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Why don't presidential
candidates visit North Dakota?
(Laughter) No offense to North Dakota and I am sure the
President, presidential candidates don't want to offend
them but there is a reason why they don't visit North Dakota.
And in this lecture I want to talk about the Electoral
College.
Certainly a unique system a unique mode of electing ah
anybody to office, but a strange one too and I hope though, that
in this lecture I can help you understand machinations the
mechanics of the Electoral College, but also maybe suggest
how other fundamental constitutional principles can be
seen in the working of the Electoral College.
Though at the end of the lecture I want to suggest that there
might be a little bit of a tainted history to the college
itself.
This is what James Madison said in Federalist #68, in the
Federalist papers about the Electoral College.
He said, "The motive appointment of the Chief Magistrate of the
United States is almost the only part of the system of any
consequence which is escaped without severe censure.
But which has received the slightest mark of approbation
from opponents.
I would venture somewhat further", Madison went on to
say, "and hesitate not to affirm that if the matter of it be not
perfect, it is at least excellent.
It unites in an eminent degree all the advantages of the union
which were to be wished for."
So, at least Madison claims, in the federalist papers, which we
always have to take a close look at because they were editorials
written in New York newspapers to convince delegates to the New
York state ratifying convention to accept the constitution, but
Madison suggests that the structure of the Electoral
College, during the convention, didn't really receive a lot of
censure.
In other words, there wasn't a lot of disagreement about
choosing this mode of election.
This kind of operation for the selection of our Chief
Executive.
So one thing that we need to understand about the Electoral
College, from the perspective of those who are framing it, that
aside from the fact that they mostly agreed that this is a
very good system, they had significant concerns about the
nature of the Executive Branch itself.
Significant concerns about the Presidency that the Electoral
College represents.
In other words, the Electoral College, in the framers mind,
was designed to produce a winner, a President that would
have a certain quality to him that was unique to the executive
branch.
Which they absolutely supported because they created the
executive branch during the convention, were worried about.
And it is understandable they would be worried about the
executive branch.
When you look at your little pocket copies of the
constitution, you see that right after the Preamble we have the
first article.
The first thing you would see.
It was like a sheer genius market marking genius.
The geniuses the founding fathers were.
The first thing you see is the Peoples Branch and all the roles
and procedures that create and constitute Congress.
You don't see first the Executive.
Why would that be?
Well just a decade a half and before we had fought a war, a
Revolutionary War, against a monarchy.
So to have a single executive was, to the anti-federalist
especially, something that was very worrisome.
You don't see it first in the constitution when you look at
it, it's not the first thing you see.
So again, they weren't against an Executive, the founders
thought it was absolutely necessary, and a single one at
that.
There were proposals to have a committee of executives but they
decided against that.
So there were concerns though that the executive could be
monarchical or that at the very least we need to create a system
for choosing our executive that was unique to the special
concerns of the Presidency itself.
The kind of winner that we wanted.
So, again there were two more concerns though.
Aside from the concern the more marketing like concern about
having people think the Executive Branch was a Monarchy.
And that was to prevent corruption.
In other words, to prevent not necessarily corruption in the
Executive Branch, although that would be, if we produced the
right choice, the odds of corruption would go down.
But they meant corruption in the selection of the executive
himself.
So, this is what Madison said about the Electoral College
being able to prevent this.
He said "Nothing was more to be desired than that every
practical obstacle should be opposed to cabal, intrigue and
corruption.
Right?
So whatever kind of system we would have we want to prevent
cabal, intrigue and corruption."
He went on to say, "These are most, these most deadly
adversaries of republican government might naturally been
expected to make their approaches from more than one
corner.
But chiefly from the desire and foreign powers to gain an
improper ascendant in our counsel, in our counsels."
So, another concern of the founders, about the Executive
Branch that the Electoral College is designed to cure, is
foreign intrigue or foreign cabals getting involved in the
selection of our Chief Executive.
So the Electoral College is going to be designed, as I will
talk about in a minute, to try to prevent that from happening.
The other concern though, as I said before, if you look at the
constitution as a potential consumer as a potential voter,
yes or no, am I going to accept this thing.
The first thing you see is not the Executive Branch.
That would have scared people.
It's the people's branch.
So, but nevertheless, if we are going to avoid cabal and
intrigue, we are going to have to have a unique system for
choosing our Chief Executive.
But no system would be legitimate.
No system would be authoritative if it did not have some kind of
democratic feature to it.
So this is what the founders were thinking about.
So again, they were worried about corruption and intrigue in
the selection of the executive.
They wanted to produce a certain kind of executive.
Right?
Create a voting system that produced a certain kind of
executive.
But they also wanted this choice to be as democratic as possible.
Not completely democratic but as democratically as possible
considering these concerns.
So what did we come up with?
The Electoral College.
As you all know hopefully, the Electoral College is the system
that we have that selects the president.
When you actually go to the polls, as I talk about, you do
not vote for the president and the vice president.
Nobody votes, nobody in here I bet has ever voted for the
president or the vice president.
You vote for a slate of electors that are pledged to vote for the
president and the vice president.
I'll talk about that in a second.
But the way the college works is is this way.
Every state gets a certain amount of electoral votes and
candidates compete to win a majority of those votes across
the nation.
Now how does we come up with a number for each state for the
amount of votes they have?
Well we say, remember one of the concerns here was to have it as
democratic as possible.
Well by the time, by this point in the convention we could look
at the work that had been done already and say, "Well we
already have a democratic branch, it's Congress.
