Saturday, November 04, 2006

Hell's Handmaiden on the Electoral College

At "hell's handmaiden" there's a good response to my response to her original post on the Electoral College. I think we need to distinguish two basic problems:

(1) The problem of whether the Electoral College was put forward because the Founding Fathers (as most clearly expressed in Hamilton) didn't trust the people with the selection of the President.

(2) The problem of whether the Electoral College can really be justified by the intended justification I suggested in my post.


Unlike the handmaiden, I don't read Hamilton as suggesting at all that the people are not to be trusted with the election of the President. Hamilton identifies five desiderata for the method of electing the President:

(1) The sense of the people should operate in the choice of the person to whom such an important trust was given.
(2) The immediate choice should be made by the people most capable of analyzing what the office requires, working under conditions favorable to rational deliberation.
(3) The way in which it is done should afford as little opportunity as possible to 'tumult and disorder'.
(4) The way in which it is done should put up practicable obstacles to cabal and intrigue.
(5) The President should be independent in the continuation of his office on everyone but the people themselves.

The question is whether (2) should be read as suggesting that Hamilton didn't trust the people with the election of the President. I don't think it should. For one thing, Hamilton repeatedly describes the Electoral College system in what we might call populist terms -- it is, as suggested in desideratum (1), a way of making sure the 'sense of the people' operates in the choice of the President; it is, as suggested in (3), a way of protecting the people from the 'heats and ferments' of factions and parties; it makes, as suggested in (4), the 'body of the people' a bulwark against foreign powers and political intriguers raising a puppet to the post; it makes, as suggested in (5), the President independent (as far as continuation of office goes) of everyone but the people. It would be odd, in the midst of all this justification so favorable to the masses -- in which they are the only ones who can be trusted with such an important task as electing the President -- to put down a justification implying that they can't be trusted to do it.

And when we look at what Hamilton says, I think we can see what his primary point is:

It was equally desirable, that the immediate election should be made by 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. 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.

The handmaiden reads this in such a way that the contrastive case (the alternative to 'a small number of persons, selected by their fellow-citizens from the general mass') is the general mass itself, and to take this desideratum to imply that the election should be taken out of the hands of the populace. But it isn't literally taking the election out of anyone's hands, because the election did not exist prior to the Constitution; and the dependence of the Electoral College on the people means that it was an increase of power for the people. The question is not, "Why was the Electoral College put in place as a buffer between the people and the President?" but "What did Hamilton and others think the Electoral College was an adequate expression of the people's will in the case of the President?" And the reason, I believe, is that Hamilton is still thinking in terms of the failed experiment under the Articles of Confederation, a theme that seems to be in the background of every other desideratum that he mentions. It seems to me that Hamilton's basic questions are whether the choice of President should be:

(a) accomplished by a preestablished body of people -- no, because of desiderata (1), (4), and (5)
(b) accomplished by a large body of people -- no, because of desideratum (2)
(c) accomplished by a unified body of people -- no, because of desideratum (3).

And so what the Electoral College system is supposed to do is to give the choice to a temporary, small, and divided body of people. This body of people is also supposed to be representative (1) and (3), able to deliberate (2), exclusive of those with a vested interest (4), and changing over time (5).

So I don't think there is any hedging going on here. The argument is a reasonably unified line of reasoning, and the whole tendency of that line of reasoning is what we might call populist in nature: to increase the power of the people as a way of reducing the flaws of government as found under the Articles, and to do so in the way that will best insure that the President is someone capable of doing the job. When Hamilton argues that the Electoral College fits that last criterion, he does so by arguing that it requires responsibility to the whole mass of society, rather than to one segment of it. And that is hardly an undemocratic argument.

It is another question whether Hamilton's justification works, and whether, contrary to the intention, the Electoral College might, in fact, be a hedge against the will of the people.

I think it would be right to say that it is uneven. Hamilton is speaking in principle; he doesn't know how the Electoral College works in practice, because he's arguing for its implementation, not for its preservation. And it is clear, I think, that problems have arisen that Hamilton did not foresee. The biggest of these, and I think the strongest basis from which to argue against the preservation of the Electoral College, is the dependence of the whole system on state legislatures. The Electors of a state are chosen entirely by the method determined by the legislature of that state, and this means that an immense amount of power is being entrusted to the states, without many constitutional restrictions put on it. (Indeed, beyond the restrictions later put on the powers of the state to restrict those eligible to vote in the popular restriction, there are no constitutional restrictions at all on this power.) And I think history shows that the states have not been particularly great at using this power intelligently. Electoral law is an immensely important area of law; it is therefore shocking how shoddy the electoral laws in each state can be. Florida, for instance, has shown itself more than once to be unable to figure out what its own election laws require; and it is unfortunately not quite alone in this self-induced confusion. It's also clear that the states have done little more than rubber-stamp party lines, thus limiting the degree to which the Electoral College can actually perform the deliberative function Hamilton argued it should exemplify.

