On Monday, members of the Electoral College are meeting in state capitals throughout the nation, with the expectation that they will follow tradition and formally make Donald Trump the next president of the United States.
The divisive nature of his campaign and the fact he lost the popular vote by an unprecedented margin in modern American history has brought the Electoral College to the top of mind of many citizens who wonder whether electors are bound to the popular vote or whether they were expected by the Founding Fathers to exercise independent judgment. As I detail in my book The Framers’ Coup, the Constitutional Convention negotiations that created the compromise of the Electoral College may shed some light on the Framers’ original intention.
In the summer of 1787, the delegates in Philadelphia who were writing the United States Constitution mostly agreed on the importance of establishing a very powerful president. Figuring out how to select that president proved to be a more vexing problem.
For most of the convention, the delegates had agreed that Congress would choose the president, who would be made ineligible for re-election in order to ensure his independence from the institution that selected him. Most delegates opposed the direct popular election of the president.
George Mason, an important Virginia delegate, declared that “it would be as unnatural to refer the choice of a proper character for chief magistrate to the people as it would be to refer a trial of colors to a blind man.” Roger Sherman of Connecticut objected that the people would “never be sufficiently informed” about candidates from other states and thus would “generally vote for some man in their own state,” which would mean that “the largest state will have the best chance for the appointment.”
After endless debates, the convention eventually delegated the issue to a committee, which proposed that the president be chosen by special electors, whose appointment would be made according to a method specified by state legislatures. Because the body of electors would have no perpetual life, it would have no particular interests to defend. A president selected in this fashion would not be dependent upon the institution selecting him.
Moreover, the electors would presumably be prominent people of superior knowledge and independence, which is what inclined the delegates to consider entrusting them with a task as important as choosing the president.
The committee also specified that electors would cast ballots in their home states in order to preclude, in Gouverneur Morris’s words, “the great evil of cabal.” Requiring that electors in the different states meet simultaneously throughout the country made it “impossible to corrupt them.”
The issue of how to apportion presidential electors naturally provoked disagreement between large and small state delegations. The committee proposed a compromise: Each state’s number of presidential electors would equal its number of congressional representatives plus its two senators. Small states would fare better than if the apportionment had been based strictly upon population, yet large states still derived a substantial advantage from their greater populations, as reflected in their number of congressional representatives.
Because the number of electors depended partly on a state’s number of congressional representatives, the power of Southern states in the Electoral College would reflect their slave populations (because five slaves were counted the same as three free persons for purposes of apportioning the House). Without such a concession, Southern delegates would never have agreed to this mechanism for selecting the president.
In addition, the committee proposed that no candidate could be elected president without securing the votes of a majority of the electors appointed. If no candidate received such a majority, then the Senate (according to the committee’s proposal) would choose the president from among the top five vote-getters.
Convention delegates mostly assumed that presidential candidates would rarely win outright majorities in the Electoral College—at least once George Washington had ceased to be a candidate. The vast geographic scope of the country—especially in an era of relatively primitive transportation and communication—would prevent presidential candidates from becoming widely known or coordinating their campaigns across states. Thus, Mason predicted that “19 times in 20 the president would be chosen by the Senate.”
The choice of the Senate was a sop to the small states, whose influence would be much greater there than in the House. In essence, the Senate, in which small states would exercise equal clout, would choose the president from among the candidates “nominated” by the Electoral College, in which the large states would exercise greater influence.
However, several delegates then objected to the Senate being the de facto selector of the president on the grounds that the Senate and the president were slated to jointly exercise the powers of appointment and treaty making. Mason warned that “if a coalition should be established between these two branches, they will be able to subvert the Constitution.”
Connecticut’s Roger Sherman responded by suggesting instead that the House choose the president when no candidate won the votes of a majority of the electors appointed. Because his proposal, which the convention approved, prescribed that the House vote on selecting the president be by state delegation rather than individual representatives, small-state influence would be preserved.
But for the last 200 years, the Electoral College system has not worked the way the Framers intended. Many Framers anticipated that state legislatures would pick electors, rather than turning the selection over to voters.
All of the Framers anticipated that the electors, however chosen, would exercise independent judgment in selecting the president, yet they ceased to do so almost immediately (because political parties, which the Framers were not anticipating, began running slates of electors pledged to support the parties’ candidates). Finally, the Framers anticipated that candidates would rarely if ever win the votes of a majority of electors, meaning that the House would pick the president—something that, in fact, has happened only once in American history.
While the original understanding of the Constitution clearly contemplates electors’ exercising independent judgment, unwritten norms that have evolved over more than two centuries dictate (with only trivial exceptions) that the electors simply rubber-stamp the result of the popular vote in their states.
Functioning democracies depend at least as much on respect for such unwritten norms as on fidelity to the Constitution’s written text. For that reason, for Republican electors on Dec. 19, 2016, to vote against Donald Trump would amount nearly to a coup against democracy.
Yet one cannot fail to note the irony—and to recognize the danger—in the electors’ choosing as president a candidate who has systematically flouted many other unwritten norms of democracy. Before the election, Trump repeatedly refused to state that he would accept the legitimacy of the outcome if he lost. He has challenged the notions of an independent judiciary and a free press. Trump has also encouraged foreign intervention in the American presidential election (which, it turns out, actually occurred), threatened to have his political opponent thrown in jail if he won the election, and regularly encouraged violence at his political rallies. These are not the statements and actions of someone who respects democracy.
For Trump’s opponents to remain committed to the unwritten norms of democracy while he himself has regularly flouted them is not only ironic but also potentially suicidal. Unilateral disarmament rarely works out well for its practitioners. In addition, there is a nontrivial risk that Trump, under a particular set of conditions (a major terrorist attack, a foreign war that it will be largely within his control to instigate), will be both inclined and able to further subvert American democracy. Were that to happen, one might well look back at the Electoral College’s decision as the last best chance to have stymied him.
But, of course, one never has the luxury of knowing in advance how history will turn out. In my (uncertain) opinion, Trump has not done enough since the election to justify the Republican electors’ rejecting the unwritten norm that the winner of a state’s popular vote in a presidential election is entitled to that state’s electoral votes.
The fact that Trump has already systematically flouted democracy’s unwritten norms doesn’t mean that everybody else can do so without hastening the demise of our democracy. Should Trump attempt during his presidency to subvert democratic norms more than he has already done, the American people will still have ample opportunity to determine whether he succeeds in doing so.