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Graduating from the Electoral College

December 16, 2016 By: NCVeditor Category: Current Events, Politics, Randall Amster

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“Don’t Know Much About History…”

by Randall Amster

It’s understandable why some are viewing the Electoral College as the last bastion of democracy right now, even as this is also ironic given its ostensibly anti-democratic nature. Without delving into the historical debates, including the potentially gendered and racial roots of the system, it is generally accepted that the framers “feared a tyrant could manipulate public opinion and come to power” and thus “did not trust the population to make the right choice” every time. The genesis, then, was apparently the quite undemocratic notion of limiting the electoral power of the people.

Of course, this is also a republic, and the Electoral College reflects that reality. We can debate endlessly whether it’s a fair system, whether it skews power to smaller states or a handful of swing states, whether it decreases incentives for turnout, whether it reflects elitism, and more — but that won’t help us in the here and now. Instead, we might consider the paradox of how this structure applies to the present situation, one in which the “will of the people” actually “elected” the “losing” candidate by nearly a three million vote margin. As such, the call is being made for the Electoral College not to override the consensus of the majority, but actually to uphold it.

In Federalist No. 68, Alexander Hamilton (yes, him) penned words that are less frequently cited in current analyses, yet are highly applicable to present moment: “The process of election 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. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States.”

The idea, then, was that a demagogue might possess the “talents for low intrigue, and the little arts of popularity” sufficient to win in one state or a few, but surely not to win enough of them to be elected president. (This was, of course, pre-Twitter and the rest of the mega-media age.) Thus, the presence of the system itself was seen as a check on demagoguery and intrigue. What needs to be apprehended, however, is that the Electoral College has never been successfully used after an election as a tool to overturn it; the point seems to be that its very existence alone would mitigate against someone whipping up the populace in enough places to win the election. Indeed, as one commentator has observed, the system was designed potentially to enshrine “a minority government” — rather than working in reverse as a means to elevate a majority-approved one.

So now the anti-democratic Electoral College is being asked to save the vestiges of democracy. And in an additional nod to irony, a system that was designed to prevent “tumult and disorder” (again, via Hamilton) could actually foment it instead. In fact, what we are faced with here is someone who availed themselves of the inherent illogic of the Electoral College, leading some to go from calling for the system to be abolished to calling for it be utilized proactively. Perhaps the framers were prescient on many levels, but they didn’t quite foresee this eventuality. In any case, they’re not here now and we are, so whatever transpires at this juncture is up to us. It’s time to consider graduating from the confines of this system and forging a different path in the world.

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The current situation is completely unprecedented, and thus requires us to think beyond the limits of the structures now in place. For starters, that could indeed look like a more activist Electoral College actually exercising an oversight function to prevent an unqualified individual from being president; this has never happened before, but this entire era is like that in many ways. The result might be “tumult and disorder” — but the same could be said (and more) for what will likely ensue if the present result is validated. Let’s face it: this system wasn’t fair or democratic at the outset, so we shouldn’t stretch the bounds of reason to make arguments about upholding its virtues. This is more of a “desperate times require desperate measures” moment.

So the first step beyond the hallowed halls of history is to stop deifying the framers and their byzantine structures. Hanging our hopes on upholding the tenets of an unworkable system is disingenuous; maturation means admitting that the order is flawed and seeking out an alternative. In this light, any petition to members of the Electoral College isn’t so much about fulfilling their (unspecified) constitutional duties or manifesting the (uncertain) intentions of the erstwhile founders; rather, it’s an appeal on human terms, to common sense and good taste. Couching it in constitutional trappings only leads back to the horns of the dilemma already identified, in which we’re seeking democracy from an undemocratic structure. If the intention simply is to have the winner of the popular vote be president, then let’s just say that and scrap the rest of the arcana.

These are choices that can be made, and doing so could be an important step in rebooting this system. As Garrett Epps wisely wrote in The Atlantic last month: “Electors are of course free to vote their consciences. If they think a popular-vote loser shouldn’t be president, they don’t have to vote for him…. But let’s not pretend that Madison and Hamilton wanted them to. Nobody in 1787 foresaw 2016.” Today’s world is wired in ways far beyond the scope of original intent, and while we can be informed by history’s teachings we need not remain beholden to their limits. In contemporary education, for instance, the premium is on collaborative, interactive learning; we can apply such lessons to our political processes and imagine new extrapolations and possibilities.

But on the way to tomorrow, we still have to cope with today. Perhaps this is our cultural final exam, in which we’re asked to synthesize what we’ve learned up to this point and apply it in a novel context. The resultant framing almost reads like a graduate school essay question: What happens if one candidate wins the popular vote by a wide margin, while the other one handily wins the Electoral College? Consider what answers you would accept as valid if you were asked to grade or evaluate the responses. Possibilities might include: schedule a revote; declare both as co-presidents; have Congress determine the winner; disband the Electoral College; secession. Any of these might become tenable propositions with the right outlining and argumentation.

Still, this is real, and not merely a scholastic hypothetical. At present we have a system in which roughly half of the electorate doesn’t participate, a quarter declares victory, and the other quarter begrudgingly accepts the result while stewing and plotting for the next cycle — and no one really seems happy about any of it, from the cost and machinations to the vitriol and hyperbole. This system hardly even merits a passing grade anymore, as crises worsen and time runs short. We can do better than this, if we put our minds to it and refuse to be limited by prior knowledge. Indeed, the whole point of learning is to build upon what we know and use it to navigate an uncertain future. Students are regularly asked to do this, and it’s time we learned from them.

Randall Amster, J.D., Ph.D., is Director of the Program on Justice and Peace at Georgetown University, and is the author of books including Peace Ecology.

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