America Loses When Everyone Chooses

So many mentions of Federalist 68 in the news this week. So I read it. (Well, re-read it, as I’m sure this was suggested, if not required, reading in Mr. Strother’s History class.)

Federalist 68 is the argument made for adoption of the 12th Amendment by Alexander Hamilton. The 12th Amendment provides the procedure for electing the President and Vice President, which is through the electoral college.  Each state gets one elector for each member of congress (both houses). This is to provide fair representation for small states. In modern elections it’s been argued that it causes under representation of larger states, since even the smallest state gets two Senators and one member of the House, even if their population isn’t really big enough for a House member. Larger states get two Senators as well and House members portioned by population.

What stands out to me isn’t what the news keeps telling us, that the electoral college exists to protect us from ourselves. We weren’t meant to have a say. Hamilton never thought the general public would or should be allowed to pick the President at all. The voters were to select electors, who themselves were to be “men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.” (I know… Hamilton was suuuuper wordy, and he seems to have never spoken in rhyme. Try to stay awake. This will be over soon.) In other words, electors were supposed to be wise men capable of deliberating and making the correct choice for President.

The electors represent the “sense of the people” not the will of the people. The voters in no way select a Presidential candidate. They select someone they trust to pick the best person to serve as President. It’s democracy once removed (or indirect democracy if we’re being pedantic). As an extra safeguard, in order to win the Presidency, the victor has to receive more than half of the votes from the electoral college. Anyone who can’t do that, can’t win. If no candidate gets a majority of the votes, the House of Representatives gets the names of the top five candidates and they choose “the man who in their opinion may be best qualified for the office.” It’s not clear that the ultimate winner has to be chosen from the top five finalists. There’s nothing there about all the electors from a state being required to all vote the same way. Each state is supposed to convene its electors, and they debate and deliberate and then each casts a vote. The votes from all of the states’ electors are then tallied.

Despite what the news today says, Hamilton didn’t worry at all about an unfit person becoming president. He literally says, “It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.” The problem is over the years we’ve lost sight of what the founding fathers had in mind. They didn’t want us picking the president. (Some of them did, but the compromise was that we shouldn’t.) They were totally okay with the occasional demagogue making it to Congress. Hamilton says “talent for low intrigue and the little arts” might charm a State, but with this electoral process in place no one like that could ever be President.

Prior to 1820 a limited number of states held popular votes to give direction to electors. Most simply chose electors and trusted them to do the job. By 1824 all states were holding popular votes, and of course, it immediately all went to hell. There were four candidates in the 1824 election. Andrew Jackson received the most popular and electoral votes, but he did not receive the majority of electoral votes. So the four names were sent to the House of Representatives, and they chose the most qualified man, John Q. Adams, to be president. Andrew Jackson was probably illiterate, and certainly irrational. John Quincy Adams was worldly, dignified and intelligent. No brainer. Four years later Jackson trounced Adams and we had our first potentially crazy person in the white house. (Yes, he was a war hero and a decorated general, but he was more George Custer than George Washington.)

In the intervening years, we’ve moved completely away from Hamiltonian democracy and toward the Jeffersonian ideal of a more direct-democratic model. In modern elections, each state’s electors are required to vote for whoever wins their state’s popular vote. The actual vote casting of the electoral college is ceremonial.

Based on state by state popular votes in 2016, Donald Trump should receive 306 electoral votes. Next Monday, the electoral college will convene in 50 state capitals and duplicate the state level popular votes in direct contradiction of Federalist 68. Barring a revolt of 37 Republican electors, and despite Hamilton’s prediction “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,” an absurd cartoon villain will win the presidency.

If 37 Republican electors cast their votes for someone other than Trump, the House of Representatives will convene to select our next president. I can say with 98% certainty that won’t happen, and with 100% certainty that a Republican would still win in that scenario. That Republican probably wouldn’t be Donald Trump, but would more likely be Mike Pence or Paul Ryan. Ryan is going to be President eventually. Now’s as good a time as any.

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