The Electoral College Is A Ticking Time Bomb. Seriously!

Hi, I’m Rick Barron, your host, and welcome to That’s Life, I Swear

The United States Electoral College process is a loaded gun pointed at our system of government. Yet, we continue to follow this process playing Russian roulette with our democracy every four years. The question is, why?

Let’s jump into this

When you and I go to the polls every four years to elect our president, we go with the understanding that our vote decides the outcome. Well, it kind of works that way.

When our country was still in its training wheels as a new country, the framers of the U.S. Constitution created the Electoral College as an alternative to selecting the president by popular vote or by Congress.

The framers of the Constitution did not want a president's election to be left to the people. This is where a dude by the name of Alexander Hamilton comes into the picture.

Alexander Hamilton, you know, the guy from the Broadway play, ‘Hamilton’. Yes, that guy. 

Alexander Hamilton was an American revolutionary and statesman who was one of the United States' founding fathers, but, more importantly, he was a promoter of the U.S. Constitution.

Hamilton wrote a large document titled The Federalist Papers. He had help writing a series of essays within this document, but he wrote the majority. 

The purpose of the document was to help ratify the proposed United States Constitution.

Thinking ahead to the process of electing future presidents, Hamilton worried that some individuals could be elected president based on the popularity of who would play on people’s fears and ignorance to win elections.  He worried that such an outcome could result in the winner shedding their skins to reveal they would rule as tyrants. 

It sounds like Hamilton had a crystal ball that foretold that someone like Trump would pop up on the horizon one day. 

Being the history nut that I am, I’d did a little digging on the Electoral College process.

Our U.S. Constitution called out the Electoral College's purpose, [check it out in Article 2, Section 1] for electing a president was that American presidents are elected not directly by the people, but by the people's electors. 

The electors? When we cast our ballot for president in the popular vote, they in turn elect a slate of electors. The Electors then cast the votes that decide who becomes president of the United States. Now, usually, electoral votes align with the popular vote in an election. But that assumption hasn’t always been the case in our history, and I’ll get to that later.

In their infinite wisdom, and I’m sure with good intentions, the founding fathers thought that the use of electors would give our country a representative president while avoiding a corruptible national election. I’ll give the founders points for trying, but we’ve seen over our history that we’ve had moments where all hell broke loose during some of our presidential elections.

As we have seen from various elections, just because one candidate wins the popular vote [that’s you and me], the Electoral College [aka the electors] decides the outcome.

One lazy afternoon with a mint julip in one hand and a writing quill in the other, Hamilton wrote, and I quote, in the Federalist Papers No. 68: "This process of election affords a moral certainty, that the office of president, will seldom fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications."

Translation: the founders did not fully trust the people's ability to judge candidates' fitness for office. Ouch, that has to sting a little bit.

Hamilton and others felt they needed a screening system that would prevent any individual from being elected based on popularity and not on having high qualifications and keeping democracy secured. And there you have it, the birth of the Electoral College.

As our elections continued, various disputes and close elections caused many arguments into who won, thus making the Electoral process somewhat muddle. It became clear that something needed to be done to prevent future mishaps. 

Well, something did happen.

In 1887, the Electoral Count Act was passed. The purpose of the act came about as a result of several states submitting competing slates of electors, and a divided Congress was unable to resolve the deadlock for weeks during as it did during the 1876 presidential election.

While the Electoral Count Act was intended to address such complexities, the goal of clarifying some of the ambiguities in the Constitution concerning the Electoral College ended up creating even more profound ambiguities. 

Believe or not there is verbiage in the Electoral Count Act, that allows members of Congress to object counting votes from a state, even if they have no profound evidence that would warrant such a call. 

All of this can be done if just one member of the House and one Senator write an objection. One! The Electoral Count Act doesn’t even list what kind of objections are proper [where’s a cheat sheet when you need one], thus leaving it to Congress to decide if objections are appropriate or not. If this kind of dispute arises, Congress can debate what to do with the electoral votes. People, you can’t make this stuff up!

All this said, is it any wonder that, Donald Trump was tempted into trying to overturn Joe Biden's victory, using a fringe legal theory that his own vice president rejected. 

Scholars and politicians alike say the law remains a ticking time bomb. And with Trump on the horizon, members of Congress in both parties, yes both, agree that updating the dated verbiage in Electoral Count Act is a high priority. However, the changes need to mirror the current realities and threats facing our current election process. Not quickly addressing these changes before the 2024 election could place us in an election mayhem unimaginable.

Think my imagination is getting away from me? 

Unless the Electoral Count Act of 1887 goes through a spelling, grammar, punctuation, clarity, and other updates, we’re destined to repeat Jan. 6th. Trump and future want a be’s …will exploit the act’s main weaknesses of the document to meet their selfish whims. 

