Donald Trump is extraordinarily effective in courting admirers. Those who said he could not win the Republican Party nomination learned that like all demagogues, he draws his strength by dividing the populace by turning the people against each other. He then frightens people by telling them their system and security are in peril, promising that, “Nobody knows the system better than me, which is why I alone can fix it.”
If we elected our president by a pure democratic vote, such a demagogic appeal could determine the outcome. Mindful of this, our founders created a republic, a system of government in which authority is rooted in the people but one that restrains the people’s exercise of that power. That was one of the reasons for the creation of an Electoral College.
A point of contention in the drafting of the Constitution was on how to choose a chief executive. There was support for a “chief magistrate” filled by a troika. Some favored state legislatures choosing the president, and others favored having Congress select the president. In the end, they compromised on the Electoral College; each state would determine how to select its electors and each state was given the same number of electors as it had senators and representatives. The electors would choose the president.
Every four years, there is debate whether the college has outlived its usefulness. Why not choose our president by a popular vote? New York has agreed to join the National Popular Vote Interstate Compact, which moves toward having state electors vote for the candidate who wins the overall national popular vote.
Perhaps this presidential election gives us reason to re-evaluate the virtues of the college.
The founders believed in the democratic process, but they did not trust the collective wisdom of the majority of citizens to elect a president. The founders knew the public can be susceptible to demagoguery — a pitfall of a pure democracy. The college was designed as a layer of security against men who, as James Madison noted, “may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people.”
George Washington favored the college, not only because it unanimously elected him president twice, but because he feared the presidency could fall prey to a demagogue. He manifested this fear in his farewell address, warning against political parties that could agitate citizens with fear and divisive rhetoric, as well elevate to power a person who capitalized on that fear.
In the last century, the college has been seen only as a reflection of the popular vote. However, there is no federal law or constitutional requirement that electors are to vote as a reflection of the popular vote. In 29 states, electors are bound by state law to cast their votes for the candidate who wins the statewide popular vote. That means that there are 21 states that have no such requirements. In those states, the electors are free to vote or abstain as they please.
Presidential candidates John F. Kennedy, Harry Truman, Adlai Stevenson, Richard Nixon, Gerald Ford and Michael Dukakis had electors pledged to them vote for someone else. Such an unfaithful elector could swing a close election to a “losing” candidate or force an election into the House of Representatives for lack of a majority of electoral votes. In 2000, George W. Bush won by only five electoral votes. In 1960, 15 unpledged Democratic electors in the South almost threw the election into the House of Representatives when they voted for Harry Byrd, who was not running for president.
Both political parties have found fault with the college. However, in this unpredictable political year, perhaps it is time to re-examine whether it could still be the layer of security envisioned by our founders.
Sol Wachtler, a former chief judge of New York State, is distinguished adjunct professor at Touro Law School.