Voters agree on a lot more than one might suspect, given all the divisiveness and anger this year. Most people are upset with their options, and they simply want to put the nightmarish presidential election of 2016 safely behind them.
The Electoral College—the state-by-state way in which Americans elect presidents—rewards the candidate who builds the best national coalition. This year, it seems that the biggest coalition is made up of people who want a third choice. What has gone wrong? And is there really no way out?
A few simple mistakes are being made, repeatedly, this year. The good news is that these mistakes can still be fixed. There are ways out, even this late in the process. The states are not subject to the whims of the Republican or Democratic national committees. They are not doomed to watch helplessly as scandal after scandal emerges about the two major-party candidates. They have always been in charge of this presidential election. Everyone has just forgotten it.
We need to remember that America is not a pure democracy. Sure, we have democratic processes, but we also have all sorts of checks and balances and safety valves. The American Founders knew the importance of selecting a president who reflects the “sense of the people.” But they also knew that sometimes pure democracy needs to be tempered with a bit of deliberation and compromise. The country is too big and diverse for anything else.
States Are In Charge, Not Political Parties
At many points during the year, deliberation and compromise could have helped the process. Unfortunately, such attempts never really got underway; they were instead blasted as part of a “rigged” process. How unfortunate that the checks and balances in our Constitution and presidential election process have been so badly misunderstood. How unfortunate also that the states’ power to express themselves has been shoved under the rug.
The mainstream media persists in pretending that we will hold one national election between two national candidates on election day. But that’s not what actually happens. The Electoral College is, at its heart, driven by a series of state actions.
We hold 51 presidential elections in this country—one in each state and one in the District of Columbia. These elections are conducted according to the rules put in place by each state legislature. We’ve all been acting like the RNC and the DNC are in charge, but they aren’t.
Ultimately, the Constitution provides that the states remain in charge of this and every other presidential election cycle. State legislatures have all sorts of options open to them. States will have different perspectives, of course, and some will decide that they are content with the RNC and DNC choices. Nevertheless, options exist.
You Have Other Choices, Thanks to State Legislatures
In modern times, states have typically chosen their states’ electors through a statewide popular vote, but they don’t have to do so. Many of the electors who voted for George Washington, John Adams, and Thomas Jefferson were simply appointed by state legislatures. Even today, states retain the authority to simply pick the electors themselves. They can pick electors to vote for anyone, even someone who is not currently a candidate.
Maybe some states would feel that it’s safer to appoint electors directly! After all, a state legislative vote can’t be hacked. As another option, state legislatures could make clear that electors are free to vote for a candidate other than their national party nominee. A legislature might try to define a limited choice, perhaps allowing electors to vote for a vice presidential nominee in place of a presidential nominee (so Mike Pence instead of Donald Trump, or Tim Kaine instead of Hillary Clinton).
There are many possibilities. But the states don’t have to follow the course that has been laid out by the RNC and the DNC, unless state representatives want to do so.
In recent weeks, some commentators have suggested that electors should exercise independence and cast their ballots for someone new. True, electors are generally independent once they are elected; there are good legal arguments that they cannot be constitutionally bound.
However, as a practical matter, perhaps the best aspect of state legislative action is that it retains democratic legitimacy: Voters select legislators and hold them accountable every two or four years. Unlike in the past, most Americans today know nothing about their potential electors, much less how to keep them accountable to anything.
The voters in each state will have different priorities and make different choices. Such is to be expected in a country as big and diverse as our own! But certainly the states’ freedom to act in their own interest is one of the great benefits of our Constitution.
At a minimum, Americans deserve to know that they have other choices and can express those choices through their state legislators. The Framers of the Constitution gave us that escape hatch. In the end, perhaps they will decide to stick with the two major-party nominees. Either way, “We the People” within our individual states, not establishment politicians in political party committees, are in control of this presidential election.