My lunch buddies and I had an animated discussion the other day about the electoral college. This of course (d)evolved into a discussion about our constitution and a popular national election for president. One of our members maintained that individual citizens actually have no constitutional right to vote for president at all - that only the states have a constitutional right to select the president in the form of the electoral college, and that the states have the right to select those electors any way they please (notably not by election at all).
A few googles later we were astounded to see that nothing in the constitution seems to disagree with his assertion. In fact we see that in several instances (including more than half of the original 13 states in the first presidential election) the states did do exactly this : simply designated their electors without benefit of a popular vote. Apparently we vote for president only because our states let us.
So, how did we get where we are today?
And what stops a state legislature dominated by one party (or the other) from abolishing the election in their state and simply designating electors to choose their party’s candidate for president?
They are right. The idea of all states choosing its Electors via popular vote is a somewhat recent one. In the early years of the union, many state legislatures simply appointed the Electors they wanted to; the people only had an indirect voice through the election of their state legislators. Remember also that US Senators were not directly elected until the ratification of the 17th amendment.
Well, they’d never survive the next election for their legislative seats. People don’t like being disenfranchised.
Also note that the EC isn’t a grand scheme designed by our Founding Fathers[sup]tm[/sup], it’s a compromise hammered out in committee, approved not because everybody liked it, but because it was the only thing nobody absolutely hated. They didn’t trust the will of the masses, and left a lot of things out of their hands. I think we deserve that choice.
If the state legislature is dominated by one party, then it is highly likely the people of that state would end up voting for the presidential candidate that belongs to the same party. So the party in power would have little to gain, and lots to lose, like their seats next election.
Ennnhhh… The Virginia state legislature in 2006 had Republican majorities in both houses, but Webb still won (barely). I do agree, though, that any legislature that tried that would get tossed out on their asses.
There’s no legal bar to a state deciding to name electors through a vote of the legislature. As I recall, during the 2000 recount controversy, the Republican-dominated Florida state legislature was preparing to recognize the Bush electors before *Bush v. Gore *rendered such a move irrelevant.
At least a few states have also entered into a compact stating that they will award their electors to whomever wins the national popular vote, regardless of how their own citizens vote, as soon as enough states sighn on to the compact that the winner of the popular vote is guaranteed to win the election.
Personally, I’d like to see at least one state award it’s electors by combat. I think the voters in a state like Texas would go for it, but some crybaby would probably say that’s unconstitutional!
But if the constitution delegates this power entirely to the states, how could it be unconstitutional?
What if a “red” state and a “blue” state were to wager each other’s electoral votes (or an equal number anyway) on a particularly popular football game? That might actually garner popular support in those states.
Is there actually no limitation built into the law?
And, back to the original question: How did we end up in the current situation where a popular election is the norm in each state - so much so that people complain that there is not a national popular election?
Also remember though it’s Congress that COUNTS the votes, and they can choose whether or not to count them. Congress could’ve said, those are not valid and we won’t count them. This was what almost happened in the Hayes/Tilden election of 1876.
The real reason for the EC was simple, the founding fathers didn’t trust the masses. The didn’t believe a direct democracy was best because it didn’t protect the minorities. The Senate of the United States was originally chosen by state legislatures.
Remember that, in the late 1700s most people count read, they didn’t have access to newspapers. Newspapers didn’t become overwhelming popular till the penny papers and dime novels came out.
So people weren’t as informed and it’s reasonable to expect they wouldn’t have the information to make an informed decision.
A completely grotesque process, like betting the results on a football game, would probably run afoul of the “due process” or “equal protection” clauses of the Fourteenth Amendment.
Because legislators respond to the will of their constituents, and constituents wanted a direct voice in choosing the presidential electors. Some states always had a popular election; among those that didn’t, most converted between 1800 and 1840, during the Jeffersonian and Jacksonian eras. South Carolina, the most aristocrat-dominated of states, was the last holdout–not converting until after the Civil War.
When legislatures did the voting, national issues tended to trump state and local politics. (Vote for me to get Jefferson in the White House!) This is not necessarily what legislators want. They want you to support them as persons, or for the pork they bring, and not throw them out based on national affiliation.