However, it does perform the deliberative function that Hamilton proposed, and this is seen in the dispute over the so-called 'faithless Electors'. The term is not entirely accurate, since almost half of the 'faithless Electors' have voted for persons other than the candidate favored by the party with which they were associated entirely because that candidate had died between Election Day and the meeting of the Electors; the Electors then had to decide how the Electoral College votes would be applied, a problem that would have to be handled anyway, and which is fairly easily and directly handled under the Electoral College system. Of the other votes, one vote (Margaret Leach, West Virginia, 1988) was a protest vote to try to convince people to fix the fact that Electors in the Electoral College are not constitutionally required to vote according to the popular vote. (Leach protested by switching her votes around -- she gave her vote for President to her party's Vice Presidential nominee, and her vote for Vice President to her party's Presidential nominee.) I don't think that should count as a flaw in the system, since it was deliberately done to protest the system itself. So that leaves just over eighty votes in the entire history of the system, and all but a handful of these (less than ten, if I count correctly) were for Vice Presidents, not Presidents. And one of those faithless Electors (Bailey, North Caroline, 1968) at least claimed (although how honest we should consider him to be in this is very disputable) that he was justified because of the popular vote -- while Nixon had taken the state, the district Bailey represented had voted for Wallace, for whom Bailey cast his vote. It's usually held that none of the 'faithless Electors' have had a serious effect on the election, which is not surprising, given how rare they are. So I don't think we can treat this as a serious practical problem. But, of course, it is entirely reasonable to ask whether there is a problem in principle with this.

One of the problems with many criticisms of the Electoral College is that, if they were taken seriously, they would be equally valid against representational bodies of any kind. A first knee-jerk reaction to the 'faithless Elector' problem might be to say that Electors should always and only vote for what the people want; but this isn't a standard to which we consistently hold any other representational body (it could not possibly be maintained in the case of Congress, for instance), so if it is applicable here it would have to be because of the special electoral nature of that body. Likewise, one might argue that Electors should always and only vote for the candidate favored by the popular vote; but this overlooks cases where some sort of deliberation would obviously be reasonable -- for instance, the death cases, which are the most common actual case; or possible cases where new and clear evidence of criminal activity, of which the people could not have been aware, comes to light after Election Day; or cases where the popular vote is far too much in dispute for us to say who received it.

The most promising route, I think, is the one taken by the handmaiden, namely, arguing that, whatever the intent, "the Electoral College is a convoluted and inconsistent, and largely hidden, system that at its heart is an extreme hedge against– not for– the will of the people." Let me first say that I agree that the Electoral College would probably benefit from being less hidden; under the current system this is chiefly a matter of state law, and different states have different methods -- in some cases the ballot is secret, in others it is not, and so forth. But this would not require the elimination of the Electoral College system itself. What I think is more serious is the charge that it is convoluted. I don't think this is actually true; if there is a problem with the Electoral College, it is not that it is inconsistent and convoluted but that it takes something very messy and convoluted and inconsistent -- namely, the popular vote, which is perpetually changing and full of dispute -- and tries to impose order on it with a system that simplifies it immensely to less than three hundred votes, which are stable from election to election since they are indexed to Congressional representation, and which takes most of the pressure off of local disputes over the popular vote. The whole Electoral College system is defined in the U.S. Constitution by eight or nine sentences. The election process is easy to follow, and easier to keep track of than a popular vote count is, which is why news organizations organize their news on Election Day according to Electoral College votes even though what they are tracking is only the popular vote for Electors.

So I don't think there's any clear sense in which the Electoral College is inconsistent and convoluted at all; both parliamentary-style election according to legislative district and a direct popular vote would be even more inconsistent and convoluted, and there's no doubt that they are the only two possible alternatives. And the sheer number of questions you would have to settle in order to handle unusual possible cases for direct election of such an important office as the Presidency is immense. For instance, suppose a candidate takes a clear majority of the popular vote, then dies before actually taking office. Who should become President? His running mate, despite the fact that he's not Vice President yet, and despite the fact that votes for Vice President and President are distinct votes? The leading Presidential candidate for the same party? The person with the next largest count of votes, even if he's from a different party? Should a commission be called? A new election? What if the problem is not death but too many disputed votes? There are advantages and disadvantages to every single one of these proposals, and which is best would have to be hammered out in dispute. Election systems have to be able to stand even in weird cases and unusual elections; one of the beauties of the Electoral College system is that it is a relatively simple way to keep a stable system in unforeseen cases. Only two things can break it -- the collapse of Congress (neither the number of Electors nor the timetable then being determinable) and the inability of state legislatures to oversee elections (no method for determining Electors then being available). In either of these cases we would have more serious issues to worry about. A direct popular vote would have at least as many moving parts.

The handmaiden insists that the Electors are not chosen in any meaningful sense by the voters, but I'm not quite sure what the argument for this would be, taken as an argument against the Electoral College itself. Since the state legislatures have jurisdiction over the means of election, most of what I think the handmaiden has in mind is the common state-chosen process for choosing Electors, which is entirely party-oriented. I'm not much of a fan of it myself, since it means that, in effect, the parties choose the Electors and the voters of the state just decide the party that wins; but this is not what most people criticize when they criticize the Electoral College. In fact, no one can regard the 'faithless Elector' problem as a real problem and think that there's something troublesome about parties picking Electors, since a 'faithless Elector' is just someone who doesn't vote according to the party that picked him. (Not someone who votes contrary to popular vote, contrary to what is usually said.) This is mostly a matter of state law, which is not always the most intelligent system of thought; if there were any basis for eliminating the Electoral College, this would be it. I don't think it's sufficient, given the advantages of the EC; but I do think we should seriously consider reforms in state law that would shift this out of the hands of the parties (e.g., direct voting for Electors, or some such). For, again, it's not a constitutional problem, but a legal one at the level of the states.

So I would agree that the system as it exists needs reform; but it needs reform at the level of state law, not at the level of the U.S. Constitution. It's the method of choosing Electors, not the Electoral College, that is the serious problem, and that introduces an undemocratic element into our election of the President.

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