidate not from Florida. But today it’s they cast two votes. They cast one for president and one for vice-president. And then the Congress will tally those votes up and count them and determine who the winner is.
And actually, that job falls to Mike Pence to announce the winner in early January, the vice president of the United States or the president of the Senate actually tallies the final result and tells the nation who actually won the electoral votes.
Dr. Gary Deel: So when we talk about the thinking of the Founding Fathers, it sounds you brought up a few moments ago another potential reason above and beyond a lack of familiarity with the candidates, but a check on a popular vote democracy system of the Electoral College is that if, and I mean this with no reference to any modern political candidates for the sake of being neutral in this discussion, but if the Electoral College as a whole felt that the population of the United States had elected someone who was mentally incompetent or just an absolute lunatic to office, they could look at that from a qualification standpoint and say that this person is unfit for office and it allows them to override that in the interest of, I guess, the stability of our nation. Was that sort of another thinking of the Founding Fathers?
Dr. Rob Mellen: Absolutely Gary, that’s in fact Alexander Hamilton’s argument in Federalist No. 68, where he talks about the idea of the election. And he goes on to talk about, he says, “Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue and corruption.”
He talks about competence. He talks about the qualifications of an individual. And his argument is that the Electoral College, while they meet in their individual states, they would know how to evaluate such candidates to determine the qualifications, the competence of an individual, the suitability of that individual to hold the highest office in the land.
Today, because of the way the Electoral College has been turned into a partisan rubber stamp, if you will, we already know the outcome. This is why we can project the winners on election night or this year, three days later.
But normally we know on the night of the election, we know who has won because we know that the slate of electors that’s going to go and represent each state is going to reflect the popular vote in that state.
And while there tends to be one or two faithless electors from time to time, because of the penalties that states impose on electors, which can be anywhere from $1,000 fine to potential jail time, the electors tend to vote exactly as their states did in the popular vote.
So, and the Supreme Court this summer, in the case of Ciafalo vs Washington upheld laws that penalize or replace the faithless electors that those laws are constitutionally valid.
Dr. Gary Deel: Now I want to parse that just a little bit further to make sure I understand. In a state that has a faithless elector law is that what you’re describing in the sense of penalties where you say that, in other words, in one of those states, is it conceivable that an elector could still betray the party and vote in a different way, but face a penalty? Or are those the states which say you just cannot do this. It’s not allowed. And the other states have the penalties.
Dr. Rob Mellen: It’s conceivable that a faithless elector could do that. Even in the state with a penalty, the individual could be willing to take that penalty on and say, “Hey, I’ll pay the $1,000 fine or I’ll serve the time, whatever it happens to be.”
The Supreme Court did uphold the idea that if a state legislature had passed a law saying that in the event that an elector is faithless, that elector can be removed and replaced by someone else. That’s also constitutional. It’s unclear, I haven’t studied all 50 state laws to find out which ones have procedures in place to replace faithless electors.
Dr. Gary Deel: It’s safe to say, I mean, without being specific to any particular states that some of the faithless elector laws just impose penalties, that some may feel it would be worth it to eat, if they felt compassionate enough about betraying their loyalty to whatever party nominated them.
But others it’s also conceivable where a faithless elector could actually be prevented by removing them from their position in the event that they became a faithless elector and replacing them with somebody who would be loyal to the party.
Dr. Rob Mellen: Absolutely. That is something that could be done if the state legislature felt that it was necessary if they have an existing law already in place allowing them to do that. Because the Constitution specifically leaves the choosing of the electors or the manner of selecting electors to the state legislatures. It does not mandate any way of how it’s done. It just says that it’s up to the state legislatures to design the process for doing that.
Dr. Gary Deel: So we as just average citizens, you could argue that by proxy, we are voting for our electors because we vote for the legislators that nominate those individuals. But the reality is, I mean, I’ve been a resident of Florida for years, and I’ll be perfectly honest, I don’t know who our electors are, who the individuals that hold those roles are.