As I researched the history of the Electoral College and the Electoral Count Act on the Internet, I came across an individual named Matthew Seligman a fellow at Yale Law School. 

I discovered a document he wrote that exposes the vulnerabilities of the legal framework governing Congress’s role in resolving disputed presidential elections, that being the Electoral Count Act. Matthew’s document is 100 pages, but if you have time, I invite you to give a read as it's quite an eye-opener. 

One of the interesting items Matthew came across that shocked him was that in nine of the 34 presidential elections since 1887, “the losing party could have reversed the presidential election results and the party that won legitimately would have been powerless to stop it.”

We keep dodging bullets here, but sooner or later our luck will run out.

Now we have had close calls with past presidential elections where the winner won as a result of the electoral vote, sometimes the count was very close. Some examples were Rutherford B Hayes vs Samuel J. Tilden in 1876, Al Gore and George Bush in 2000, and of course who could forget the election of 2020 with Joe Biden and Donald Trump. Let’s see, Biden won by seven million votes with 57% of the electoral count, 306. 

But wait a minute, that election was stolen. Yes, Donald Trump tried to help us understand that the election was stolen from him! Come on, look at that face. Why would Trump lie? Lying is not his method of operation. 

According to half a dozen experts who have studied the issue, the easiest part in fixing the Electoral Count Act would be figuring out how Congress would accept the results from the states.

There’s wide agreement on three points to do that:

• Extending the safe harbor deadline, the date by which all challenges to a state’s election results must be completed.
• Clarifying that the role of the vice president to count the electoral votes is ceremonial and nothing more. In short, the vice president merely opens the envelopes and has no power to reject electors.
• Raising the number of members of Congress needed to object to a state’s electors; currently, one lawmaker from each chamber is enough to do so.

The 2024 presidential election is not that far away. Lawmakers who want to tweak the Electoral Count Act, according to Trump, are essentially admitting that “Mike Pence did have the right to change the outcome. 

For Trump his self-serving ego is what’s top of mind. He still can’t over the fact that he lost. All his life he’s felt entitled to what he wanted or expected to be his. 

As sad as the outcome of 2020 ended on the steps of the U.S. Capitol hill, what could happen in the 2024 election may have an uglier result. Trump’s attempt at a coup was nothing short of incompetence and clownish behavior. 

We’re seeing in key parts of the United States, Trumps army of loyalists, running for State legislatures dominated by followers of the Big Lie.

So, what could happen or rather is happening right now? 

Trump’s election deniers are running for secretary of state or attorney general in many states. As they see it, Donald won the 2020 election. I mean how could we not see he won? They won’t stand by and let this injustice happen again as they see it. 

They are taking steps to ensure that in 2024, that mistake will not happen, regardless of whether he loses. If these individuals get elected, they’re not going to hesitate to try to block certification in 2024. Some are seeking jobs as elections officials to use their authority to tilt the turnout. They could, for example, selectively reject provisional ballots from communities of color.

Are you getting this? This isn’t a NetFlix movie people. 

What can we learn from this story? What’s the take away

When I think of the possibility of Trump coming back into office, my stomach turns. Let’s not kid ourselves; Trump would come back with nothing but vengeance on his mind. He would feel vindicated that the people, his base, want him back. Let there be no illusions that Trump would quickly fill key departments with individuals who have nothing but the utmost loyalty to his orange-painted sun tan face. He’ll make sure to have learned from his past mistakes. Trump will want to take steps to fill key positions with ‘yes men’. In short, take control of the referees who would follow the rule of law, and ensure an iron grip with those who royalty is to Trump and not the Constitution.

We already see the underpinnings happening now to our democracy, and what’s worse yet, it’s happening right before our very eyes. Examples stem from new laws that change who counts the votes, elected individuals who have but one agenda on their mind, if you don’t like how the people voted you can just undue it all and elect the other person instead. 

So, where does the Electoral Count Act come into all this? Whether it’s Trump or anyone else, our Electoral College system must and needs a reboot to fit today's times. We are way past 1776! I don’t know about you but I don’t want to see another Jan. 6th from either party

I’ll leave you with this thought to contemplate in your head. We’ve had five elections in our history where the winner did not muster up enough votes from the popular vote. 

When I think of how polarized our country is today, winning a presidential election by an outdated system like the electoral college makes no sense. 

In my mind, the National Popular Vote to nominate our president is both a sound constitutional basis and compelling democratic logic.

Well, there you go. That’s life, I swear.

For further information regarding the material covered in this episode, I invite you to visit my website that you can find on either Apple Podcasts or Google Podcasts, for show notes calling out key pieces of content mentioned, and the episode transcript.

As always, I thank you for listening. 

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