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The Uphill Battle to Protect the Electoral Faculty

If truth is stranger than fiction, then presidential politics must be the truest part of American government. Consider the 2016 presidential election. The contest featured the two least popular candidates in American history, and the victor had no prior political experience and little understanding of the government he was to lead. He achieved office by winning only a majority of electoral votes, despite having once called the Electoral College a “disaster for democracy.” In the period between Election Day and the December meeting of electors, a high-profile effort by celebrities tried to lure so-called “Hamilton electors” to cast their votes for someone other than Trump. In the name of preventing a demagogue, these electors were asked to ignore the preference of a majority of voters in their states. After the electors’ votes were cast, three of ten “faithless” electors were fined by the State of Washington for violating their pledge to vote for Hillary Clinton, and their suit led to a 2020 Supreme Court decision in Chiafalo v. Washington. No wonder one of the most insightful comments on the election came from a news-parody site, The Onion, which posted a headline declaring that “Electoral College Does What It Was Either Designed To Do Or Explicitly Designed To Prevent.” Who knows what may be in store this time around?

An Enduring Controversy

Some aspects of the American political system have always been a tough sell, and the Electoral College was controversial from its beginning. It was conceived as a solution to the problem of selecting a chief executive who would have sufficient independence to faithfully execute the laws, balance the power of Congress, provide stable administration, and protect the Constitution. Yet it quickly came under attack for separating the president from the people, as the Antifederalist writer “Republicus” made clear: the electoral system, he proclaimed, introduced obstacles and complexities to the “plain simple business of election,” forcing a free people to “resign their right of suffrage into other hands besides their own.” This anonymous Kentucky writer had captured the enduring essence of the case against the Electoral College.

In the decades since the adoption of the Constitution, the Electoral College has continued to be criticized and often misunderstood. It has been presented as confusingly complex (even by people who should know better), undemocratic, and even a mysterious system by which faceless (and faithless) electors really select the president without regard for the “will of the people.” As anyone who has taught American government to undergraduates can attest, the idea that electors are a potentially malevolent force waiting to unleash a coup d’etat and overrule the outcome of the popular vote is a staple objection to the Electoral College held by many Americans.

These criticisms make the process of electing a president seem to be at best a “lottery” (to use the expression novelist and 1968 presidential elector James Michener once attached to it) and at worst a kind of conspiracy. The Electoral College has been denounced as a device to protect slavery and as a means for exacerbating income inequality, although the evidence for the first charge is non-existent and the second claim is a conclusion drawn from the premise that the Electoral College is inevitably undemocratic.

The case against the Electoral College been a staple of American political debate, but it has received renewed attention in the wake of two presidential elections in less than 20 years (2000 and 2016) that awarded the Oval Office to the second-place finisher in the national popular vote. Critics of the electoral system have called for reforming it in a number of ways: by adopting an interstate compact to award electors to the winner of the popular vote, by eliminating electors and making the casting of state electoral votes automatic, by awarding electoral votes proportionately according to popular vote percentage, and—most dear to the hearts of the College’s critics—by the outright replacement of the electoral system with a direct popular vote for president.

The Electoral College has its defenders, although critics of the system seem to receive more attention online and on social media. Three of the most effective advocates for the Electoral College are Allen Guelzo (of the James Madison Program at Princeton University), Tara Ross (a retired attorney and author from Dallas), and Gary Gregg (of the McConnell Center at the University of Louisville). Each has written cogently on the need to maintain the Electoral College, although they are fighting something of an uphill battle. If it were not for the fact that the Constitution is so difficult to amend, the electoral college likely would not still exist, given the criticism it receives.

Into this debate steps a new documentary film, Safeguard: An Electoral College Story. The film, available for streaming on Amazon, is written and directed by M.A. Taylor. Taylor, a conservative filmmaker, directed the documentaries Clinton Cash (2016) and The Creepy Line (2018) and was a cinematographer on Hillary: The Movie (2008), the film that was at the center of Citizens United v. FEC (2009). Taylor and his colleagues have assembled an array of scholars, experts, and activists to present an hour-and-a-quarter case for the Electoral College.

The threat of billionaires buying elections is greater under direct election than under the electoral vote system.

The case is presented in a fashion familiar to viewers of documentaries of recent years. There is an overarching narrative that moves the film forward, punctuated by video clips from historical and contemporary events and insights presented by a variety of expert talking heads. One thing that distinguishes this film is that it is tightly organized to present its case in a fairly systematic fashion, eschewing much of the meandering mode of presentation that is common with many contemporary documentaries. Like many a Ken Burns film, it deploys creative means to present static images of America’s Founders in a way that holds the viewer’s attention.

