Our Quadrennial National Convention: The Electoral College

October 18, 2021 Updated: October 25, 2021

Commentary

The United States has sponsored a constitutionally authorized national convention every four years since the founding of the Republic. All these conventions have done their jobs and honored their assigned agendas.

Alarmists who claim a federal amendments convention would rage uncontrolled should remember the success of our quadrennial national conventions. We call them, collectively, the Electoral College.

This column explores the place of the Electoral College in the constitutional structure. It also examines some of its lesser-known characteristics.

The Electoral College is the middle tier in a three-tier presidential election system. The tiers are as follows:

  1. State appointment of presidential electors in the manner directed by the state legislatures. All state legislatures have delegated this choice to the voters at large.
  2. Election of the president and vice president by a majority vote of the presidential electors.
  3. If no one receives a majority of electors (and this is very rare), a run-off election in the House of Representatives for president and in the Senate for vice president.

The Electoral College is one of several entities to which the U.S. Constitution assigns special and limited responsibilities—that is, responsibilities other than the usual legislative, executive, and judicial duties. The courts call these special responsibilities “federal functions (pdf).”

Among the entities exercising federal functions are the following: Congress acting without the president, the House of Representatives acting alone, the Senate acting alone, the states, governors acting alone, state legislatures acting with or without their governors, in-state ratifying conventions, federal proposing conventions, and federal trial juries, and grand juries.

Examine the three-tier election system outlined above. It includes several federal functions: The states “appoint” electors; the state legislatures direct the “Manner” of appointment (Article II, Section 1); the electors choose the president and, if necessary, vice president; the House of Representatives conducts a run-off for president; the Senate conducts the run-off for vice president (Amendment XII).

When delegating federal functions to particular entities, the Framers usually chose known institutions. For example, the Anglo-American trial jury was very old. Everyone knew it had 12 members, its decisions had to be unanimous, and so forth (pdf). Similarly, everyone understood the nature of state legislatures, state conventions, and federal conventions of states. The Supreme Court is guided by those understandings.

By contrast, no existing institution seemed to meet the country’s needs for presidential election. If Congress or the states chose the president, he might be too dependent on those who chose him. If the people chose him directly, the election might be marred by mob behavior and other deficiencies. There were many other problems as well, and I’ve detailed them in an earlier column.

So the Framers created the Electoral College almost from scratch. To be sure, they did have a few indirect-election models to learn from. The Scots picked their representatives to the British Parliament through locally chosen “commissioners.” The Holy Roman Empire elected its emperor indirectly. Maryland voters elected electors who in turn elected their state senators. But because of the unique needs of the United States, none of these models was entirely satisfactory.

So the founding generation—that is, the Framers, the ratifiers, and the authors of the 12th Amendment (1804)—created an electoral assembly with distinctive features:

First, like a federal juror or convention delegate, a presidential elector holds neither a state nor a federal office. Moreover, the Constitution prescribes that “no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” (Article II, Section 1, Clause 2).

Second, like nearly all other conventions, the Electoral College is assigned a limited agenda in advance. That agenda is to cast ballots for the president and vice president. Nothing more.

Third, unlike other conventions, the Electoral College has both in-state and interstate characteristics. It’s a classic example of the Constitution’s blending of “national” and “federal” features of the sort James Madison celebrated in “Federalist No. 39.” Electors are chosen individually and they meet in the state capital, as is true of state conventions. But each state’s tally is aggregated with those from other states, as in federal conventions.

Furthermore, Electoral College votes are allocated neither entirely by population, as in-state conventions, nor entirely by state, as in federal conventions. The allocation is a compromise. More populous states have more electors than less populous ones, but every state has at least three.

Finally, the system’s creators recognized that those choosing electors could instruct them—just as they instructed convention delegates. Yet the creators also believed that when it came time to vote, electors could exercise discretion. In this respect, electors would be like state convention delegates. But they would be unlike federal convention commissioners, who could be told exactly how to vote and recalled if necessary.

Last year, however, the Supreme Court decided that states may bind electors to vote exactly as directed. In this respect, electors are now more like commissioners at a convention of the states than like state convention delegates (pdf).

The baseless argument that a “national convention can do anything” has never had any force with the national convention known as the Electoral College. To my knowledge, no elector has ever claimed he or she had any power whatsoever beyond the prescribed agenda of electing a president and vice president.

This is not for lack of opportunity. Although the Constitution requires that electors meet in their respective state capitals rather than in one place, for the last 150 years, electors in different states have been able to communicate electronically. Still, none ever has varied from the limited agenda of voting for president and vice president.

A very respectable record.

Robert G. Natelson served as a law professor for 25 years and is senior fellow in constitutional jurisprudence at Colorado’s Independence Institute. He is the author of “The Original Constitution: What It Actually Said and Meant” (3rd edition, 2015) and was the principal architect of a brief cited by Justice Elena Kagan in the 2020 electors case.

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

Rob Natelson
Robert G. Natelson, a former constitutional law professor, is senior fellow in constitutional jurisprudence at the Independence Institute in Denver.