Sometimes a Quaint Notion

What defines us foremost as citizens is the right to vote. From childhood, we have always thought that our vote counted as much as anyone’s and that no one’s vote would be invalidated or discarded. When it came to the presidency, democracy meant, at least, that we had the opportunity to throw the bums out every four years.

The Constitution does not say that everyone gets to vote and the candidate with the most votes wins. It is not the direct vote of the people—a nationwide popular vote—that counts. Rather, under Article II: “Each State shall appoint, in such Manner as the Legislature thereof my direct, a Number of Electors.” That number is equal to the number of senators and representatives in each state. The electoral-college system, which Alexander Hamilton called “at least excellent” (Federalist Papers, No. 68), did not guarantee results consistent with the will of all the people.

It was a political compromise. When Article II was drafted in 1787, Southern states opposed election of the president by a nationwide popular vote. The population of the South was about equal to that of the North, but the slave population made up a third of the Southern population and slaves were ineligible to vote. Therefore, the South felt that they would be disadvantaged in their voting power compared to Northern states.

The drafters addressed this concern by resorting to the “three-fifths compromise.” Three-fifths of a state’s slave population would be counted as part of the state’s total population for the purpose of determining the number of electoral votes the state would have. The slaves themselves, of course, were prohibited from voting until the Thirteenth Amendment abolished slavery 1865.

Hamilton believed that the “sense of the people” should guide the choosing of a president, but he rejected the idea of the people being able to elect the president by a nationwide popular vote. He argued for the idea that “men most capable of analyzing the qualities adapted to the station” should choose the president and that “a small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.”

By placing the choice in the hands of a small number of “men chosen by the people for the special purpose” the process “affords a moral certainty, that the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” Hamilton believed that the electors, “dispersed as they would be over thirteen States” would not be prone to corruption.

James Madison foresaw that a faction could gain influence over the whole population and could “sacrifice to its ruling passion or interest both the public good and the rights of other citizens” (Federalist Papers, No. 10). Yet Madison, like Hamilton, believed that the United States was so large that the entire country was not in danger from corruption: “The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.”

The nation was simply too big to fail. It was a quaint notion that time has proven ephemeral. Hamilton and Madison did not anticipate the telephone or television, let alone tweetstorms and social media. Corruption and manipulation of the vote has become so much easier.

Today, there are 538 electors that comprise the electoral college; it takes 270 electoral college votes to win the presidency. However, an electoral college victory does not always match the nationwide popular vote. In two of the last six elections, the electoral college awarded the presidency to candidates who lost the popular vote.

(The electoral-college scheme benefits less populous states because they are assured of at least three electoral votes regardless of population. The scheme also disadvantages Black voters, whose preferred electoral slate will be unable to win in many states despite substantial populations of Black voters. See The Electoral College, Explained.)

The notion that everyone’s vote counts is at risk. A large sub-faction of the Republican Party—70 percent of all Republicans according to recent polling—is convinced that Joe Biden was not legitimately elected president. It is impossible to square that conviction with the facts unless you believe that some votes should not have been counted. Biden won 306 electoral votes and his margin of victory in the popular vote was more than seven million.

It cannot be that democracy is legitimate only when Republicans get elected. Republicans are not entitled to the presidency. Many in that party are now tinkering with state election laws to make voting more difficult and inconvenient. They would prefer a system in which some people are discouraged or prevented from voting and in which some votes count and some votes don’t. They have no qualms about stacking the deck against Democrats.

The frailty of our Constitution makes tinkering in presidential elections possible—even likely. Most states require the electors to vote according to the state’s popular vote. What typically happens is that the polit­ical parties in each state nomin­ate a slate of potential electors who pledge to vote for their party’s candidate. The popular vote in the state determines which party’s slate will cast that state’s electoral votes and thus determine the outcome of the presidential election. Republicans are motivated to tinker with state election laws in the hopes that their party’s slate will always win.

The Constitution does not require that a state to choose its electors according to the popular vote in that state. Nor does the Constitution give political parties any role in the election of the president. Many states do not require the electors to vote for the winner of the state’s popular vote. The Constitution provides no assurance that the election of a president by the electoral college will be consistent with the national popular vote.

I hope dearly that the American experiment has not failed and will not fail in the years ahead and beyond my lifetime. Lately though, I cannot dispel the cloud of anxiety that the Nation is broken and that it may be beyond repair.

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Some other stuff for later,