So I guess that’s why people sometimes feel disenfranchised by the system when they hear about the Electoral College, they’re like, “Who are these people and who decided that they should wield this power?”
And it’s interesting that the Founding Fathers created the system in the idea that it could counter a potential poor decision by the electorate. But the double-edged sword there is that this system could also be used for abuse by a party or by a candidate who wanted to overturn an election such as what seems to be one of the strategies that the Trump administration right now is attempting to orchestrate.
And so that’s where the faithless electors laws come in, where apparently the states have decided that better we do away with this idea, than run the risk that it could be abused for nefarious purposes.
Dr. Rob Mellen: That’s exactly right. And the important thing to note about the electors is that they’re different in every presidential election. They’re chosen by the political parties as who is going to represent them because the state legislatures have established a process by which the parties can do that. So the parties will individually submit a slate of electors.
For example, in Florida, the Republican Party puts out a slate of 29 Republican loyalists who have made a pledge that if the Republican candidate wins the state of Florida, they’ll show up in Tallahassee on December 14th, they will cast their vote for the Republican nominee for president and vice-president.
The Democratic Party does the same thing, a slate of 29 electors. The Libertarian Party, the Green Party, any party that makes its way onto the ballot in Florida for president, submits a slate of electors that will represent that party in Tallahassee on December 14th, if that party wins the popular vote in the state.
Dr. Rob Mellen: So one exception. There’s only one state that actually you know who you’re voting for. And at least it used to be this way. I’m not sure if it is, I haven’t lived in South Carolina. But South Carolina actually puts the electors names on the ballot. And it’ll say, “Republican Party, Donald Trump, Michael Pence.” And then there’ll be a list of all the electors for the Republican Party.
And so you just vote for that slate of electors. So people actually know you’re voting for the Electoral College there for who’s going to go and represent you. So, in a sense, the Electoral College is a way of representing the popular vote because you get to vote for the slate of electors that you want to go and vote for president.
Dr. Gary Deel: Now, when the state legislatures nominate these electors, maybe I’m missing a piece of the puzzle here, but state legislatures are normally controlled by one party or the other. So could it be the case that, I mean, obviously you have a set of Democratic electors and you have a set of Republican electors for each party in each state, but could a state legislature that is, for example, controlled by a Republican majority appoint Republican loyalists to the Democratic electoral body and sort of just put their finger on the scales in a sense so that no matter which way the election tips in the popular vote in their state, they’ve got people on both sides that will vote faithlessly or not in the interest of their candidate.
Dr. Rob Mellen: Generally not because the state legislature doesn’t actually choose them. It’s the parties themselves that choose who the electors will be. All the state legislature does is establish the mechanism for the parties to submit their slate of electors. So it’s up to the parties to find their loyalists.
That’s why I talked about the party conventions and all of that. Going back to where the electors are just people like you and me, we’re party activists, we’re people who have decided, “Hey, I support this party and I’m going to work for the betterment of that party. And maybe I’ll try to become an elector and I’ll show up in my state capital and I’ll vote for my party at that point, because my party won the popular vote.” So in Florida, the 29 electors will all be Republicans who have promised to vote for the Republican candidate.
Dr. Gary Deel: Do we see any strategic efforts at, for lack of a better word, obstructionism, I’m thinking about the same way that parties will take efforts at things like gerrymandering districts to change popular vote outcomes. Is there any attempts in the state legislature sort of passings of the way that these nominations are structured, that would make it hard for one party or the other to get the nominations that they need or want among their loyalists?
Dr. Rob Mellen: Generally not. Whoever controls the state legislature generally doesn’t get involved in any of that at this point in time, there’s one exception. And 2000 was the exception to that rule in the Bush v. Gore case because the state of Florida could not certify the election results due to all the recounts that were going on.
