Harry Potter and the Electoral College

Okay everybody, stand back. I’m going to attempt to explain the history, purpose and contemporary political implications of the Electoral College. My legal team insists I issue a disclaimer before doing so. So, fair warning, this is being done on a closed course with an expert driver. Do not attempt at home.

In technical terms, the Electoral College is an over-engineered doohickey connecting the people to the president based on a blueprint found in the “Where’s Waldo?” section of the Constitution.  The result rattles along more or less unnoticed by the masses in an average election cycle because when you fire that sucker up it generally picks the candidate with the most votes. And if the cool POTUS swag goes to the candidate with the preponderance at the polls, well, the electoral accounting seems reasonably kosher even if you don’t get all that electoral vote jazz.  Why bother sweeping back the curtain to investigate the grinder that makes this democratic sausage? The operating manual gives grown lawyers headaches and, besides, that thing is scary.

Every now and then, though, the machine spits out a president that the people clearly did not slide2want. He (it’s always been a he) gets the keys to the Oval Office and the nuclear codes, while the loser consoles themselves with the knowledge that, democratically speaking, they won.  Hillary Clinton got (at least) a couple million more votes than Donald Trump. And lost. This leaves a lot of Americans—a lot of non-Americans too—going, “WTF?” It also prompts much dusting off of hazy memories of a long ago civics course where the Electoral College was discussed as the sleeping giant of the SEC. Or maybe the Big 10. Or something like that. Pretty sure it was one of the major college conferences.

If Google or Wikipedia or that guy on Facebook doesn’t beat us to the punch, that curiosity offers humble folk such as myself that rarest of teaching moments, a miraculous alignment of opportunity, interest, and ignorance where people actually want some of that arcane knowledge we’ve spent careers stuffing into our brains. I intend to take full advantage of this ephemeral attention to matters institutional before everyone goes back to cat videos and fake news. Stand by for Electoral College 101.

First, how exactly the heck does this thing work? I’ll skip all the technical jargon here and just provide highlights of the process that will soon traslide1nsmute Trump into poo-bah of the body politic. During the first full moon in December, when Jupiter is in Mars, 538 electors will gather at the Republic’s sacred Hall of Requirement and bring out the sorting hat. As soon this piece of headgear gets within five meters of the orange Horcrux topping the president-elect’s noggin it’ll yell “Slytherin!” and head for floo network. Canada-bound most likely. We’ll probably have to fish it out of the secret chamber in Justin Trudeau’s sock drawer when we next need it. Anyway, once that formality is out of the way, Chief Supreme Court Justice Snape will administer the oath of office, give the ceremonial order of “ten points from Gryffindor!,” and congressional Dementors can start sucking the life out of Obamacare.

Okay, I can’t back any of that up and J.K. Rowling probably already has the copyright lawyers off the leash. The point is that to the average voter the Electoral College is all flap and fluster, an ancient bit of obfuscation that seems as mystical and magical as Hogwarts. Tell my tall tale at most dinner tables and the most skeptical comment you’ll get is something like, “Fancy that, I never knew the Canadian prime minister had a secret chamber in his sock drawer. Bet it’s something to do with hockey.” The Electoral College is the confundus charm of our democracy.

So why do we have it? In other democracies, national leaders are either chosen directly by popular vote, or by the party with the most seats in the legislature. Why do we alone use this baffling hunk of electoral jiggery-pokery? The answer lies in a disagreement among the Founding Fathers. Half of them didn’t trust the people to pick the president. Too easily fooled that lot, the argument went, they’ll end up getting their clocks cleaned by some tin-pot dictator. The other half didn’t trust Congress to pick the president. Given a chance that gaggle of Machiavellian power trollops will have the executive cleaning out the legislature’s chamber pots.

If the two obvious selection mechanisms were out, though, how to choose a president? Lottery? Seniority? The Supreme Court playing a game of nekkid Twister? Alexander Hamilton pondered this very question in Federalist 68, and as a bona fide Founding Daddy Dude, he’s got as good an answer as any. Hamilton argued that the “sense of the people” should be reflected in the choice of a president, but no way should the scruffy masses be trusted to do the job themselves. Better to have the most powerful office holder elected by men “capable of analyzing the qualities adopted to the station,” who could come up with a “judicious combination of all the reasons and inducements which were proper to govern their choice.” Yeah, that sounds like Hamilton alright. Power to the people, but big decisions should be left to the grownups.

Anyway, the basic pitch was to have each of the states select a number of wise heads equal to the count of their congressional delegation, and these chosen few would do the actual electing after giving the matter due thought and consideration. The original idea of the Electoral College really did seem to be as a sort of deliberative super-group of prez pickers. At least according to Hamilton this process would weed out unworthy presidential aspirants, the sort of aggrandizing power grubbers with “talents for low intrigue, and the little arts of popularity” but little else to recommend them. Needless to say, it hasn’t quite worked out that way (see recent presidential election).

