How the Electoral College Can Save Us Now
by Mary W Maxwell, PhD, LLB

During the Constitutional convention of 1787 it was decided that the choosing of the president would be done not by popular vote but by some individuals appointed by each state, who would gather and discuss good candidates.

Alexander Hamilton, writing in the “Federalist Papers,” to get folks interested in ratifying the Constitution, said presidents should be chosen:

“by men most capable of analyzing the qualities… and acting under circumstances favorable to deliberation….Nothing was more desired than that every practicable obstacle should be opposed to cabal, intrigue and corruption.”

It came to be written in Article I, section 1, of the Constitution that there would be a college of electors. A problem developed in 1800, the year Thomas Jefferson was elected, and this led to
Amendment 12, which is still in force.

Per that Amendment, electors meet in their states (by law in December) and each person writes his ballot and certifies it. These are sent to the president of the Senate for a tallying up in early January.

This year (2016) the public polling is November 8. The day for electors to meet is December 19. The ballots will be opened in Washington, DC, on January 6, 2017. Inauguration day is, as always, January 20.

Most States Have Unimaginative Laws for the Electors

Only two states allow the ballots of their electors to be divided proportionally according to the weight of the vote: Maine and Nebraska. The rest must inscribe on the electoral ballot the name of the winner of their state. I mean winner-takes-all.

So in California, which has 55 electors, all 55 votes will go to Hillary if she has won in the November polls. What if she got 60% and Trump got 40%? It is a winner-take-all, so she gets all of California’s 55 electoral votes. Same for Trump in a state where he has won more than Hillary at the polls.

This year there may be an upset, based on the fact that many citizens are dissatisfied with both candidates. So let’s ask what scope the electoral college has for choosing someone else.

How It Works

There are a total of 538 electors. Why? Because each state has a number equal to its number of Congressional districts (there are 435 of those), plus its two senators (so, another 100), plus 3 for people who live in DC.

Of the total of 538 electors, there are 223 who are “unpledged.” I mean they come from states that do not require the electors to vote in reflection of what happened at the polls. They can vote for anyone. Wow.

In 29 states, plus the District of Columbia, the Electors must pledge – in some cases by oath – that they will cast their ballot for such-and-such a candidate. But only five of those 29 states legislate a penalty for any Elector that ‘defects’ -- (NM, NC, OK, SC, WA).

Constitutionality of a State Law

North Carolina goes further, saying, also, that an Elector who votes on Dec 15th for the ‘wrong’ candidate will at that moment be de-certified as an Elector by her state. Very interesting. The constitutionality of that has never been tested. I have a feeling it is unconstitutional.

In Ray v Blair (1952), Ray, the Democratic Party chairman in Alabama, wanted to certify only Electors who pledged.

(Note: it is really the political parties that run this electoral business, and you can imagine what that entails.)

The Supreme Court ruled, in the Ray case, that a state’s allowing a party to do that does not offend the Constitution. They refrained from saying, however, that an Elector is forbidden to break his/her pledge.

Justice Robert Jackson, in dissent, wrote:

“Electors, although often personally eminent… officially became voluntary party lackeys…. Control entrenched by … exclusion of nonconforming party members is a means which to my mind cannot be justified by any end…. The court is sanctioning a new instrument of power in the hands of any faction that can get control of the Democratic [or, presumably, Republican] National Convention.”

In the Framers’ idea of an electoral college, electors could look around them and nominate the person they think would fill the office well.

Who May Win This Year, 2016?

Electors are restricted to nominating a person who fulfills the three criteria of Article II: born in US, also resided there at least 14 years, and is age 35 or more. This means that a huge number of people are eligible to be elected president come January!

So let’s get imaginative here. As I said, 223 souls are free anyway. They have not typically used their freedom, though. In the 57 presidential elections so far in American history, only 9 individuals did anything other than reflect the polls.

But the public will be begging for some kind of breakthrough this year. The public ought to get up off their duff and propose some names for the Electors to think about.

In a few states when you enter the polling booth you see the name of the elector you are “electing” -- her name will appear under the name of Trump or Hillary. Most states let the big Parties pick their electors "in due course."

It May Devolve to the House of Reps

Per the Constitution, the president of the Senate opens the envelopes that come in from the Electors. This year he must do so on January 6. He does it with a joint sitting of the two houses of Congress.

If the 538 ballots produce a majority winner, that is, someone gets 270 (half of 538 is 269, plus one vote), that person is declared the President Elect and will be inaugurated a fortnight later.

You’d think the envelope-opening would be done with cameras blazing but it’s not. No one publicizes this event. All is hush-hush.

By the way, few Americans know that Joe Biden is the president of the Senate. What? The vice president of the nation hangs out on Capitol Hill? Yes, it’s in the Constitution. (He spends little time there but must vote on a bill if the senators are tied.)

Now let’s say Biden opens the envelopes (all 51 of them) and sees that no one person attained the needed 270 ballots. He must then sort out who the top three were. I imagine it will be Trump and Hillary, plus a mystery person.