And if you’ll recall back then, vice-president Gore requested a hand recount of the undervotes in four counties that were thought to be beneficial to him. He was trailing by, I think the number was around 1,500 votes at one point, but figured he could maybe make that up by having those ballots recounted.
Well, as the recounts were going on and you had all the hanging chads and the pregnant chads and the dimple chads, all the things we learned about with chads in 2000. The Safe Harbor Day, which is the date by which states must certify their popular vote and appoint their electors. So they can meet in the state capitals.
As that Safe Harbor Day was approaching, the electors in Florida still had not been awarded because they were still counting and they were still fighting in court over the counts. So the state legislature here in Florida, which was Republican controlled, with Jeb Bush as governor, simply said, “Okay, if this isn’t done by the Safe Harbor Day, the National Safe Harbor Day, we’re going to appoint these electors as Republican electors and award them to Governor Bush.”
And that’s what prompted the Supreme Court to move very quickly in that. And that’s part of what was contested in the Bush v. Gore case was whether or not Florida had the power to do that first off. But also was that Safe Harbor Day, a drop-dead date by which the States had to certify, or could they go right up to the day before the Electoral College met or what would happen if Florida, if its electors didn’t meet until let’s say January 1st? This year it’s December 14th, what happens if Florida’s electors don’t meet until January 1st and they cast their votes on January 1st and send them to Congress?
Is that a real big deal? Well, the Supreme Court thought it was. And so they ordered that uniform standards for the recount be implemented and that the recount be concluded by the day before that Safe Harbor Day.
When that order came down, the state of Florida said, “Eh, we don’t have any possible way of counting these ballots in time to meet that deadline. So we’re just going to call off the recount.” And at that point, Secretary of State, Katherine Harris, certified Florida’s vote for George W. Bush and he won the state. And I think it was 539 votes was the total that he won by, but he got all the electors for the state.
This year, Safe Harbor Day, by the way is December the 8th. So all states have to have their votes certified by December 8th and then the electors will meet the following week. Most states, I believe, have their certification deadlines is December 1st.
Dr. Gary Deel: May have set an earlier deadline for themselves. We were talking about some of the modern snafus that have happened or debacles with regard to the Electoral College, namely the 2000 election Bush v. Gore.
So bringing it up to full swing. One of the things we had talked about in the earlier part of the hour is that the Founding Fathers didn’t anticipate the level of political division or the degree to which candidates for president would be so politically motivated by the party lines.
And so I’m curious to know, in your opinion, having some sense of the history at that time, was it really that unforeseeable? It’s my understanding that we’ve long had sort of a division, at least in the two party system. But at that point in time, was it really inconceivable? Even looking abroad, I know for example, James Madison studied other countries and their democratic institutions to get a sense of what our Constitution should be crafted like.
And I find in light of the modern times, maybe I’m just a product of my generation, but it seems so obvious that that would be part and parcel of the political system to hear that they didn’t think that that would happen seems almost naive, but was it inconceivable at that time, as it seems it would have been?
Dr. Rob Mellen: I don’t know if I would use the word inconceivable to describe it. I would say that they had high hopes that it wouldn’t devolve into a partisan situation. But it was clear by 1796, by the time Washington was set to step down and we were to have the next presidential election, that parties had already begun to form.
And we had the Federalist Party and then Thomas Jefferson, the leader of the Democratic Republicans. We had already pretty much formed a two party system. And we’ve stayed in that two party system for most of our history. Although we’ve had periods where there has been one party that faded away, like the Federalists died out after 1800 and were replaced by the Democrats, well, first off we had a one party system from about 1800 to 1828 or so.
And then you have the Whigs come along and then the Know Nothings, the Populists. And then finally the Republicans emerged in the election of 1860 and we’ve been Republican and Democrat ever since.