This whole indirect selection machine tends to throw a sprocket for two reasons. The first is the ever-present possibility that a popular vote winner will be an electoral loser. In simple terms, there’s a mild gerrymander baked into the system. Smaller states get to punch above their weight because they are guaranteed two Senators. That means nearly a fifth of the electoral votes are apportioned on the basis of state equality, not population. So California gets one elector for about every 700,000 voters. Wyoming can lay its hands on an electoral vote for less than 200,000 voters. On a population adjusted basis, then, Wyoming voters are way more influential. The upshot is that the electoral vote can seriously distort the popular vote, especially with the right popular vote differences across states.

This tends to be the thing that gets democratic do-gooders all undies-bunched and crying for reform. Yet it seems reasonable that the designers of the system understood this, at least in concept, and saw it as acceptable tradeoff in the indirect election/will of the people/states are sovereigns too calculations of their republican algebra. If the best and brightest political minds in the land converge on a worthy Cincinnatus who can’t snag the popular vote, so be it. The Founders, or at least Hamilton, are down.

It’s really another problem that stops the Electoral College from working as planned. The original merry band of commonwealth creators never really anticipated that states would jettison the whole idea of choosing electors based on political acumen and sagacity, or at least on some modest sense of political independence and commitment to the commonweal.  States have turned selection over to political parties, which didn’t exist at the time of the constitutional convention, and the voters, whom the delegates were dubious about to begin with. Electors these days are not carefully chosen political minds. They are party apparatchiks who can be counted on to vote as a slate for their partisan pin-up boy if he (or she) acquires a popular plurality in their state. And if you want to get the latter, exercising the little arts of popularity isn’t a bad idea.

Most of the time it doesn’t really matter. The presidential selection contrivance fires its parliamentary thingamabobs and engages its procedural whirligigs and the candidate with the most votes starts measuring drapes for the White House. Except sometimes not.  Political parties prize craven fealty to whatever merry-andrew bears their electoral escutcheon, not the will of the people, and certainly not any idealistic commitment to getting the best person for the job. Combine that with party selected electors, asymmetric voting patterns and state influence in the Electoral College and, shazam, you can get a president of arguable talents and democratic legitimacy.   There is no group of father-knows-best grownups to prevent this sort of thing as Hamilton once optimistically promised. With the arguable exception of George Washington’s election, there never was.

So, to get to the big question, can the Electoral College varsity really pull the old last play fumblerooski and keep Trump out of the White House? Well, technically, yes, though parties and states have done their damnedest to make sure that sort of thing doesn’t happen. Political parties choose electors explicitly for partisan loyalty and lots of states have passed laws legally requiring electors to vote for the winner of the state-wide popular vote. There’s nothing in the Constitution that requires any such thing, though, and the Supreme Court has never weighed in on the legal liabilities of faithless electors. For all we know, electors really could perform the office anticipated by Hamilton.

Indeed, in this weird and wonderful political epoch we actually have a bone fide example of someone doing exactly this. Christopher Suprun, Republican elector of Texas, has offered a reasoned case for why he’s not voting for Trump that you can read here. Suprun even seems to have read Federalist 68. Yet I wouldn’t hold out much hope of a last minute surprise based on reasoned and informed debate amongst electors. Just look at what this current bunch is up to. One elector quit because Trump wasn’t “biblically qualified,” several Clinton-pledged electors have outed themselves as Bernie Bros and are mounting a Hail Mary lobbying campaign, and another set of Clinton electors are now saying they won’t vote for Hillary because, well, I dunno. They want to create a safe space with trigger warnings on the Electoral College campus or something. Lefty logic can be hard to follow.

This is all good sport and it probably merits a posthumous “Jesus H. Christ, what were we thinking?” from Hamilton. But it almost certainly won’t amount to diddly in terms of who ends up president. There’s one Chris Suprun, a handful of well-meaning but mostly politically pie eyed lefties, and a whole bunch of electors who are going to do exactly what their party is counting on them to do. The electoral math favors Trump any way you slice it.

Well, maybe we could/should change the whole process of selecting a president to insure that, you know, the person with most votes wins. Can we do that? Again, technically yes, but practically almost certainly not. Formally changing the Electoral College requires amendment level Constitutional hacks and/or state governments acting in harmony, comity and common sense. So no relief foreseeable on the old legal front. Pretty much the only realistic option is to hang on and wait to turn the key on this bucket of bolts next cycle. Not to worry, though, it’ll get the job done just fine next time. Probably.