He then must ask the House of Representatives to choose a president from those three. (But not all 435 reps do it; they coordinate themselves by state and each state gets one vote.)

I am hopeful that some electors will announce in advance that they plan to cast a ballot for someone other than DT or HC.

Got to hand it to the Founding Fathers who foresaw just about everything. Give the parchment a kiss, this year of all years!

The Choosing of a Vice President

Let me point to a very little-known fact: the Vice President is to be elected separately from the President, by the electoral college.

The members of the electoral college are required to meet (this year on December 19) and, by voting as individuals, vote for one person to become president and another to become vice-president.

Whom could they choose? ANYONE who meets the specific requirements for a president (born in the US, age 35, and at least 14 years resident in the US). And how would the “picks” from each state’s electoral college arrive in a central location to be pooled? The Electors send their ballots to the president of the US Senate, for counting in January.

You probably won’t believe me when I tell you how much the Constitution has been violated in regard to the electoral-college provisions. The way in which Americans today acquire their VP is all wrong.

Here is the content of the Constitution’s Amendment 12, which slightly modifies the original Article I, section 1:

“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

“The person having [nationally] 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.”

(The word ‘majority’ there means 270 votes, that being half of the total, of 538, plus one.)

Parties and “Tickets”

The Constitution makes no mention of political parties. A party is a private organization. Congress has never dictated party behavior by law. (I believe the same is true in each state but am not sure, and cannot at the moment research all 50 states.)

At some point in the twentieth century, there developed the practice of the presidential campaigner naming a “running mate.”

For example, in 1980,when Jimmy Carter was the front-running Democratic Party candidate for president, he chose Walter Mondale as his “vice president,” while Republican Ronald Reagan chose George Bush Sr, to appear with him on the “Republican ticket.”

A citizen walking into a polling booth in November 1980 could tick the box (or pull a lever) for either Carter/Mondale or Reagan/Bush.

Thus, no voters were asking themselves “Let’s see, who would be a good vice president, to take office next January 20?” They were, instead thinking of the package deal they were being offered.

The spirit of the electoral college is virtually unknown today. Or else it is denigrated, with “thinkers” saying it is undemocratic to have a handful of electors choosing the prexy.

If you go to Google Scholar and ask for Electoral College, you will mainly get articles about the use of strategies by presidential campaigners -- saying a candidate should only bother to campaign in a state that has many electoral votes.

Amendment 12 calls for the ballots for president to be opened first and if there is no clear winner, the House of Reps will vote, by using only the highest contenders, “not exceeding three,” from the electoral offerings.

(In my lifetime, America always had a clear winner for the presidency; someone always got 270 electoral votes.)

Next, the man in charge (Biden) opens the ballots for vice president. Again, imagine that one candidate has a clear majority of all the electors ballots for VP. Fine -- he or she is in, for four years, to be a heartbeat away from the presidency.

So What’s My Beef?

I complain that VPs get ushered into office based on a “running mate” system for which there is no Constitutional basis. People have not “had a fit” about the deviation from the Constitution’s requirement that votes for VP be independent of votes for president.

I suppose a pro-ticket arguer would say that all is well because the states have allowed their polls to decide. That is, each elector filled in the name of the running mate of the popular winner.

My beef is that the whole idea of intelligent electors using their best wits to come up with good candidates has been lost. Well, it hasn’t really been lost insofar as the Constitution is still there. Hooray! This could be the year for caring electors in each state to apply wisdom.

It is ridiculous NOT to use the electoral college to get us out of the mess we are in.

Think Now about Cabinet Members!

I believe no individual is capable of handling the job of president of the United States.

Offhand I think Senator Rand Paul, MD, would be a fine president, as he adores the Constitution – but my claim is that no person is big enough to make the kinds of the decisions that we generally think a president is making.

He or she needs a council of elders, or whatever it might be called – people who will talk common sense.

So we should start concentrating not on the presidency but on a coterie of citizens who could act as a Cabinet. Since there are no constitutional provisions for a cabinet, there are no restrictions on who could participate.

Conclusion

To have an established Constitution is quite a blessing. It’s much easier than starting from scratch. No violence is needed. (Except such violence as is already prescribed by law, that is, the taking out of circulation the harm-doers.)

So let’s stop talking about how many points Hillary or Donald have won in their “debates.” Even if one of them becomes president, we don’t have to let him/her get away with murder.

And it’s our fault if we do. Anyway let's try to put in place a group of people who can work together as real leaders. We should start calling for public nominations to Cabinet.

Send the word to members of the electoral colleges, as this may make them prone to elect a president who, alone, cannot carry the weight but who could do so with good advisors.

-- Mary W Maxwell is an American-born Australian citizen, who writes for GumshoeNews.com in Melbourne. She is the author of "Fraud Upon the Court: Reclaiming the Law" Mary can be reached at her website ProsecutionForTreason – dot com. She begs you to pass this article to Facebook or any place you can reach concerned citizens.

The video below is of a senator who could be Secretary of State or Defense -- though he is probably more needed in Congress.

Below is a link to a Gumshoe News article about "the Boston Marathon bombing."