There is a lot of talk going around about presidential electors protecting the country from a Donald Trump presidency.
The founding fathers (they were all men) created the presidential electors system as a back-up to the election. The public would elect, but the electors would have to ratify the public’s election by appointing the new president. If they thought the public had made a mistake by irresponsibly choosing a dangerous character to be president, the electors could choose someone else entirely.
After losing the election, Trump is likely to win the appointment as president by the electors on Dec. 19. He collected 290 electors while Hillary Clinton got 228, though 630,877 more voters supported her. Nevada has six electors, the number of its members of Congress. A case can be made that a candidate like Donald Trump is exactly the reason the founding fathers created the presidential electors.
As it happens, we no longer have presidential electors as the founders created them, which is part of the reason they’re not going to block Trump.
First of all, though people call the electors a “college,” they aren’t one. Instead of gathering and meeting together, they vote in their state capitals to prevent them acting collegially. That way, they don’t engage in machinations and manipulations.
The founders labored hard to prevent “factions” – as political parties were then called – from having a role in the system, but legislatures have long since turned the job of selecting candidates for elector over TO the parties. As U.S. Supreme Court Justice Robert Jackson wrote in a 1952 court opinion, “This arrangement miscarried. Electors, although often personally eminent, independent and respectable, officially became voluntary party lackeys and intellectual nonentities.” The loyalty of presidential electors now is first and foremost to their parties.
The founders expected and intended that the electoral votes would be cast by free agents who would be among the finest people in the community. They would be able to vote any way they wanted. Once again, the legislatures got in the way. Many states now have laws barring electors from voting as they wish. Those laws require electors to vote as the state votes.
Then there is the winner-take-all feature of the presidential electors system. This, too, was not the intent of the founders. They thought electors would be chosen by district and would represent their districts. Instead, most states (except for Maine and Nebraska) have winner-take-all systems.
Was Trump the kind of threat the founders envisioned? Only the free-agent electors would know that and we no longer have them. The party hacks who serve as electors today are hardly the figures the founders had in mind to make that decision. In our context, they probably had electors in mind like James Michener, Lee Iacocca, Boone Pickens, Michael DeBakey, Alan Shepherd, Frank Lloyd Wright (elected federal officeholders were specifically barred).
Constitutional convention delegate Elbridge Gerry provided the only specific when he said, “The ignorance of the people would put it in the power of some one set of men, dispersed through the Union and acting in concert, to delude [the public] into any appointment. … [S]uch a society of men existed in the order of the Cincinnati. They are respectable, united, and influential.” The Society of the Cincinnati was a veterans’ group with considerable influence, but that doesn’t help us much.
Interestingly, no Democrat has ever become president after losing the election but winning the appointment. Rather, only Democrats have been victims of electoral appointments. Democrats won the election four times and their opponents – John Quincy Adams, Rutherford Hayes, Benjamin Harrison, George Bush – were appointed president instead. Now a fifth occasion is impending.
In other words, the Democrats have had plenty of opportunities to remedy the current version of the presidential electors system that the founders never envisioned which has victimized only Democrats. In 2009, the Democrats had huge, historic majorities in Congress only eight years after Al Gore won the election and George W. Bush won the appointment as president. It’s happening again because the Democrats let it happen again.
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.