A Republic, If You Can Keep It

In 1787, as Benjamin Franklin left the Constitutional Convention held in what is now known as Independence Hall in Philadelphia, PA, he was reportedly asked what kind of government the founders would propose. He replied, “A republic, if you can keep it.” Based on their direct knowledge of history, the Founding Fathers understood that unlimited power tends to become a tyrannical power. So they created the United States as a republic. 

What is the difference between a democracy and a republic? 

Two of the most widely recognized forms of democracy are a direct democracy and a representative democracy.

  • In a direct democracy, all decisions are made directly by a majority vote of all eligible citizens, so the majority have their say on every matter concerning governance. Direct democracies hold referendums each time an issue has to be decided upon because there are no elective representatives. By their vote alone, citizens can enact laws and select or remove their leaders. The power of the [majority of the] people to control their government is unlimited. 

  • In a representative democracy, the citizens rule through representatives. The citizens elect those representatives periodically to keep them accountable. The power of the people to control their government is thus limited by the actions of their elected representatives. 

The key difference between a republic and a democracy is the limits to power. Both use the representational system, which means that the citizenry is represented in the government by elected leaders. In both cases, the majority rule, but in a republic, the constitution limits how the government can exercise power. These rights are inalienable and cannot be changed or altered by an elected government.[1] 

The United States is a republic state because the constitution limits the power of the government. The US Constitution was ratified in 1789 and established the United States as a representative democracy operated under a "republican" form of government. The public elects individuals to represent them at the government level, as provided for in Article IV, Section 4 of the Constitution, which states, "The United States shall guarantee to every State in the Union a Republican form of Government..."[2] The US is also a constitutional republic, which means officials are elected by the country’s citizens to represent them and must govern according to existing constitutional law that limits the government's power over its citizens.[3] This protects the rights and privileges of the citizenry regardless of whether they are in the majority or in the minority. The US is also a federal republic, which means a federation of states with a republican form of central government,[4] because states represent the citizenry at the federal level. States have equal representation in the Senate but proportional representation in the House. 

Why does this matter?

A pure unbridled democracy is a political system in which the majority enjoys absolute power through democratic elections. In an unvarnished democracy, unrestrained by a constitution, the majority can vote to do self-defeating things like imposing tyranny on themselves and the minority opposition by electing leaders who will infringe upon what the Declaration of Independence calls our God-given “unalienable Rights... life, liberty, and the pursuit of Happiness.[5]  

Thomas Jefferson, in his 1785 “Notes on the State of Virginia,” referred to this, a pure democracy, as an elective despotism. “An elective despotism was not the government we fought for...” Instead, he said they fought for a government “which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention, which passed the ordinance of government [215] laid its foundation on this basis, that the legislative, executive and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time.[6] 

In the 1787 Federalist Papers (No.14), James Madison articulated that “in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.”[7] 

The Founding Fathers believed that a constitution that limited and divided the power of government was necessary to preclude elected officials from imposing tyranny on the people, and that is why they adopted a constitution with limited enumerated power, divided and checked across several branches and levels.  They had seen the dangers of placing ultimate power into a single set of human hands and they also feared the "tyranny of the majority," especially of the uninformed. In response, the Founding Fathers created the Electoral College system as a process to insulate the selection of the president from the whims of the public. This was a compromise between having the president elected by Congress and having the president elected by a popular vote of qualified citizens.[8]

The Electoral College

The Electoral College system was established in Article II of the Constitution. Article II also states the following regarding the criteria for anyone running for president, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”[9]

There were no political parties at the time of the first presidential election. Back in the early days of the American republic, all the ballots were write-in -- people thought of who they’d best like to represent them and wrote that name in. The top two people who received the most votes took the office of the president and vice president, respectively. In 1789, George Washington was chosen unanimously by the electors to be the first president of the new republic of the United States of America. 

