THE 2020 ELECTION AND THE CONSTITUTION

With all the hoopla surrounding the coming elections (2020), it is interesting to look at what the Constitution had to say about the subject - both the original document (including Amendments 1 to 10), and the remaining Amendments.

It is fairly obvious that the Founders were against creating a Democracy, and in the original document gave the people only a direct vote on their Representatives in the Congressional House. Even then, they kicked the can down the road on the subject of qualification to vote, essentially leaving it up to the States to decide individually. This is just one of several glaring faults in the Constitution. The requirements for qualifying to vote should have been spelled out explicitly and should have been uniform across the country for the Federal election.

The 17th Amendment (one of two in 1913 that set the stage for the downfall of the U.S.) added the Senators to those directly elected by the populace, effectively creating two Houses of Representatives, but with different rules. Again, instead of rectifying the omission in the original with respect to qualifications, they kicked the can down the road once more.

However, with respect to the choosing of the President, the people were not only deprived of direct election by the Electoral College mechanism, but were even denied direct election of the Electoral College Electors. The original document specifies that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress". Nothing in the remainder of the original document nor in any of the Amendments changes the right of the State Legislatures to appoint the Electors for the Electoral College, although if a State chooses to use a popular election to decide who to appoint, several Amendments have a lot to say as to who may or may not vote in such an election.

Since the Constitution states that "Each State SHALL appoint..." their electors, convene them for their votes, and forward the results to the Senate, one might reasonably assume that such action should be taken in a timely manner. Nothing in the original document or the Amendments suggests that such required actions might be justifiably delayed by an optional popular election at the State level. Thus it is hard to justify the concern that the actual determination of the winner of the Electoral College might not occur at the normal time.

At the same time, there seems to be no real deterrence to any State Legislature appointing their Electors based on any whim they might take, regardless of the results or lack thereof of any popular election, or for that matter, any overreaching dictum from any court. Thus schemes to eliminate the Electoral College and choose the President by the national popular vote are unnecessary - the same result can be achieved within the current Constitution by getting sufficient State Legislatures to agree to appoint their Electors based on that criteria.

This, of course, is just another of the several glaring faults in the Constitution as mentioned above. The Founders apparently hoped that such faults might be corrected by the Amendment procedure provided for, but most Amendments have tended to create more faults rather than correct the original ones (author's opinion). The result seems to lack the 'conceptual integrity' described by Fred Brooks in his classic 'The Mythical Man Month'.

The Electoral College and the election of 2016

Once again the Election of the President of the United States by the Electoral College is the subject of much whining and criticism by the losers. As with the 2000 Election, the Republicans won the Electoral College but with the official popular vote won by the Democrats. I say official, since the possibility of voting fraud in many large urban areas leaves much doubt as to the validity of the popular total. In any case, in spite of massive Democrat wins in the urban areas, the fact that the overwhelming majority of suburban to rural counties in the country went Republican helps explain the Republican win of the Electoral College.

Which is why the Founders created the Electoral College in the first place. At the time, there were not so many large urban areas, but the fear was that the more populous states would, in a popular voting system, deny any real representation in the Federal Government to the smaller states. By creating the Electoral College system, the smaller states would have a somewhat better chance of having a say in the choosing of a President.

Furthermore, the method of choosing Electors specified by Article II, Section 1 of the Constitution leaves it up to the State Governments. To wit: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress...". Thus, as with the original Senate, the President was to answer more to the Sovereign States than to the people as a whole. Although the Senate as the voice of the States has been nullified by the Seventeenth Amendment and made a second House of Representatives, the State governments still have the authority to determine the selection of their Electors for the Electoral College. In practice this has been usurped by Party Politics in most states to a winner-take-all selection of Electors by the Party winning a plurality of the popular vote in the State.

The current implementation of the Electoral College is not in violation of the Constitution, although it is probably not in keeping with the intent of the Founders. I assume that each State has given its blessing in law or otherwise to the current situation. In spite of the fact that the Founders went to considerable ends to give the Sovereign States a meaningful voice in the Federal Government, they have ceded it over the years to the very plebiscite democracy that the Founders abhorred. The Electoral College could easily be the next victim to this tendency by being eliminated altogether.

As usual this author feels obliged, after complaining about the situation, to offer a suggestion for a modest improvement. Since the original Constitutional verbiage cited above is still in effect, the State Legislatures could direct that the Elector authorized by each Congressional District be appointed by the Party having a plurality in that District, with the two Electors granted to each state by virtue of their Senators being appointed by the Party having a plurality in the State, as is currently the case. Apparently this is the system used in two of the Fifty States: Maine and Nebraska. Even better might be to have the State Legislature appoint their two 'at large' Electors to recover a little of the representation of the Sovereign States that the Founders envisioned. Something like this would at least keep the States with large urban areas from denying any representation in the Electoral College to their rural areas. It also would be a minor step toward returning to the intent of the Founders.