Lehighbar.org

 THE ELECTORAL COLLEGE: PAST, PRESENT AND FUTURE Presented Tuesday, November 5, 2019By John P. Servis IntroductionThe Framers of the Constitution were worried about giving the people the power to elect the President directly. Why, oh why could this have been?Citizens were tied too closely to local interests and did not understand who or what would be best for the new nation.Citizens were too easily duped by empty promises made by candidates.It would not be practical to hold a national election in the days of horse travel, oil lamps, and quill pens.ABOVE ALL, the Framers feared pure democracy as a form of “mob rule.”James Wilson (1742-1798)Wilson was a lawyer with a practice in Reading, PA, and a delegate to the Constitutional Convention in Philadelphia. He was (in)famous for being one of the proponents of the “Three-Fifths Compromise”, which counted slaves as 3/5 of a person for the purposes of representation in the House of Representatives. He also proposed the Electoral College. He later became one of the first associate justices of the Supreme Court, serving from 1789 to 1798. The Electoral College was itself a compromise between the idea of Congress electing the President and direct election of the President by the people. I Article 2, Section 1 of U.S. Constitution Each State chose a number of electors equal to the number of Senators and Representatives that State had. At a minimum, each State got 3 electors (2 Senators and at least one Representative). When voters go to the polls on Election Day, they actually are voting for the slate of electors who have PLEDGED to cast their ballots for particular candidates for President and Vice President. The only people prohibited from serving as an elector are Senators, Representatives and people “holding an office of Trust or Profit under the United States. ORIGINALLY, under Article 2, each elector would cast 2 votes for President (for 2 different people) and NO vote for Vice President. The candidate receiving the most votes, provided it was a majority of electors, was elected President. The runner-up became Vice President.Example: In the 1796 election, John Adams (Federalist) became President with 71 electoral votes. Thomas Jefferson (D-R) became Vice President with 68 votes. 1800 Election This was the first time both major parties formally nominated “tickets.” The Democratic-Republicans nominated Jefferson for President and Aaron Burr for Vice President. The Federalists nominated Adams for President and Charles Pinckney for Vice President. The election resulted in an electoral vote tie. Jefferson and Burr each won 73 electoral votes. The outgoing House of Representatives would decide the election. There were 16 states with one vote each. So 9 votes were needed to win. The House had a Federalist majority and most Federalists preferred Burr over Jefferson. Federalist Alexander Hamilton convinced the Federalists in Congress to support Jefferson because “we would be better off having a president with wrong principles than someone devoid of any.” Burr would get his revenge in 1804 in a duel in Weehawken, NJ. Hamilton, however, got the Broadway musical. II 12th Amendment Proposed by Congress December 9, 1803. Ratified by 3/4 of the states on June 15, 1804. This new process was used for the 1804 election, Each elector would now cast separate votes for President and Vice President. Also, electors may not vote for presidential and vice-presidential candidates who both reside in the elector’s state- at least one of them must be an inhabitant of another state. III Other Amendments Related To Voting and Elections 14th Amendment (ratified 1868) Can't hold a federal or state office if you swore to uphold the Constitution and then took part in a rebellion against the U.S. or gave aid and comfort to enemies of the U.S. 15th Amendment (ratified 1870) Cannot deny or abridge right to vote based on race, color or previous condition of servitude. 19th Amendment (ratified 1920) Cannot deny or abridge right to vote based on sex. 22nd Amendment (ratified 1951) No person shall be elected to the office of President more than twice. No person who has held the office of President, or acted as President, for more than 2 years of a term to which some other person was elected President shall be elected to the office of President more than once. 23rd Amendment (ratified 1961) Residents of Washington, D.C. given the right to vote in presidential elections. The District can never have more electors than the least populous state (currently 3). 24th Amendment (ratified 1964) Right of citizens to vote shall not be denied or abridged based on failure to pay any poll tax or other tax.26th Amendment (ratified 1971) No one age 18 or older may be denied the right to vote by the U.S. or any state. IV Title 3 of U.S. Code Sections 1-21 Basic Steps: Selection of electors; Meeting of electors where they vote for President and Vice President; Counting of electoral votes by Congress.Current number of electors is 538. 270 needed for majority.48 states have “winner take all” system that awards all of the electors to the candidates who won the state’s popular vote. Maine and Nebraska have proportional representation where electoral votes can be split. Each Governor of a State prepares a “Certificate of Ascertainment” listing all of the candidates who ran for President in that State along with the names of their respective electors. The Certificate also declares the winning presidential candidate in that State and shows which electors will represent the State at the meeting of electors in December.The Meeting of Electors, in each State, takes place on the first Monday after the second Wednesday in December after the presidential election. Electors cast their votes for President and Vice President on separate ballots. The votes are recorded on a “Certificate of Vote.” Both Certificate of Ascertainment and Certificate of Vote are sent to Congress and the National Archives as part of the official record of the presidential election. Each State’s electoral votes are counted in a joint session of Congress on the 6th of January in the year after the meetings of electors. The Vice President, as President of the Senate, presides over the vote count and announces the results of the vote. Vice President then declares which persons have been elected President and Vice President. V State Laws32 States and D.C. REQUIRE electors to vote for the candidate to whom they pledged. BUT….. 