Dr. Gary Deel: Got it. It seems, I guess it’s a product of my own naiveté. And again, the generation in which I’ve lived, that this seems so inherent in our institution that it’s hard to imagine a time that it wasn’t. But I guess we take for granted how long ago that was and how different things were at the time.
Now, one of the things I wanted to ask, Rob, with respect to the parties nominating their electors at the state level and how the Electoral College works, what are the implications for that system with a third party system, like a Green Party or Tea Party, or any of the third party candidates that have ever run for political office? How does that work if, as some think is impossible, they were to ever get a serious chance of the popular vote?
Dr. Rob Mellen: That’s a very, very important question and one that we haven’t had to deal with yet, although there have been possibilities, the most recent being H. Ross Perot’s run in 1992, where we had a three-way race between president George H.W. Bush, governor Bill Clinton of Arkansas and H. Ross Perot running for the Reform Party at the time. And Perot picked up 19% of the popular vote in that election, leaving Governor Clinton with about 43% and President Bush with about 38%.
However, the Electoral College, Perot got no electoral votes. So all of the electoral votes were split between Clinton and Bush. And that’s because Perot failed to win the popular vote in any single state. Had he managed to win the popular vote in a state, he would have also gotten that state’s electoral votes. And that could complicate matters.
The last time that’s actually happened was in 1968, when George Wallace ran as a member of the American Independent Party. He picked up, I believe it was 48 electoral votes by winning mostly the southern states.
I believe he won Alabama, Mississippi, Louisiana, Georgia, Arkansas, can’t be positive of the others, but he managed a total of 48 electoral votes. Fortunately, it did not throw the election into chaos because Richard Nixon still managed to pick up enough electoral votes. And I think the total was 303, but I don’t have the Electoral College map in front of me right now. I believe it was 303 electoral votes.
So as long as a candidate gets at least 270 electoral votes, that candidate will become the president of the United States. Remember the closest election in our history, if we go back again, Bush v. Gore, and Governor Bush picked up 271 electoral votes, just one more than the required number to win the presidency. And two more than what would have been at the time, the worst case scenario, where no candidate gets to 270. So what happens when nobody gets to 270? The House of Representatives gets to choose the president. And in that particular scenario, every state gets one single vote.
They do not get the same number of votes as they have members of the House. They get one vote. So whichever party controls the most House delegations would probably control how each state voted. So it wouldn’t necessarily have to go by popular vote.
Dr. Gary Deel: I was going to ask you, if you had watched the series House of Cards, I’m on the part, don’t spoil anything for me, but I’m on the part right now and I guess somewhere in mid-season five where that’s taking place. And I was asking myself actually last night watching one of the episodes that this would be interesting to bring up in our podcast, to ask if what’s portrayed there, I mean, political sort of sabotage and ruthlessness aside, is it realistic in terms of how the process might play out if there was a crisis like that, of who actually won the election.
Dr. Rob Mellen: I would say it’s an overly dramatized portrayal of what could possibly happen. The reality is it would likely go to the House and the House would end up having to vote.
We have had this scenario happen in the past, a couple of times where the House has had to choose the president. And the actual expectation of the Founding Fathers was that the House would be frequently called upon to choose the president from among the top few candidates or the top few electoral vote-getters.
The first time it happened was the election of 1800. This is always one of my favorites to talk about with my students in class. It was the election between John Adams and Thomas Jefferson. John Adams and Thomas Jefferson, best friends at the time. But they’d had a falling out and Jefferson ran against Adams for the presidency in 1800.
Adams finishes third, but Jefferson and his running mate, Aaron Burr, tie because of that Electoral College casting two votes for president, they cast one vote for Thomas Jefferson and one vote for Aaron Burr.
So both of them end up with 73 electoral votes. That throws the election into the House of Representatives. And so the House now has to choose the president. And they vote by state with each state getting one vote.