Fighting the Uphill Battle

A notable element of this defense of the Electoral College is that it goes to great lengths, both in whom it presents and how it frames its case, to make it clear that support for the constitutional system of selecting presidents is not just something that should appeal to white men. Among the first images of the film are clips of Dr. Martin Luther King, Jr., giving his “I Have a Dream” speech at the Lincoln Memorial, and Barack Obama speaking to the 2016 Democratic National Convention on why “I am more optimistic about America than ever before.” The opening narration that precedes the credits is presented by Joseph Pinion, an African American political entrepreneur, businessman, and philanthropist. The experts whose comments form much of the evidence of the film are a diverse group that includes African Americans, a woman (Ross), scholars (including Guelzo and Gregg), politicians (particularly Steve Forbes), think-tank experts, and others. A message repeated several times in the film is that minorities—whether ethnic, religious, viewpoint, or otherwise—have a stake in the Electoral College.

Following the opening credits is a short history of the American Founding, emphasizing the Framers’ determination to produce a system of government that would be “carefully crafted” to protect liberty while promoting deliberation and policy directed to the public interest. The Electoral College is placed in this context as a device for helping to ensure that the presidency is not beholden to the legislature, the states, or even popular factions. The film also makes the case for the Electoral College’s relationship to federalism, and Safeguard presents one of the best defenses of federalism that has been made since the 1980s enthusiasm for “laboratories of democracy.” While the history is necessarily telescoped, it is effective at demonstrating that the Electoral College is more than just an afterthought of the Framers (another charge often leveled against it).

From this grounding, the film proceeds to make its case for the continuing value of the Electoral College as a protector of individual rights, the rights of minorities, and of the two-party system. Given that dismissal of the two-party system as an obstacle to effective governance has also become commonplace, the film makes a fairly bold claim that two-party politics is worthwhile and certainly better than its alternatives. The party system necessitates the building of coalitions in order to win elections, thus avoiding greater fragmentation and tugs toward the extremes than already exist.

Safeguard intentionally takes on the major arguments against the Electoral College. It demonstrates that the critics are right: it is not simple majority rule—and thank goodness for that. The complex system of checks and balances and indirect presidential elections helps to protect individual rights, which simple majority rule could threaten. As Allen Guelzo puts it, “The majority usually gets its way, but not always.” Likewise, it shows that the supposed threat of faithless electors is overstated. The film also addresses the issue of money in politics, showing how the threat of billionaires buying elections is greater under direct election than under the electoral vote system. It even addresses the 2000 Florida recount and points out how that ordeal would likely have metastasized had a direct popular vote system been in effect.

The film’s greatest virtues are its organization (which makes it more effective for educating than entertaining), its use of diverse experts, and its grounding in history. Its treatment of federalism is effective and shows that concern for decentralized authority is not just a defense of segregation. Its commentators are interesting and even lively at times, with Allen Guelzo providing the backbone for the film’s argument in the way that Shelby Foote served in Burns’ The Civil War.

Nevertheless, there are weak spots that deserve notice, especially if one is to recommend the film as a primer on the Electoral College. Surprisingly, Safeguard says little about how electors are chosen by states, which is important for understanding why all the hand-wringing over “faithless electors” is overwrought. When citizens understand that electors are chosen by the parties themselves (however specific state rules provide), they see that electors have little incentive to interfere with their party’s candidate when casting their votes. Moreover, in light of this year’s Chiafalo decision, in which the Supreme Court upheld the power of states to discipline “faithless electors,” the purported threat of rogue electors is vanishingly small. Another shortcoming is that, while the film takes up the possibility of candidates winning in a direct popular vote with only a small fraction of voters (say, a plurality of 25 percent), it ignores the fact that many direct election proposals set a minimum threshold of 40 percent for winning election. This oversight thus ignores a problem with direct election proposals: either they allow a candidate to win with a small plurality, or they potentially require a runoff and thus drag out election campaigns further and raise costs to the sky.

Like many documentaries these days, Safeguard at times blurs the line between the film’s creators and the experts who are interviewed on-screen as authorities. This is not a major problem, but it does leave a careful viewer wondering whether the remarks of some commentators are scripted. This is a problem that also plagues the work of other famous documentarians, but just because it is common does not make it any less problematic.

Safeguard makes a strong case for keeping the Electoral College, but it is still an uphill battle. Too many Americans view the presidential election system simplistically, as my own experience illustrates. A few years ago, Dr. Guelzo was the Constitution Day speaker on my campus and he gave a full-throated and powerful defense of the Electoral College. A bright student sitting near me in the audience listened to him and then just dismissed everything he said with a shaking of his head. “But it isn’t a majority of the popular vote” is all he muttered. Breaking through that shell will be hard. Let’s hope Safeguard can help crack it; the Electoral College needs more friends like this.

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