The best laid plans of mice and men and the two-party system

Election season always brings commentary from the news media and the general populace that at the very least is entertaining. Both the political left and political right praise and criticize their respective party’s nominee as well as his/her opponent.

This year has been no different, Democrats have lambasted Bernie Sanders for not conceding in the primary’s earlier than he did once it became clear Hillary Clinton had enough delegates to win the nomination and Sanders’ supporters have continually criticized Secretary Clinton since the release of emails from the Democratic National Committee that show party favoritism for Clinton.

Republicans — both elected and those appointed by Republican presidents have been critical of Donald Trump for not endorsing key party leadership as well as some of his less-than-ideal comments regarding his policy positions. He is not a Republican mainstay, beating every major Republican challenger, many of whom are politically well established. Sufficed to say, many voters in this country would prefer a different candidate given their individual political beliefs, regardless of their political affiliation.

Nonetheless, many would also argue that the current system does not bring forth the very best our country has to offer in terms of experience, leadership, character and ability. This has been the norm of public opinion since perhaps President Ronald Reagan left office; many participating in elections over the last 25-plus years have felt as if they were voting for the lesser of two evils rather than the best person to lead the executive branch of government.

This brings us to consider the current architecture of our political system. The Constitution has served us well since its passage and replacement of the Articles of Confederation. It is amended from time to time in order to “form a more perfect union.” We’ve seen this with the passage of civil rights amendments for example. Is it time to consider amending it again?

The Framers choice for the Electoral College is an interesting one since it neglects the popular vote to a large degree and puts the presidential election in a contest of 51 races — all 50 states and the District of Columbia. Since we do live in a representative democracy, the construct of our democracy should always be and continuously be working to fully represent the people. This notion of self-governance is a rather novel idea in the context of world history, but it is one that the United States has taken the lead with and one that it fulfills better than many other nations on the planet. It is nonetheless something that must be sustained and continued to be refined, not based on trends or fads, but on necessity and obligation. Our national leadership is obligated to represent the people in the most direct way.

The Electoral College is not something you hear about much outside of election season. It should be discussed and Congress should consider amending the current system if it is outdated, antiquated, or obsolete. Review the following text from the Constitution:

Article II, Section I

“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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

The following clause was later superseded by the Twelfth Amendment:

“The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chose by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chose the President. But in choosing the President, the Votes shall be taken by States, the Representatives from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chose from them by Ballot the Vice-President.”

Twelfth Amendment:

“The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;—The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

The primary reason for the creation of the Electoral College is that the Framers did not trust the people to select the President from among the various candidates running for office in a given election year. They assumed the average voter, who was not well educated by today’s standards, would make a poor choice come election day. At the time when the Framers were drafting the Constitution, there was nothing akin to the political parties like we have today. As such, the Framers believed that every state in the Union (13 at the time) or each region in the country would put forward their “favorite son” as a candidate and no single candidate would end up with a majority of the vote (an important principle to the Framers).

Other than direct popular vote (which was not popular with the Framers), the main alternative was selection of the president by one or both chambers of Congress. This was not seen as ideal by Framers like James Madison since the president would be largely beholden to the legislature, but this proposal did seem to have more widespread support than direct popular election. In a last ditch effort to come up with a third alternative and to prevent Congress from selecting the president in all future elections, James Madison ended up referring this matter to a special committee to deal with this rather difficult issue at the Constitutional Convention.

In the end, the committee came up with a compromise measure: voters would cast votes in each state, but those votes were actually being cast in support of a slate of electors for one of the presidential candidates running for the office. Then, the candidate with the most electoral votes would be sworn in as the new president; this is essentially what the Electoral College entails.

Since there were no political parties at the time like we see today, most of the Framers believed there would be anywhere from four to eight presidential candidates in any given election, which would preclude any single candidate from getting a simple majority or even a substantial plurality of the Electoral College votes. This would in turn, trigger a contingent election, whereby the House of Representatives would determine the winner from the top five candidates (later changed to the top three candidates following passage of the Twelfth Amendment). This way, Congress would essentially determine the winner, which is what a majority of the delegates at the Constitutional Convention actually favored.

What they failed to anticipate, however, is the emergence of political parties within the first few election cycles. Once political parties emerged and given the nature of our electoral system, we typically only have two viable presidential candidates (one from each major party, hence the two-party system), which virtually guarantees that one of the two will receive the required simple majority of the Electoral College vote — 270. In fact, this is what has occurred in every presidential election since 1824, the last time the House of Representatives determined the winner from among the top three presidential candidates.

Tantamount to this occurrence, is the propensity for a presidential election to take place that would elect a candidate who did not represent the demographics and wishes of the entire country, rather the sentiments of voters in the 11 most populous states, these being:

1. California

2. Texas

3. New York

4. Florida

5. Illinois

6. Pennsylvania

7. Ohio

8. Michigan

9. Georgia

10. New Jersey

11. North Carolina

With the winner-take-all dispersion of electoral votes in these states, a candidate gets the needed-270 electoral votes from these states and wins the election without concern for results in the other 39 states and the District of Columbia. Not a likely scenario given the demographics of the states involved, but a possible scenario.

The central reason the Electoral College remains in place today is that it would require a Constitutional amendment to change or eliminate it. This, in turn, would require a two-thirds vote in both chambers of Congress along with the support of three-fourths of the states (or at least thirty-eight of them). The problem is that there are at least 12 or 13 smaller states that currently prefer the status quo.

If one could convince two-thirds of Congress to support an amendment (which has actually happened a few times in the last 50 years), the states would never ratify it because the smaller states prefer the current system to any alternative even though they only get three electoral votes at a minimum. The best we could hope for is existing states to move away from the current winner-take-all system that 48 of the 50 states employ, Maine and Nebraska are the two exceptions — in all of the other states. If a candidate wins a simple majority or plurality in the case of three candidates of the popular vote in that state, he or she would get all of that state’s electoral votes.

Changing the distribution of electoral votes can be done at the state level, but most states are reluctant to do this because it potentially means casting some votes for the other party’s candidate in the case that the current system was changed from winner-take-all. Hence the evolution of just two major political parties emerging — both having the tendency to be politically polarizing in regards to policy, the role of the federal government and the best way to sustain and maintain our democracy. One would be hard-pressed to make a different argument given the two parties nominees for the election in November.

The fact that the Electoral College has been around for over 225 years and is very difficult to eliminate via constitutional amendment and constitutional convention is part of the reason it still exists, not because it serves us so well. Our Framers were incredibly bright and intelligent men who sought to create a well-formed democracy ripe with self-governance and representative of the people who gave their consent to be governed (Jean-Jacques Rousseau's The Social Contract) and in turn, created a government that represents them and is (at least in theory) accountable to the people.

While the Founders of our great nation sought the best interest of the people at the time of the Constitution’s ratification and for future generations, perhaps the time has come to amend our election system to one that provides a larger candidate pool and perpetuates political diversity based on the popular vote of the people — the heart of self-governance: government of the people, by the people, and for the people.

This story was originally published August 17, 2016 at 9:16 PM with the headline "The best laid plans of mice and men and the two-party system."