Electing the President

In the last two posts, we examined the duties of the President and the powers granted to him to enable him to carry out his duties. We reflected on how these duties and powers have worked out in practice. We concluded that, while there are some structural changes to the office that might improve the constitutional order, these are not pressing issues.  Our greatest concerns are over the progressive violations of norms by Presidents and over the failing process of election of Presidents.

Our previous posts have already covered the violation of norms, and we will only briefly recapitulate here. Presidential candidates prior to the Civil War did not campaign in person. As soon as a candidate was nominated for the Presidency, he was expected to keep himself above the fray of ordinary politics. We are not naifs, and understand that campaigning through political allies and sympathetic newspapers had much the same effect. But what we now call optics are important. Likewise, the early practice of the state of the Union being reported to Congress, in writing, seems vastly superior to the political circus that is the current State of the Union Address.  These are not norms that can be established by any Constitutional or statutory means; these are aspects of political culture that must be established by consensus and respect for tradition.

We have now (as of 2022) seen two elections in a row in which the nation has elected men who were utterly unfit to be President. Furthermore, in each election, the opposing candidates were also utterly unfit to be President. We find it astonishing that anyone can dispute this, but the national conversation still has not turned, after six years, to the question of how we get better candidates for President. Instead, the national conversation has consisted of denials and tu quoques. Worse still, instead of the voters imposing discipline on the man they have elected President, the President has imposed discipline on previously reluctant supporters. In other words, the consequence of voting for the lesser evil is for a great many voters to end up invested in evil.

We have remarked in previous posts that the Framers were very familiar with both legislatures and courts of law, and it was in  the shape of the executive that they venture the furthest into terra nova. We believe they did remarkably well in defining the duties and powers of the office, though of course their work was not perfect. They seem most at sea on the issue of how the president was to be chosen in the first place.

The Framers rejected a parliamentary system, in which the executive was a creature of the legislature. If the legislature chose the president, they would be inclined to choose a weak president who would not effectively check the legislature. If the legislature could remove the president at their pleasure, the president would be weak no matter how he was originally put in office. Thus, the power of impeachment was restricted to “Treason, Bribery, or other high Crimes and Misdemeanors” and a proposal to include “Maladministration” was rejected by the Framers. Impeachment and removal were only for clear violations of the duties of office, and required a majority of the House and a supermajority of the Senate, with the latter sworn to return an impartial verdict.

The decision to not have Congress choose the President should perhaps not be overemphasized.  The original procedure for choosing a President was for a body of independent electors (constitutionally prohibited from being members of Congress or the judiciary or an officer of the government) to vote first, casting two votes for separate individuals. The candidate receiving the most votes was immediately elected President, assuming he had received a vote from a majority of the electors. (But because each elector had two votes, it was possible for two men to receive votes from the majority of electors; this was abolished with the 12th Amendment.) If there was a tie, or if no person received votes from a majority of electors, the House immediately chose the President, with each state’s delegation casting a single vote. If there was a tie between two candidates each having a majority (no longer possible after the 12th Amendment) the House had to choose between them. If no candidate had a majority, the House chose from the five candidates with the most votes from the electors (the only possibility after the 12th Amendment.) In the second, still relevant, case, the House had repeat the vote, if necessary, until a single candidate had a majority of  votes.

The Framers understood that George Washington, “the man who would not be king”, would almost certainly become the first President of the United States, and, as expected, Washington received the vote of every elector in the first two presidential elections. There was some slight danger that Adams would be everyone’s second choice, which would be an embarrassment, as it would require the House to break the deadlock; so some machinations apparently took place to ensure that the elector’s second votes would be spread across several candidates, ensuring Washington would be elected outright.

Beyond Washington, the Framers seem to have expected that the electors would often fail to elect a President outright and that the House would thus often make the final choice. In fact, this has rarely happened, largely because of the rise of a two-party system — something not fully anticipated by the framers, who were deeply suspicious of political parties.

Electors are apportioned equal to the number of Congressmen and Senators from each state. This means that less populous states have an advantage in the electoral vote. Alaska, with three electors from a population of 736,000, has one electoral vote per 268,000 residents, while California, with 54 electors out of a population of 39,240,000, has one elector per 727,000 residents. All states except Maine have first past the post elections, in which the entire slate of electors goes to whichever candidate gets a plurality of its popular vote. Either way, it is possible, and has repeatedly happened, that the winner of the electoral vote has a minority of the popular vote, and sometimes not even a plurality of the popular vote. This has obvious implications for the perceived legitimacy of the President.

The Framers gave state legislators almost complete discretion to decide how electors would be appointed. The current system, in which electors are chosen based on popular vote (and are bound by law to vote for their pledged candidate), arose more or less spontaneously. This was not entirely unanticipated by the Framers, who had considered choosing the President by a single national plebiscite.

