Electoral College: A Constitutional and Political Tradition

 

The Electoral College is made up of members from each state in the union and the District of Columbia consisting of 538 electors. On December 19th, 2016 members of the Electoral College will cast their ballots to elect the President of the United States. Once the ballots are casted in each state, they are signed and sent to the president of the United States Senate.  They are counted and become the official election of the President of the United States   Many will be hopeful that person will not be Donald Trump, leader of the birther movement,  but Hillary Clinton since she won the most popular votes.

Historically, there will be a few mavericks in the College who will cast their vote for Hillary since members are not constitutional obligated to vote as originally pledged.  Those who do buck the trend are confronted with both the Twelfth Amendment and 1952 Supreme Court decision, Ray vs. Blair.  This case involved the refusal of Edmund Blair, an Alabama resident,  to support the nominees of the National Convention of the Democratic Party for President, Adlai Stevenson, and Vice President, John Sparkman, of the United States.  Based on Blair’s pledge omission, the state party chairman rejected him as an elector.  That decision eventually ended up before the U. S. Supreme Court on appeal from the Alabama Supreme Court.

Speaking for the majority, Justice Stanley Reed said: “Exclusion of a candidate in a party primary by a state or political party because such candidate will not pledge to support the party’s nominees is a method of securing party candidates in the general election who are pledged to the philosophy and leadership of that party, and it is an exercise of the state’s right under Article II, Section I to appoint electors in such a manner as it may choose.” Justice Reed cited as precedents United States v. Classic, 1941 and Smith vs. Allwright, 1944.

The National Conference of State Legislatures recently reported that in 2004, George Bush having won the most electoral votes, “a Minnesota elector, nominated by the Democratic Party, cast a vote for John Edwards, vice presidential mate of John Kerry.  Only time an elector crossed party lines was “when an elector nominated by the Party voted for the 1972 Libertarian ticket consisting of Presidential candidate John Hospers and Vice Presidential mate Tonie Nathan.

Have states taken actions against those who have voted against party lines?   “No Elector has ever been prosecuted for failing to vote as pledged.”  It is very “rare for Electors to disregard the popular vote by casting electoral vote for someone other than their party’s candidate. Electors generally hold a leadership position in their party or were chosen to recognize years of loyal service to the party..  “Historically, more than “99 percent of Electors have voted as pledged.”

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For those who are hopeful the 2016 Electoral College will negate the election of Donald Trump, the constitutional and political tradition is much too strong.  A case in point is what happened recently in Colorado.  According to the Colorado Independent, a federal judge rejected a motion by two Colorado Electorates for an injunction to block the election of Donald Trump.

Judge Wiley Daniel, who was appointed by Bill Clinton, interpreted the injunction as a political stunt.  In language reminiscence of the Blair decision, Daniel ruled that the “electors had signed a pledge.  They are bound by promises they made when they took the job.  If they have a problem with the law, they should go to the General Assembly and get the law changed.”

Can the Electoral College be abolished? 

Yes.    Two –thirds of the states can convene and petition Congress to propose an amendment to abolish the Electoral College or any other parts of the Constitution.  When that amendment is ratified by three-fourth of the states, it then becomes law of the land.   Why have the states never exercised this form of constitutional reform?

Sherman Jackson, PhD

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