After that, political parties started to be formed. In 1800, Thomas Jefferson ran for president with Aaron Burr as his vice president. He ran a very contentious campaign against John Adams under whom he had served as vice president. While it was known that Jefferson was running for president and Burr was running for vice president, the rules were such that the top two were chosen. As it turned out, Jefferson and Burr tied in the electoral vote, which stirred up an electoral controversy. Burr refused to concede the presidency to Jefferson and the vote went to the House of Representatives. It took 36 ballots before the tie was broken with Jefferson carrying 10 out of the 14 states, thus becoming the third president of the US.[10] 

The issue that arose with the 1800 election led directly to the passage of the 12th Amendment of the Constitution in 1804 to address the matter of voting for the president and vice president. It requires each member of the Electoral College to cast one electoral vote for president and one electoral vote for vice president. Under these rules, there is no longer any possibility of multiple candidates winning presidential electoral votes from a majority of electors. A contingent election is held by the House of Representatives if no presidential candidate wins a majority of the electoral vote. The 12th amendment also established that the Senate would hold a contingent election for vice president if no candidate won a majority of the vice-presidential electoral vote, and provided that no individual constitutionally ineligible to the office of president would be eligible to serve as vice president.[11]  

The only other time in America’s 244-year history that no presidential candidate received a majority of votes in the Electoral College was in 1824. Andrew Jackson and John Quincy Adams were the top two candidates. That time, John Quincy Adams won the vote with the first ballot in the House and became the sixth president.[12]

How does the Electoral College work?

Electoral votes are allocated among the states based on the census. Under the 23rd Amendment of the Constitution, the District of Columbia is allocated three electors and is treated like a state for the purposes of the Electoral College.[13] The Electoral College helps give rural states with lower populations -- such as the areas where our food supply is grown and harvested -- an equal voice. One could imagine that if the popular vote alone decided elections, the presidential candidates would rarely visit the less populated states or consider the needs of rural residents in their policy platforms. Furthermore, America’s cities and states with the largest populations would drive the course of the entire nation.

By way of example, consider the following. The United States is the 3rd largest nation in the world with a population of over 330 million people.[14] It is estimated that more than 70% of the population is eligible to vote, so that is about 231 million eligible voters and a majority would be any number over 115.5 million. The population of the 10 largest states in the nation is over 169 million. Using the same estimate, the population of those eligible to vote (70%) in the 10 largest states is nearly 119 million, which is over half of the eligible population of voters in the entire US.

The US States Ranked By Population[15]

So, in concept, if the popular vote determined the outcome of an election, the 10 largest states in the nation could determine the fate of the other 40 states -- this is the “tyranny of the majority” that concerned the Founding Fathers. This example provides some context for why the Electoral College is important to help ensure that all of the states have some say in the outcome. 

It seems that around every presidential election people suggest eliminating the Electoral College claiming it’s not fair -- the popular vote should decide the outcome. In reality, the abolition of the Electoral College would disenfranchise a good portion of the nation because the states with the biggest cities and populations would drive the agenda. This is why our Founding Fathers created the Electoral College to help ensure fairness to all of the states in the union.

Pictorially, the following graphic created by Realtor.com reflects how each county in the US voted in the 2016 presidential election between Hillary Clinton (Democrat/blue) and Donald J. Trump (Republican/red). The map is overwhelmingly red, yet the blue areas predominantly represent the counties with the highest populations. 

Realtor.com map of 2016 Presidential Election Results by County[16]

The Founding Fathers also felt the Electoral College system would enforce the concept of federalism — the division and sharing of powers between the state and national governments.[17] Under the Constitution, the people are empowered to choose, through a direct popular election, the people who represent them in their state legislatures and the US Congress. The states, through the Electoral College, are empowered to choose the president and vice president.

