I wasn’t going to submit this article with everything else going on, but I have been reading a fantastic book by one of my favorite authors, James Grippando. He is a trial lawyer in Florida who rivets me with his books (Duh, I wonder why?). His latest, “The Big Lie,” concerns the 2020 Election and the votes in the Electoral College, but with fictional people. In the story, the Republican is the winner, but some of the chosen delegates want to not vote for him when the time comes. Many legal and political issues soon arise. Read it after you read the content below.

So, here we go with the college.

In the last 20 years, two different U.S. presidents were elected and installed by the Electoral College vote even though they had lost the national popular majority vote. The first was the Gore-Bush debacle with Florida being in the balance and the “hanging chads.” Gore actually had more votes nationally than Bush. The same held true in 2016 when Hillary Clinton had more votes than Trump.

The reason that these two events occurred was because the Electoral College vote is determinative of the winner and not actual total votes cast. Many Americans are questioning the continued viability of the Electoral College and are considering its removal from the electoral system.

Before deciding the good or evil of this original part of our country’s creation, let’s take a look at its history. One must go back to 1787 and the original version created by the Constitutional Convention. The goal of the conventional delegates was to create a deliberative body of electors who would convene in each state to deliver a consensus non-partisan choice as to who would be the most able president. In that case, almost all wanted George Washington. They also hoped to avoid the creation of competing political parties. They had observed the fighting between the Whigs and Tories in England and wanted better for their new republic.

In spite of differing interest groups, be they men who were farmers, people in business or even the military, there was hope that with the separation of powers and checks and balances there would be a consensus-elected president. This in spite of the existence of diverse political beliefs. They were wrong.

The elections of the next two races were completely partisan and proved that a consensus-choice was not working. Back then, each elector had two votes. The candidate receiving the most electoral votes was the next president. Unfortunately, the one with the second most was the vice president. John Adams won by one vote and got a vice president who was his political opponent for that office. Later, Thomas Jefferson tied with Aaron Burr, even though Burr was his running mate. Congress then declared Jefferson the winner.

There clearly was a need for a constitutional change, and it happened with the 12th Amendment, which was ratified in 1804. There were several changes. States now voted for one presidential candidate and one for vice president. Each state certified the number of electoral votes for each office and sent the results to the Senate. The Senate president then opened all results on the same day. The person with the highest number was the winner of each position. If none had a majority, then the rules changed. If there were three candidates, the one with the most electoral votes won, even if it wasn’t a majority. If there were more than three candidates with votes, then the House of Representatives took over and by majority vote decided who was the next president or vice president.

Later in the 1820s, the assumption of having states with some votes for different candidates fell aside and many states changed their own rules to a winner-take-all philosophy. Thus, with more than two candidates, a candidate without a majority of electoral votes could win the office. This was a clear disconnect with the 20th Amendment’s original vision.

Between 1904 and 2000, of the 25 presidential elections, only one failed to award the office to the candidate with a majority of the popular vote. Then came Gore v. Bush. Because there were eight candidates on the ballot in Florida, and with Ralph Nader politically even to the left of Gore, Bush — while having less than a majority of the popular vote — won all the electoral Florida votes. Clearly had it been a two-party race, those Nader voters would have gone to Gore and he would have had a majority. Thus, Bush had the most votes. Under the 12th Amendment and Florida’s own law on the winner taking all the electoral votes, he received all of the Florida votes in the College and won the presidency.

The assumption of there being just two parties in an election as envisioned by the 12th Amendment was out the window. The belief that a president must have more than 50% of the votes of the College was no longer guaranteed.

The election process was again adjusted with the 20th Amendment, passed in 1933. The new president would take office on the 20th day of January, rather than in March. The seating of the new Congress would occur in January but before the 20th. The idea was to shorten the period of the “lame duck” presidency. With communication and travel limited the way it was in 1789, there was obviously a need for an extended delay between election and being seated, but that waiting is no longer necessary today with transportation and communication as it is.

So, is it time to reconsider the Electoral College? Traditionally, the Republicans want the Electoral College deciding the presidency and not the total popular vote of the people. But with the current mess in the Republican Party, that may work against them in 2024. Lifelong Trumpers could have one candidate and the Trump-despisers, but not Democrats, could totally split the Republican vote with their own candidate and lose again. Time will tell, but one might see a move for change in the Electoral College if the Republicans regain the Houses of Congress in 2022. The passage of the 12th Amendment took less than a year to be ratified by the states. Think how long that might take today.

Dennis Marek can be contacted through the Daily Journal at editors@daily-journal.com or through his personal email at dmarek@ambltd.com.