Well, they voted 36 times and it was tied every single time. Again, if you’re a fan of the play Hamilton, you know there’s that scene in Hamilton where James Madison comes to Thomas Jefferson and says to him, “You know, it might be nice to have Hamilton on your side.” Well, Hamilton brokers a deal with his Federalist counterparts in the House to abstain from voting in the 37th vote, which then throws the election to Thomas Jefferson in a landslide. So Jefferson becomes president, Burr becomes vice president. Burr is angry about this, eventually shoots Hamilton in a duel in 1804.
Dr. Gary Deel: So fast forwarding to the current era. I now have a much better sense of what the Founding Fathers were thinking. I think I get it. I don’t know that I necessarily agree with the perspectives, but I understand where it came from.
With the benefit of hindsight, in your opinion, is the Electoral College still the best way to do this, or have we changed so much from what the Founding Fathers could have ever envisioned our country and our political system becoming that there is a better way to do this.
Dr. Rob Mellen: And I think that’s the key question right there, Gary. I think you hit the nail on the head in asking, is this still the best way to do it? And how we answer that question is going to be based on what we think the purpose of the Electoral College today is.
If we think it’s to ratify the popular vote in the state, sure, there’s nothing wrong with that. It’s only happened twice in the last 132 years that the Electoral College has differed from the popular votes. And that was 2000 and 2016.
Most of the time, it actually ratifies the popular vote and provides the incoming president with a margin of victory that is actually greater than his, or someday her, victory in the popular vote. For example, this year, Joe Biden is president-elect.
And his margin will be 306 to 232 or thereabouts, which is a pretty good spread. That’s almost a 60% carrying of the Electoral College. But his popular vote margins are only going to be about 4 percentage points. So it’s going to be about 50.5 to 46.5, something in that range. So it actually exaggerates the president’s victory and mandate when they’re coming into office. So in that sense, it’s a good thing.
If you prefer pure democracy, the Electoral College is an anachronism that probably should go away. I’ve had students in my class from foreign countries who will sit there and they’ll go, “You mean the guy that wins the popular vote, doesn’t become president?” And that’s one of those things that you have to explain, and it takes a lot of explaining and they generally still don’t get it. And they say, “You prefer democracy, you support democracy, but not when it comes to choosing your president.”
Dr. Gary Deel: Do you think that if we made such a change that that would create more additional challenges than it would resolve it? It seems like it would alleviate a ton of complicated bureaucracy with this Electoral College process and make the vote at least a lot more intuitively accessible to people who are not American history and politics experts such as yourself.
And I think that goes a long way towards restoring some level of faith in democracy, among people who look at the system and they go, “This makes no sense at all. This is clearly just not, it’s not fair.” Because it doesn’t strike me as obviously the fairest way to do it where you just add up all the votes as Pete Buttigieg has said many times on the campaign trail, why don’t we just add up all the votes and give it to the person who gets the most, the popular vote system?
But it’s not lost on me that that’s not a perfect system either in terms of the sense that it’s possible for the electorate to be misled into voting someone into office who is ill-prepared or unqualified.
So on balance, I’m curious to know your opinion if you think what we’ve got is better than that potential shift. And I ask because of course recently, and I don’t know how many states you might know have changed their voting statutes, such that they automatically award their electors or their votes in the Electoral College to the winner of the national popular vote. I think it’s like five or six at this point, but that seems to be the way by which the states individually are circumventing the federal government to enact a popular vote system.
Now, who knows if that will carry across all 50 states in the future. But that seems to be a movement that’s taking place. And so I’m just wondering if that’s a good thing on balance.
Dr. Rob Mellen: Well, what you’re talking about is the National Popular Vote Interstate Compact. It has been passed by, I think we’re at 11 states now that have passed that, the largest being California. However, the guidelines for that is that it does not go into effect until they reach 270 electoral votes in the participating states.