We are of mixed views on this system, but we all recognize that no system would be perfect. A majority of us would prefer a national plebiscite. This seems straightforward as long as one candidate receives a majority. We are of mixed views of what should be done with a mere plurality; whether to have the House choose from the top candidates, or to have some system of runoff elections. We doubt the public would tolerate the president being chosen from the top candidates by the system of one vote per state delegation. There are practical difficulties with a popular runoff election, but we believe that with modern voting methods, these could be overcome. But none of us is  desperate to replace the existing system.

We are more concerned with the process by which candidates are put forward. The parties have done a miserable job of selecting good candidates in recent elections. In the case of the Republicans, a divided party with a large field of candidates fell to Donald Trump because the party leadership did not have control of the nomination process. A combination of popular primaries whose rules were dictated by state laws, first past the post rules, and staggered primaries allowed Trump to shoulder aside better candidates. In the case of the Democrats, we believe Clinton and Biden were compromise candidates between party leadership and a vocal progressive fringe that shut out more moderate candidates. It was Clinton’s “turn” in 2016, and in 2020, Biden was perceived as the furthest left candidate who the Democrats could be confident would defeat Trump.

It was not always this way. Prior to the 1960s, it was actually uncommon for party delegates to choose their nominee on the first ballot at the party convention. The world of “smoke-filled back rooms” appears corrupt to many of us today, yet it produced Abraham Lincoln; while the modern open system produced Trump and Biden. It is not at all clear that the modern system is better.

There are reasons for this. Under the old system, party leaders had powerful (if sometimes corrupt) motives to select a good candidate, and thereby protect their “brand.” Ordinary primary voters seem to lack these incentives. They appear to hate their own party elite as much as they hate the other party, and increasingly are dominated by fringes with a “burn it all down” attitude. When the fringes become large enough, they begin calling the shots in primaries. The math works like this: Suppose the split of voters is 30/40/30 between left and right fringes and the moderate center. In the general election, that 40% in the center control a plurality and thus the election. But in a primary in a two-party system, the split is 30/20 in each party, and the fringe has an absolute majority.

Put another way: Prior to the putative reforms following the Democratic Convention riots of 1968, party leaders sought the candidates who could best promulgate their preferred policies, who might not even have been previously identified as a politician of that party. This sometimes resulted in draft candidates like Eisenhower, who was courted by both parties, and who (we believe) was an effective and statesmanlike President. The post-1968 “reforms” converted the primaries to a system of botched run-off elections based purely on the popularity and partisan appeal of ambitious candidates.

Alternatives: Some thought experiments

What structural changes or other reforms might improve the process of electing a President? Such a process should achieve the following:

• Nominees are persons of genuine ability.
• Nominees are political moderates, perceived to be statesmen rather than partisan politicians, representing no extreme of the voting public.
• Nominees are capable of commanding the affection of a broad cross-section of the public, so that the President can plausibly claim to be President of the entire nation.
• Nominees are chosen independently of Congress by the nation as a whole, whether directly or indirectly.

Only the last of these points, which is the most obviously structural, has been satisfied to any degree by any recent Presidential nominee.

We consider three alternatives: First, a return of the control of almost all aspects of party nominations to the parties themselves; second, a genuine system of run off elections; and, third, mostly as a though experiment, a complete restructuring of the way we elect Presidents.

Electoral College as a jury

We begin with the radical thought experiment, mostly as a way to cast light on its alternatives. We actually consider this an interesting approach to elections, but recognize, first, that there is no chance of it being adopted; and, second, that it takes the election process so deeply into terra nova that it can in no sense be considered a conservative approach to reform.

Most lawyers and judges have a high regard for the jury system. It is an admirable expression of representative democracy, with jurors chosen at random from the voting public to represent the public as fact finders. Well-established procedures protect the integrity and independence of  juries, and the jury usually gets it right.

Consider making the Electoral College a jury, one that actually meets together, privately, to consider the qualifications of possible candidates. This jury would consist of electors chosen randomly from voter rolls across the nation. The jury would operate under the rules of a grand jury, with blanket subpoena power, except that a potential candidate could quash any subpoena relating to his qualifications by declaring his non-candidacy. The jury could consider any candidates it wishes, and not just those put forward by political parties or other powerful interests. Candidates could be summoned to appear before the jury (again, being allowed to refuse by announcing their non-candidacy) and questioned by its members. If a consensus forms around a candidate during deliberation, he is the next President. If no consensus forms by a reasonable deadline, the jury submits its top candidates to the House, who chooses from them as presently outlined in the Constitution.

Many details would have to be worked out. The integrity and independence of the jury would have to be fiercely protected, both by norms and by a narrowly tailored exception to the freedom of the press imposing severe penalties on anyone publishing the identities of electors or reporting on their deliberations. Jurors would be sworn to secrecy during their deliberations and for an extended period of time (eight years at least) after the election. The number of jurors would have to be large enough to be a representative cross-section of citizens while still being small enough for meaningful deliberation., This likely means 50 is too many, which in turn means that there can be no guarantee that each state has at least one elector. With that guarantee discarded, the electors could be chosen at large across the nation.