21 of those 32 states do not provide any penalty or any mechanism to prevent the deviant vote from counting as cast. These states are: AL, AK, CA, CO, CT, DE, DC, FL, HI, ME, MD, MA, MS, NM, OH, OR, SC, TN, VT, VA, WI and WY. NOTE: There is no provision in the Constitution or federal law that requires electors to vote for the winner of the popular vote in their state. In Pennsylvania, the campaign committee of each candidate names their candidates for elector. This is based on loyalty to the candidate and is designed to discourage faithless electors. In the following states, representing 204 total electoral votes, there are no laws requiring electors to vote for their pledged candidates: AR, GA, ID, IL, IA, KS, KY, LA, MO, NH, NJ, NY, ND, PA, RI, SD, TX, and WV. VI NOT POPULAR? NO PROBLEM1824 Election. This was the only presidential election to require a contingent election in the House of Representatives (finalized on February 9, 1825). Federalists were gone. Democratic Republican Party split into factions and nominated four presidential candidates: Andrew Jackson, John Quincy Adams, William Crawford and Henry Clay. Jackson won the popular vote and got 99 electoral votes but that was not a majority. Adams came in second in popular and electoral vote.This was also the only presidential election in which the candidate receiving the most electoral votes did not become President. Adams won in the House despite having second most electoral votes. Clay detested Jackson and created an Ohio Valley/New England block that gave Adams the majority in the House. In return, Adams named Clay Secretary of State. The term “ corrupt bargain”’was used frequently. 1876 Election. Samuel Tilden (D) won the popular vote over Rutherford B. Hayes (R) (4,300,590 vs. 4,036,298). Tilden received 184 electoral votes to Hayes’ 165. However, 20 electoral votes in Florida, Louisiana, and South Carolina were “unresolved.” Hayes received the 20 electoral votes as part of a deal with the Congressmen from the South. The Republicans agreed to withdraw federal troops from the South, ending Reconstruction. Democrats regained power in the South and promptly disenfranchised black voters through a variety of means. Thus began the Jim Crow era. 1888 Election. Grover Cleveland became the only incumbent President to win the popular vote and lose the electoral vote. Cleveland received 5,540,309 votes to Republican Benjamin Harrison’s 5,439,853. The electoral vote was more lopsided in favor of Harrison (233 to 168).A big issue in the election was tariff policy (Sound familiar?). Cleveland wanted to reduce tariffs substantially because they hurt consumers with higher prices. Harrison sided with American industrialists and factory workers who favored high tariffs to protect American industries.Cleveland would be back in the White House after the 1892 election.*2000 Election. Gore (D) beat Bush (R) in the popular vote (50,996,582 to 50,456, 062). Gore had 266 electoral votes to Bush’s 245 before the Florida recount mess. We learned what “hanging chads” were during the lengthy recount process. Eventually, after the Supreme Court ruled that the manual recount had to stop, Bush won Florida and its 25 electoral votes. Gore supporters began using the phrase, “Selected-not elected” after the Supreme Court’s ruling. 2016 Election. Hillary Clinton (D) beat Donald Trump (R) in the popular vote by a margin of 2.9 million (65,845,063 to 62,890,160). Trump comfortably won the electoral vote by a margin of 304 to 227. Note that 7 “faithless” electors defected from their pledged candidates and cast votes for individuals other than Clinton or Trump. The results of the 2016 election were likely adulterated by various types of Russian interference. VII Baca vs. Colorado Department of State (10th Cir. 8/20/2019)In 2016, Hillary Clinton won the popular vote in the State of Colorado. Michael Baca, an elector pledged to Clinton, changed his mind and cast his vote for John Kasich (a Republican primary opponent of Donald Trump). The Colorado Secretary of State then removed Baca and nullified his vote. Baca filed suit in U.S. District Court in Colorado, claiming, “The Constitution does not expressly or implicitly give the states any power to restrict electors’ freedom beyond the limitation set forth in the 12th Amendment. Also, no Colorado state law provided any sort of consequence for electors who voted for other than the candidate to whom they pledged. The Tenth Circuit, in a 2-1 opinion, ruled that removing an elector for voting for someone other than the winner of the statewide popular vote was unconstitutional under the 12th Amendment. The court wrote, “Although states have been granted plenary power under the Constitution to appoint their electors, the Constitution does not provide the states with the power to interfere once voting begins, to remove an elector, to direct the other electors to disregard the removed elector’s vote, or to appoint a new elector to cast a replacement vote.” On October 16, 2019, Colorado filed a petition for writ of certiorari with the Supreme Court. VIII National Popular Vote Interstate CompactAn agreement among a group of U.S. States and the District of Columbia to award all of their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and D.C. Currently enacted in sixteen (16) jurisdictions having a total of 196 electoral votes: California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington. Note how BLUE these states are.The expressed rationale for the Compact is that candidates pay attention only to voters in “battleground” states, and ignore all the states in which the popular vote outcome is a foregone conclusion. For example, in 2016, 94% of all campaign events took place in the 12 states where Trump was polling between 43 and 51%. 67% of all campaign events took place in 6 states: Florida, Michigan, North Carolina, Ohio, Pennsylvania, and Virginia. * The Compact would not go into effect unless and until it has been enacted by states representing at least 270 (the majority) electoral votes. * This movement started back in 2006. * There may be a constitutional problem with the Compact if it becomes effective: Article 1, Section 10, clause 3 of the Constitution provides, “No State shall, without the consent of Congress… enter into any Agreement of Compact with another State…” * NPV legislation is currently pending in states with 90 additional electoral votes: Georgia, Minnesota, Nebraska, New Hampshire, North Carolina, Pennsylvania, South Carolina, and Wisconsin.

................
................

In order to avoid copyright disputes, this page is only a partial summary.

Google Online Preview   Download