Let’s take another look at the process for the election of the President.
Although we have been clamoring for years that we should do away with the electoral college and make the election by popular vote, recent events may indicate that this might be all wrong. Perhaps it would be better to revisit the indirect method for selection of President originally established in the Constitution, modernize it some, and invest it with even more protection in the future.
Our forefathers understood the weakness of a general election. Under the Constitution as originally written, only members of Congress within local districts were selected by direct vote. All of the other offices mentioned int the Constitution – being members of the Supreme Court, Senators, and the office of President -- were all to be selected by methods other that direct election. Members of the Supreme Court were then and still are appointed by the President with the advice and consent of the Senate. Senators were to be selected by the separate state legislators. This practice was not changed until the 17th Amendment was finally ratified in 1913. Our President was to be selected by an independent electoral college, with the process of selecting members of the college left to the individual states. This is a process we have tinkered with through the years until it bears little resemblance to the method contemplated by the Constitution.
There is no discussion in the Constitution of how the members of the electoral college were to be selected. It appears that the drafters of the Constitution expected that each state would utilize its own process for the selection of its delegates. Some states might use their legislature for the process while others might rely upon direct appointments by governors. Other methods were possible. It appears obvious that in the minds of the original drafters of the Constitution, there was no place for the general public to participate in the process of selecting the national leader.
The process has been changed somewhat, recognizing the vote of the general election as the process for selection of electors. But the core of the electoral college process remains, with its vote being essential to the election of the President.
Now, he process consists of a long primary season conducted state by state throughout the country, major conventions by both parties to pull the state actions together, and a national campaign of the finalists leading up to a national election in November every four years. Considering the campaigning in all the state primaries, the process may take over two years to complete.
But the national election is not the actual selection. In December of the election year, after the results of the general election have become final, delegates to the electoral college submit their ballots for the office of Presidential. It is their ballots that create the final, binding result in the election of President. It is essential to be aware that the general election only controls the selection of delegates to the electoral college. It is the vote of the electoral college that actually constitutes the vote for the office of president.
In 32 of the states, the electors are obligated by state law to vote for the candidate selected by the general vote. In other states the candidates for elector have indicated they intend to support if selected, but they are not bound by federal law to follow through if selected.
In 2020, the Supreme Court released Chiafalo v Washington, 591 U.S. 578 (1920), a decision resolving a procedural conflict in circuit court decisions on proceedings by the electoral college. In that case, the question of whether delegates were obligated under federal law to vote for the candidate identified in the election had been resolved differently in two districts, resulting in the Supreme Court decision to resolve the issue.
The majority opinion held that the Constitution does not impose any restriction on how the electoral college delegates are to vote. In Colorado, delegate electors were fined $1,000 if they voted for a different individual other than the candidate they had been designated to support. While they were fined, their vote for the different candidate was allowed to stand. When the process was challenged in federal court, the Tenth Circuit affirmed this process.
In Washington, if an elector attempted to vote for a different candidate, they were disqualified, and an alternate who had posted the correct vote was substituted. When this process was challenged in court, the Ninth Circuit approved this procedure.
The Supreme Court deemed this to create a conflict between the districts and granted cert. In resolving the conflict, the court ruled that the Colorado procedure of keeping the errant electors and counting their wrong votes but imposing monetary fines for the violation was an acceptable remedy. It held that the Washington practice of disqualifying the errant electors was not proper. The importance here is that the ruling by the Supreme Court recognized the electoral college as a distinct, separate process, and concluded that it was this process – and not the general election -- that controlled the final decision.
Under current practice, the process has become enormously expensive and time-consuming and is taking years to successfully accomplish. This leads to an obvious conclusion that many individuals who might be well qualified abstain from running because of the difficulties, uncertainties, and expense of the candidate selection process.
Once the selection of candidates for each major party is accomplished, the final campaign for election to office, overwhelmingly centered on television, becomes entirely dictated by so-called campaign experts. Although there may be a number of individuals on the ballot, the reality is that the final race will be between the two major parties. Their candidates are prepped and presented by special consultants with every detail scripted and edited to meet the experts’ criteria for winning the race.
In fact, the elements and factors necessary to conduct a winning campaign have little if anything to do with the abilities necessary to administer the office once elected. The objective of the campaign is only to achieve votes at the general elections; there is no necessity to demonstrate actual, relevant experience or ability to perform the tasks that will be expected of the one elected to the office being sought.
Consider, for example, the so-called television debates expected in our current Presidential campaigns, and the importance that is attached to them. Under the rules, the participating candidate is not advised in advance of the questions that will be asked, may not refer to any notes or reference material, and may not seek assistance from any qualified advisor. The candidate’s ability to succeed under these rules has no bearing on what would ever be expected from actual service.
We should revise the entire process and return to the methods as originally set forth in the Constitution. Recognize the significance of the electoral college. Hold elections for the electors in each state at the very beginning of the campaign period, with reference to adherence to and support of party structure but before the specific candidates have been selected. After the electors are chosen, then proceed as necessary to select the candidates from each party. Then conduct a campaign as necessary to acquaint the electors with the actual qualifications of the candidates. This process should only take a matter of weeks if not days and would replace the period of up to two years that is now consumed in the presidential process. Then conduct an election involving only the electors from each state.
This would result in an election process that could be completed from start to finish within a few months instead of years at a fraction of the cost now incurred. When not faced with the monumental cost in terms of dollars and time committed, we might find that the quality of those willing and able to serve might be considerably improved. Of major importance, the small group of electors from each state could concentrate on the candidates’ actual experience and abilities to do the job rather than their abilities to get themselves elected. The candidate’s affinity for television appearances would be an interesting quality but not an overwhelming one, as it is now.
Our forefathers knew what they were doing when they designed the system in the first place. We finally got exactly what the founders were trying to prevent when we ignored their work and changed the rules to connect the process to a general election. There is no guarantee that the mess our country is now in could have been avoided in all instances, but there is good reason to believe that the candidacy of the current office holder might not have survived if the electors at the electoral college had had the full discretion to go their own way.
Assuming the country can survive the fiasco we find ourselves in today, plain common-sense dictates that we take another look at how the election process was originally designed. If it is not too late, the old processes should be put back into place, with a few tweaks perhaps, but otherwise without delay.