How Do We Elect the President? A Discussion With Professor Michael McConnell

In the wake of the first wave of primary voting, former judge and Constitutional Law Professor Michael McConnell will discuss how we elect the President in a live taping of the Stanford Legal podcast. What are the caucus, primary, and convention systems? Why do we have an electoral college? Is there a good system for resolving disputed elections?

This episode originally aired on SiriusXM on February 15, 2020.

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How Do We Elect the President?

With a complex procedure of caucuses, primaries, and the electoral college, the American election process is a seemingly odd system. Joined by SLS’s Richard and Frances Mallery Professor Michael McConnell, Stanford Legal co-hosts Pam Karlan and Joe Bankman address the American presidential election system in light of the upcoming 2020 elections.

Considering the development of the complex electoral procedures, McConnell reports on the historical context that led to the system we have today. Leading back to the founding fathers, coming to a consensus on how to choose a president was extremely difficult, with multiple methods proposed.

The first proposed system was that Congress would decide the president. However, that conflict of interest would inhibit the checks and balances system, so the founding fathers focused on a method to choose the president independently from Congress. The system of popular election was proposed by James Wilson. “Hamilton favored that. Governor Morris favored that. But the main problem with it was simply on the technology of the day and the electoral infrastructure of the day,” says McConnell. Popular election was not feasible given these challenges.

As a result, the proposal to use the electoral college was viewed by the majority to be as close to popular election as possible. “So at the time when the electoral college was dreamed up, it was actually viewed by most of them as being about as close to popular election as we could get,” says McConnell.

While not expected by the founding fathers, the development of two national parties of the level that we have today has incredibly influenced the electoral system. As the parties are now embedded in the process, early Americans did not predict that any single candidate after George Washington would receive a majority of votes nationwide. Today, candidates nominated by one of the two major political parties maintain the most realistic possibility of being elected.

The development of the primary system started in the 20th century, however, the results were simply sources of information, as the parties were not required to follow the results in their nomination. The McGovern reforms in 1972 spurred the movement toward reliance on popular primary election. As a result, the parties relinquished their significant control of the ability to ultimately choose the candidate.

Before these reforms, parties had the control to present a nominee in their best interest, one “who had a serious possibility of commanding a majority and who would be able to govern credibly,” according to McConnell. “Now their job is simply to organize the debates and let the candidates compete.”

Considering modern influences on the election process, the political media environment has evolved significantly. McConnell discusses the effect of the presence of numerous media networks, as with more networks it becomes advantageous to become niche. “That’s you know, Fox,” McConnell explains. “Then once Fox does that, the other three become more radicalized and more homogeneous on the left, and instead of having three more or less homogeneous on networks, we end up having a more polarized media environment.”

Additionally, the discussion of faithless electors, those who ultimately cast their vote for a candidate different from who they previously pledged to support, is a prominent current issue surrounding the election process, with cases in the Supreme Court this year. However, this is no new topic of contention, as it directly leads back to the first presidential election.

“Of course this has happened from the very beginning,” McConnell says. “They didn’t used to call them faithless because, towards the beginning, no one really thought that they had any obligation. This reflects the original idea that the voters didn’t necessarily know who they should be voting for, for president, and so they would choose someone in whom they had faith locally to choose for of them. I predict the Supreme Court is going to hold the faithless electors have a constitutional right to be faithless.”

—Frances Schroeder