As if there weren't enough problems associated with the ongoing presidential election, a valuable public discussion on Monday between two serious representatives of the legal community — both also well-versed in practical politics — illuminated a fundamental problem that has never quite been clarified to everybody's satisfaction.
And that issue — the basic one of how to count the votes — was the subject of a dialogue at the University of Memphis Law School between Robert Cooper, the former Tennessee Attorney General, and John Ryder, the current chief legal counsel of the Republican National Committee. What the two legal worthies were at pains to illuminate was the Electoral College, the means by which, in every election since 1789, the nation has elected its president.
Cooper and Ryder are legal scholars and know the nuances of Electoral College law, which are more Byzantine than most of us might imagine. Some states are, in the Orwellian sense, more equal than others. We refer to the fact that, while some states (Republican Tennessee, for example) are so overwhelmingly one-party-minded that there is no suspense regarding the candidate they will vote for, there are several so-called "battleground" states (Ohio, for example) that could go either way.
And because this is so, and because, further, it is the electors in each state, and not the popular-vote totals in that state, that determine how a state's Electoral College votes (determined by the number of its U.S. House and Senate members, totaled together) will be cast, this skews the way presidential campaigns are conducted. The swing states get catered to disproportionately by the contending candidates. And, significantly, a winner of the popular vote nationally (Democrat Al Gore in 2000 is a recent example) can be the loser of the Electoral College.
When you vote for president, you are really voting for the electors pledged to a specific presidential candidate; it is they who, well after election day, actually cast the votes that count. In practice, those electors are selected, on some sort of statewide basis, by the political parties which the candidates represent. Now here's a real complication: Only 30 states mandate that the electors on the ballot as representing, say, Trump or Clinton, must actually cast their votes for their candidate. In the remaining 20 states, though it is expected there will be a direct match of that sort, the electors are technically free to vote for whomever they choose. And, in multi-candidate races where there is no majority winner, the possibility exists for old-fashioned horse-trading and vote-swapping, either in the Electoral College itself or in the House of Representatives, which gets to break an unresolved impasse.
Confusing? Of course! There have been various proposals over the years for reforming the Electoral College or dispensing with it constitutionally in favor of direct national voting. But that is not likely. As Ryder noted on Monday, the system has worked with relatively little fuss, unlike that of, say, France, which, since 1789, has had two monarchies, one empire, and five republics.