Here’s a possible election scenario which could have the unprecedented effect of generating praise for our long-unloved electoral college.

Imagine, if you can bring yourself to think it, that John McCain wins the election by a narrow margin in the electoral college. Note that about 24 states do not bind their electors to vote for the winner of the popular vote in the state. Now, imagine that electors from many of these states decide that Sarah Palin is simply not qualified to be Vice President, and they refuse to cast their VP ballots for her. As a result, no VP candidate gets a majority (270) in the electoral college. And so, pursuant to the Twelfth Amendment, the U.S. Senate chooses between the two leading vote-getters, Biden and Palin. Any doubt which one they’d choose?

I suggested in the last post that the Vice President is properly considered an elected official, despite riding into office on the coattails of the President who selected him. But I glossed over the reason why. Let me explain.

Under the Constitution, the election of the President and the election of the Vice President each require a majority of the electoral college.¹ Unlike mere voters, electors are commanded by the Twelfth Amendment to cast separate ballots for President and for Vice President. Thus, from the constitutional perspective, the VP is elected independently of the President.

From the perspective of mere voters, however, the VP is arguably less vetted than cabinet appointments, who at least face independent confirmation by the Senate. We are consulted on the VP’s selection only indirectly, and only through the party nominating process. To us, the VP is hardly different than the First Lady, who is also “selected” by the presidential candidate and assumes her “position” in the White House when the President is elected.

We do hold a theoretical bludgeon with which we might reject a VP selection—but we must be willing to yield the presidency too if we would wield the bludgeon. The fact that the VP’s name is formally on the ballot therefore makes little difference.

We need not be satisfied with the manner in which the Vice President is elected. But we need not fault the Constitution for that, unless we desire to eliminate the position entirely. Alternatively, we could consider statutory change to provide for separate popular election of the VP—the subject of a later post.

1. Electors are allocated according to the number of members in the states’ delegations to Congress. U.S. Const. art. II, s. 1, cl. 2. D.C. also gets 3 electors, as if it were the smallest state. See U.S. Const. amend. XXIII. 435 Reps, 100 Senators, plus 3 for D.C. = 538 electors. Hence, a majority requires 270. [↩]