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  • Jeffery K. Rubenstein

Electoral College

CONSTITUTION OF THE USA: ARTICLE II, SECTION I, CLAUSES 2 & 3 Constitutional Convention Philadelphia 1787

During the Constitutional Convention of 1787, the Founding Fathers' biggest issue was, “How to elect the President of the United States?” Their debate raged for months. The most enlightened men wanted a democratically elected president by popular vote. Conservatives wanted Congress to elect the president. The latter was opposed by many. They had just fought and won a war of independence from a tyrannical king. And feared cronyism would lead to collusion between the Executive and Legislative branches of government. Give rise to yet another tyrant. A power struggle was on.

Black Lives Matter

Except for John Adams of Massachusetts, the Founding Fathers were all slave owners. They wanted their slaves to be counted in the census to determine their states' representation in the House of Representatives. But they didn't want to risk that slaves could get the right vote. This was especially advocated by the southern states with large plantations and many slaves. It was also a power play to counter the representation of northern states that had fewer slaves and more white people. A compromise resulted that each slave counted for 3/5 of 1 white man. So much for “All men are created equal.” Black men finally got the vote in 1865. But abuses were intimidating and longstanding. The repercussions of racism and bigotry have echoed down through time. And contributed to the Black Lives Matter protests of 2020.

#MeToo

The men that wrote the Constitution all had numerous female relatives and acquaintances. But they only counted each white woman as equal to 1 white man for census purposes. Women did not get the vote until 1920. This has been a blind spot of democracies since Ancient Greece. The designation of women as property and objectification as sex objects has lead to abuse, intimidation and harassment. And gave rise to the #Me Too movement of the 21stCentury.

Presidential Electoral Compromise

The solution to the struggle for presidential election policy was a compromise that came to be known as the Electoral College. The Constitution prohibits federal officials but not state officials as Electors. States were all granted the power to establish how they choose Electors and their Electoral College voting policies. At this time 48 states have a “winner take all” policy based on the popular vote. Nebraska and Maine allow each district's Elector to vote independently based on the popular vote in that district. This year's Electoral College vote will be December 14, 2020. Technically, the Electoral College not the American people elect the president.

Faithless Electors

If the Electors in USA presidential elections are supposed to pledge to vote based on the popular vote, what happens when they do not? Throughout American History there have been 5 presidents elected by the Electoral College rather than by popular vote. Most recently the 2000 election of George W. Bush rather than Al Gore (who lead by 500,000 popular votes). And the 2016 election of Donald Trump rather than Hillary Clinton (who lead by 3,000,000 popular votes). This resulted in Faithless Electors Laws. Most states now require a verbal or written roll call of Electors' votes rather than a secret ballot. And state laws specify sanctions that can be brought against Faithless Electors.

700 Failed Attempts to Amend Constitution

Over time there have been 700 failed attempt to amend the Constitution and remove the Electoral College. The Elector College is an archaic method of electing a president. So why is it still the law of the land? Because the Constitution is difficult to amend. A 2/3 vote by Congress ratified by 3/4 of the states is required. The president does not have any constitutional role in the amendment process. However, the party in power is never eager to dismantle the Electoral College, since that put them in office.

JKRLAW Offices of Jeffery K. Rubenstein

Jeffery K. Rubenstein is a Criminal Defense Attorney in Beverly Hills and a former LA County Prosecutor. He is a member in good standing of the Federal and California State Bar Associations. And an expert on Constitutional Law, Federal Criminal Law and California State Criminal Law. A law professor, he has lectured extensively on constitutional law, constitutional rights, criminal law, domestic violence, cybercrime, cyberstalking and stalking.

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