Well how about we use Congress as a model for assigning
electoral votes?"
And that is still the case today.
Each state gets a number of electoral votes that is exactly
equal to their representation in Congress.
Every state has at least two votes because every state has
two Senators, but representation in the House varies with
population.
The more population you have, California has a huge amount of
House members.
So you take your amount of House members add that to that two,
that permanent two, and that's the amount of electoral votes
each state gets.
Now, to win the presidency, to win the Electoral College you
need to, as a candidate, to have a majority to win a majority of
those electoral votes.
If you do not win a majority of those electoral votes, you have
less than a majority or there is a tie in the Electoral College,
the Founders imagined this to happen, and did in fact it did
happen, then there is a provision in the Constitution
that says, "that the selection of the president then goes to
the House of Representatives," which is the most democratic of
the two branches of Congress.
Remember at this time, we did not directly elect our Senators.
So again, here's the Founders coming up with a unique system
to prevent a certain kind of, or to produce a certain kind of
candidate or winner, but still trying to make it as democratic
as possible.
Well if we throw it into the House some said, well then the
bigger states would have more of an opportunity to win the
election or to swing the election or to choose the
winner.
So what the Founders did instead was, yes, the selection of the
presidency, the president, will go to the House of
Representatives.
But each state will vote as a delegation.
So no matter how many representatives Virginia had at
the time, they would vote among themselves and there would be
one choice.
So, Virginia would only get one vote not thirteen.
Rhode Island if it only had one House member would still get one
vote.
So it equalizes.
It makes equal the states in the House, which is not an equal
institution.
The House is unequal right.
The bigger your state is the more representation your state
has in it.
But here in this unique case of the Electoral College, states
are equal in the selection of the president if there's a tie
or nobody gets a majority.
But there is another aspect of the Electoral College which is
probably the most controversial and which is probably the
scariest, when we think about it.
Although we have never been any of these incidences I'll talk
about that have ever swayed an election.
There is another aspect of the Electoral College we need to
talk about and that is the electors themselves.
As I said before when you go to vote for president, as you'll do
this November, look closely at your ballet.
It will say, if you are going to vote for Obama and Biden, it
will say check here, here in Oklahoma we use a pen and color
in the box or fill or fill in this line, check here to vote
for the electors, for Barack Obama and Joseph Biden.
You are not voting for Obama and Biden.
You are voting for a slate of electors who will decide if your
vote was the right one.
Where's this come from?
The Founders said, or Madison said in justifying this that "we
need to have an intermediate body of people in a sense to
check our votes."
Remember one of the big concerns here was foreign influence.
Another one was what Madison called the little arts of
popularity.
Madison said we should be concerned to, to get rid of the
little arts of popularity.
And how could we do that?
We can imagine us all being swayed by a great campaign.
Right?
We can all imagine that.
And we are swayed and we are moved and we show up and we
vote.
And then we say, "Oh my".
I don't think that was the right idea.
Now that I reflect on this, I don't think it was a great idea.
That is the idea of the electors themselves.
To be an intermediate body and the Founders had in mind; this
intermediate body would be chosen for this very specific
purpose and no other purpose.
They were what matters called a transitory body of people,
selected for this very important purpose.
Alright?
Prominent figures in the community, people that the
community or the state trusted for this, for this awesome
responsibility, which was, to have in a sense, a time period
between an election and the day the electors meet in their own
states to certify the amount of votes that a candidate has won.
And again, the idea here is to check the people's wishes and
desires for the president.
And you can imagine, for such an awesome choice, for a singular
executive, and we've seen in our lifetimes and in the history of
the United States, the increased power the Executive Branch has
over our lives and in the World.
We can see how this was and still is a legitimate concern
that our system produce the right outcome.
In other words, the right kind of person for the office.
And again, we can see in the structure of the Electoral
College this very concern.
Now the electors themselves sometimes have not been what we
call faithful.
They have been faithless electors.
And that's really problematic if you think about it.
But it isn't if you think about it in the way the Founders had
in mind, which was to check kind of the momentary passions of the
people.
To make sure there is a cooling off period in a sense after the
election.
That we weren't swayed or moved by something that we shouldn't
have been.
Now the way that electors, the Electoral College works today
though is a little different.
Some states by now have passed laws that their electors can't
be faithless.
So they have, electors have to vote in the way that if this
slate of electors wins, in other words, if Obama wins Oklahoma,
which is not going to happen, then those, not for any other
reason than he just won't, I know he won't, those electors
might be bound by law.
I'm not sure if Oklahoma passed a law about electors.
I'd have to look at that.
But other states, some states do not have a law that requires
their electors to vote that way.
Today though, the vast majority of electors are party
volunteers.
Lots of retirees, people who've worked in the party with party
leadership have helped raise money, help get out the vote.
But you could imagine that they would be faithful.
I mean if they are democrats and the democrat wins, they are
gonna cast their electoral votes for the democrat.
So the system doesn't have as much teeth or potentially has a
much teeth and bite as the framers imagined.
But we can still see in our strange system called the
Electoral College some fundamental concerns about the
Executive Branch itself and kind of this unique American way of
thinking about designing institutions in such a way that
produce certain kinds of outcomes or certain kinds of
people.
Thank You.
(Applause) (Music) Freedom 101 is made possible by generous
support from *** Young and the University of Oklahoma Alumni
Association Freedom 101 is a program of the Institute for the
American Constitutional Heritage at the University of Oklahoma.
For more videos and podcasts visit freedom.ou.edu.
(Music)