So legislatures did not always resist popular elections.
However this refers to “the right to vote for … electors” as if it were already established elsewhere. Had it in fact been established elsewhere, or was it just such a common practice at that point, that such a right was assumed?
And, given the punishment clause, does this essentially force states to hold elections for POTUS, or give up any say in the choice of president? (i.e. 100% denied a vote => 100% loss in electors)
No, states could still elect electors within the legislature if they wished–in fact, newly admitted Colorado did so as a one-off in 1876, after the Fourteenth Amendment was ratified.
The reduction-of-representation clause only means that, if you do conduct a popular election, you have to allow all adult males to vote or else risk reduction of your representation in Congress. It was never enforced, even when it arguably should have been because Southern states were imposing “literacy tests” to disenfranchise large parts of their population.
I was referring to the more generic language within Section One of the Fourteenth Amendment in suggesting a possible grounds to disqualify absurd laws such as your football example. To some degree this is an exercise in silliness–it’s easy to make up absurd laws and then ask which specific constitutional provision they violate. (Usually none–because they’re absurd, no one bothered to forbid them.) The “equal protection” clause (“No state shall . . . deny to any person within its jurisdiction the equal protection of the laws”) can be used as a catch-all in such cases–why would a particular football player get a say in how a state casts its votes, but not another person? There is no “rational basis” for such a law.
An interesting book that touches on this issue is “Greeks and Romans Bearing Gifts: How the Ancients Inspired the Founding Fathers.” It wasn’t so much about protecting minorities as it was about the founding fathers’ view that the masses would be less rational in their decision making than the more knowledgeable(presumably) elected officials. So the approach taken was to make the state legislatures and representatives answerable directly to the people, while having those legislatures choose senators and the president.
The original view of the United States was just that - a federation of independent states, not a single state with smaller political sub-units, which it has since become. I recall a line from Ken Burns’ documentary “The Civil War” that said something to the effect that before the Civil War, people used the phrase “the United States are…”, while after the Civil War, the phrase became “the United States is…”
In some ways, this is one of the key principles of conservatives - that the country would be better off as a much looser federation of independent states and a much less powerful federal government, although that particular principle seems to be fairly context-dependent, IMHO.
The answer to the OP is that the Jacksonian period of Democracy centered on empowering the people in various ways. This is when conventions to choose candidates started happening, this is when most states converted to popular vote to select the electors and this is when we went from a nation run by aristocrats to a nation governed by the representatives of the mob.
The general consensus seems to be that state legislatures would never disenfranchise people because of the consequences to those legislators. But that doesn’t really address the question of whether there was law in place enforcing a popular election, or rather preventing some other means from being used.
The football situation was merely meant to be an example in which the popular repercussions would not necessarily discourage disenfranchisement. The absurdity was not really intended to be focus of the example, but by addressing the absurdity, you seem to imply that there would not otherwise be any legal barriers to some theoretical other method of choosing, providing that it did not otherwise violate the law.
You’ve argued that the equal protection clause might prevent this absurd situation because an individual involved in the process would have more say than a typical citizen. But doesn’t that apply to our current system as well, where the vote of a person in North Dakota weighs 6 times more than one of a person in California? Or does equal protection only extend within a state and not among the states?
No, there is absolutely nothing in federal law or in the United States Constitution requiring states to conduct popular elections of electors. The Constitution reserves the choice of the method of choosing electors to the states.
However, this doesn’t mean that states have a completely free hand. There are other constitutional provisions that constrain what states can do. If a state does conduct a popular election, it can’t disenfranchise people on the ground of race, color, gender, age if over 18, or failure to pay poll taxes.
The “equal protection” clause would probably be construed as a brake upon other similarly arbitrary modes of election, such as enfranchising only people whose names being with “L”, or betting on a football game. There are no precedents to cite here, because no state has ever attempted anything so weird.
It applies to the states, and doesn’t override other previously existing constitutional provisions, such as the malapportionment ineherent in the United States Senate and the electoral college.