In his veto of Assembly Bill 186, Gov. Steve Sisolak argues that he is speaking for the founding fathers (they were all men) in their cutting and splicing of the Virginia Plan and the New Jersey Plan at the constitutional convention when they were trying to placate not the small states but the slave states, most of which happened to be the small ones.
First of all, the Virginia and New Jersey plans dealt with legislative apportionment and A.B. 186 deals with presidential electors, and one can be dealt with without affecting the other, but set that aside. What is more to the point is that Sisolak could only be speaking for the founders’ version of the presidential electors system if we used it. We don’t.
The system they devised (which is not an electoral college, by the way—the Constitution forbids electors from meeting collegially) was one system. We use a different one.
1. The founders wanted political parties kept out of the functioning of the presidential electors system. But in the years after the constitutional convention, legislators who were members of political parties usurped the founders’ system and turned the system over to the parties. Today, presidential electors are nominated in state party conventions and are what U.S. Supreme Court Justices Robert Jackson and William O. Douglas called “party lackeys and intellectual non-entities” instead of the independent leaders that the founders wanted.
2. That leads to another change the parties made in the system. The founders wanted the electors to be free agents, able to vote in the public interest. But partisan state legislators passed state laws that bind electors to vote for the political parties that nominated them. In the founders’ vision, if the public elected a Hitler, the electors would be free to overturn such a result. They are not.
3. The founders did not want states to have winner-take-all systems. They expected electors to represent districts – a proportional system. James Madison, known as the “father of the Constitution,” knew that winner-take-all victimized the slave (small) states and said the founders had district elections “mostly, if not exclusively” in mind for presidential electors. But the political parties have saddled the country with winner-take-all systems in every state except Nebraska and Maine.
These changes from the founders’ vision may serve the needs of the political parties, though it’s hard to see how it serves Sisolak’s Democratic Party, given that every single elected president who was deposed by the electors and replaced with an appointed president was a Democrat.
But it is hardly the presidential electors system the founders created, nor is Sisolak advocating or defending the founders’ creation.
Dennis Myers is an award-winning journalist who has reported on Nevada’s capital, government and politics for several decades. He has also served as Nevada’s chief deputy secretary of state.