We believe there are many attractive features to such a system. But we also understand that there are cogent objections to it. Considering these objections may help us understand  better what features are important in an electoral system.

• This system seems capable of producing a President of genuine capability.
• Because the electoral college is chosen at random from the entire voting public, it is unlikely to be dominated by any fringe group, and its choice for President is likely to be a moderate. Because the college is free to draft candidates, it is not restricted to considering only ambitious politicians.
• On the other hand, while such a system would be representative, it would not be comprehensive. It may well choose the candidate the public at large would choose if it could put the same consideration and deliberation into its voting choices, but the fact is that the public at large will not have chosen the candidate. They will not be invested in the candidate and he will have difficulty commanding their affection. On the other hand, the President so elected will, for that reason, have a strong incentive to appeal to the entire voting public, in order to win such affection.
• The candidate would be chosen by representatives from across the nation, independently of Congress, but whether this will be regarded by voters as selection by the nation as a whole is problematic. In particular, small states that rarely provide electors will almost certainly feel left out of the process.

So, while this is an intriguing thought experiment, it cannot be considered a serious proposal.

A genuine system of run off elections

Primaries are not true run off elections. Fully half the voters are left out of each primary, and primaries take place at different times and in different manners in different states. Is there a way to winnow candidates prior to the general election that gives all voters an equal say regarding every candidate?

We anticipate that a full dozen serious candidates are likely to emerge at the start of such an election process. We could imagine, with modern voting methods, holding elections at regular intervals to winnow the field. The first election, say, in June of the election year, would winnow out half the candidates. A second in August would winnow out another half, leaving three viable candidates. An election in October would either produce a majority for one, or eliminate one for a final election on the traditional first Tuesday of November. It could be done, but it would be cumbrous.

Another possibly is a system of ranked voting. In this system, a voter ranks the candidates from most preferred to least preferred. There are many variations on this system, but we will examine just one to illustrate the concept: If a majority of voters have ranked a particular candidate as their first choice, he is elected. If not, the candidate receiving the fewest first choice votes is eliminated, and the second choice of all voters who selected him as their first choice automatically becomes their first choice. The process repeats until one of the remaining candidates is left. Such a system requires only one election, albeit with more complex ballots that demand more time and thought from voters. (Is this necessarily a bad thing?)

• There is no particular reason to think this system will produce better candidates.
• Candidates who are acceptable to a wide swath of voters will have an advantage over candidates who appeal strongly to only a part of the electorate. Such candidates will likely be moderates, and moderates will more likely be viewed as statesmen.
• There is a good chance that a quite large portion of voters will have listed the winning candidate somewhere among their high ranked choices. Even if the successful candidate is a voter’s second or third choice, he will still have been their choice, with a corresponding sense of investment.
• The requirement that the President is elected by the nation as a whole, and not by Congress, is fully met. No election will ever be thrown into the House for final disposition.

Party primary reform

The final alternative is a restoration of full control of the selection of party nominees to their respective parties.  This would mean repealing open primaries and first past the post primaries. Delegates might still be bound to vote based on a primary vote on the first ballot at their respective party conventions, but this would rarely produce an immediate majority and delegates would then be released to vote as they judge fit.

• Historical experience strongly suggests that this will produce better candidates than the present system.
• Historical experience suggests that party leaders will steer the nomination towards a candidate likely to appeal to most voters in the general election. This likely means a moderate. Because the decisions will be shaped in “smoke-filled back rooms”, the possibility of a draft candidate (an Eisenhower) remains open.
• The ultimate winner will likely have won at least a strong plurality, if not a majority, of voters in the general election. As a moderate, and possibly a draft candidate, he will be in a good position to command the respect of most citizens. Party leaders have a strong motivation to expand their party base and will steer the nomination accordingly.
• The final general election will be by the nation as a whole, without Congress being involved except in the closest of races. However, the nominees will not have been chose by the nation as a whole. It is this weakness that prompted state legislators to take control of the nomination process, in a (we believe misguided) attempt to make the process “more democratic.”

If we give much weight to historical experience, and seek the least intrusive or novel approach to reforming the nomination process, we must prefer this last approach. However, it might actually be easier to build a national consensus for run off or ranked voting elections than for a return to the “smoke-filled back room”, though run off or ranked elections would likely require a constitutional amendment.

Ultimately, whatever structural changes are adopted, the nomination of better candidates for President will require the public to acknowledge the need for a better process and the willingness to adopt new norms. We wish we could be more sanguine about this. What we see is that, the worse the Presidents are that are elected, the more fierce their supporters are in defending them, invariably on the grounds that their opponents would have been even worse — for which there is always powerful evidence. It’s a race to the bottom.