So currently the total of the states that have signed up are 190 electoral votes. They’re 80 short of where they need to be. The interesting part is that it’s all Democrat-run states that have signed on to this. None of the Republican states have ratified this thing yet. So, it’s unlikely that it’s ever going to come to pass because the Electoral College has a built-in rural bias, which favors the Republican Party right now. And so, there’s no incentive for small Republican states to join up with this thing. As far as that goes, I don’t think it’s going to come about.
Your initial question, do I think that the Electoral College is outdated? And I would say that yes, based on what it has become. Because it no longer serves the purpose that the founders intended for it. It no longer serves as a check on the election of an unqualified or incompetent individual or someone who’s seeking the office for personal gain. These are things they wanted to avoid.
And if the Electoral College is simply going to ratify the popular vote in a state for a particular party, then it no longer serves that function. And if states can penalize those electors for saying, “You know what, I don’t think this person’s qualified. I’m going to cast my vote for somebody else.” If states can penalize their electors for doing that or remove those electors, then you’re also defeating the whole purpose of the Electoral College as Hamilton argued for in Federalist 68.
So in that sense, I would say it no longer serves its intended purpose. And if that’s what we want for it to serve as that check on demagoguery, on populism, on the election of unqualified individuals, then yes, the Electoral College needs to go and we should go to a popular vote system.
It’s interesting that you mentioned that maybe that’s not the most perfect way to do a popular vote system, if I remember. The will of the people generally tends to prevail. And when you think about 150 million of them voting, they seem to get it right.
Dr. Gary Deel: Yeah. The trend and the parallel between the Electoral College and the popular vote in all but two exceptions in I think you said 132 years speaks to that. So it’s not lost on me. And I’ve written articles on this in the past that it’s possible for entire groups of people, societies and nations at large, to be misled by demagoguery or charlatanry.
I look at Nazi Germany and most of what was Western Europe at that time that if not an active supporter of the Reich was at least complicit and allowing that to continue. And we all see in hindsight, the horrible effects of people not recognizing it for what it was before it was too late. So I think that’s not lost on me that there’s something to be said for that.
So it’s definitely a difficult question to wrestle with. And I don’t think there are any perfect answers to give here. And so to your point, and in your defense, everything that you’ve said sounds perfectly sound. But it’s far more complicated than I think most people realize even just in this hour, I’ve learned so much about the system that I thought I had a basic understanding of, but you’ve elucidated a lot of those finer mechanics for me in ways that I didn’t realize it was quite so complex.
Dr. Rob Mellen: Yeah. And that’s true. I think that’s a good point that you bring up about Nazi Germany and the role of populism. We see that happening in countries, such as even Brazil today, where you’ve got populist leaders or Italy, where they have a popular vote system and they elected a populist leader back in 2000 who’s now going to prison. That kind of thing certainly can happen in a popular vote system.
My defense of that would be that the Electoral College does nothing to stop that today. Because of what it’s been turned into, a partisan institution, if you will. It doesn’t prevent that from happening.
Dr. Gary Deel: So if there’s a remedy for that, it isn’t the Electoral College.
Dr. Rob Mellen: Not anymore. It probably was back in 1789.
Dr. Gary Deel: Perfect. Well, this has been really informative. I wish we had another three or four hours to get more into the detail of this. But is there anything else that you wanted to share with our listeners, Rob, anything else we should know about this subject before we wrap up?
Dr. Rob Mellen: Just that the Electoral College is not as mysterious as it sounds. All we have to do is take a look at what’s happening within our own states. I would urge all your listeners to be actively involved in the political process in their communities. And, hey, maybe you can become an elector yourself one day.
Dr. Gary Deel: Rob, I want to thank you for sharing your expertise and perspectives with us on these topics. And thanks for joining me today for this episode of Intellectible.
Dr. Rob Mellen: You’re welcome. Thanks for the invitation. I enjoyed it.
Dr. Gary Deel: Likewise. And thank you to our listeners for joining us. You can learn more about these topics by visiting the various APUS sponsored blogs. Be well and stay safe everyone.