During the general election, your vote helps determine your state’s electors.  When you vote for a presidential candidate, you aren’t actually voting for president.  You are telling your state which candidate you want your state to vote for at the meeting of electors. The states use these general election results (also known as the popular vote) to determine which state political party will select the individuals who will serve as electors.[18]

Article II, Section 1 of the Constitution states that electors can’t be a member of Congress, or hold federal office, but left it up to the individual states to figure out everything else. According to the 14th Amendment, ratified after the Civil War, electors also can’t be anyone who has “engaged in insurrection or rebellion against the United States, or given aid or comfort to its enemies.”[19] In the 48 winner-takes-all states and the District of Columbia, the candidate who wins the popular vote in a state wins all of the pledged votes of the state’s elector. Nebraska and Maine award electors proportionally. Three of Nebraska’s five electoral votes are awarded to the winner of the popular vote in each of its three congressional districts, with the other two given to the statewide winner of the popular vote. Maine has a similar proportional distribution, with two votes awarded to the statewide winner and the other two votes given to the winners in each of its two congressional districts.[20] Under federal law 3 U.S. Code 5 “Determination of controversy as to appointment of electors,” a state must resolve any controversy or contest concerning the appointment of any of the electors, by judicial or other methods or procedures, and make a final determination regarding its electors six days before the Electoral College members meet in person.[21] This means a state must resolve any election disputes by that date to choose the appropriate electors. 

It takes 270 electoral votes to win. If neither candidate gets a majority of the 538 electoral votes, the election for president is decided in the House of Representatives, with each state delegation having one vote. There are a total of 50 state delegations -- one for each state. The party that holds the majority of the representatives in that state heads the delegation. The current (116th) Congressional delegations are shown in the map below. In the case where there is equal representation between two parties, the map is purple as is the case with Pennsylvania, which presently has an even split of 9 Democrats and 9 Republicans in the House.

State Delegation Map for the 116th Congress[22]

If there is an electoral tie, the decision is taken to Congress. A presidential candidate needs a majority of state delegations’ (26) votes to win. Similarly, a vice-presidential candidate needs the majority of senators’ (51) votes to win. 

This year, the date the Electors will meet is 14 December 2020, so any disputes must be resolved and the electors selected by 8 December 2020. The new (117th) Congress will be sworn in on 3 January 2021 and will meet in a joint session on 6 January 2021 to count the electoral votes. If no candidate has reached 270 Electoral Votes, then the House and Senate take over and elect the president and vice president, respectively. 

Election Integrity

Joseph Stalin, former leader of the Union of Soviet Socialist Republics (USSR), reportedly said, “I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this — who will count the votes, and how.” This seems apropos to our current situation.

To help ensure election integrity and confidence in the vote and vote count, state laws require qualified poll watchers from the political parties to be able to observe every aspect of the voting and ballot-counting process. Also, states must ensure that ineligible voters, such as people who are deceased or are non-residents, are not able to cast votes. Too often, voter lists are not entirely accurate -- a voter may have changed addresses within a state, moved out of state, or died since the last time the database was updated.

This year, many of the issues we have faced could have been avoided had election officials heeded warnings about the dangers of compulsory mail-in voting and changing the election procedures too close to an election without their state legislature’s approval. We might also have avoided some of these problems if election officials had complied with their state’s laws guaranteeing candidates and political parties complete access to the process. Failure to do so damages the transparency essential to maintaining public confidence in the integrity of elections.[23] Illegally cast votes cancel out legally cast votes, effectively silencing part of the voting population.

To thwart such chaos in the future, Congress should take necessary measures to ensure election integrity by requiring minimum standards for all states, such as voter ID and having eligible citizens vote in person, only sending ballots by mail if requested.

As Benjamin Franklin wisely advised in 1736, “An ounce of prevention is worth a pound of cure.”

The Right To Vote

The right to vote is among the most sacred rights American citizens have. It is important that every eligible citizen stay informed and vote. We do this not only to ensure that we are aware of what is going on and that our voices are heard, but to show gratitude for those who risked everything, sacrificed their fortunes, shed their blood and lost their lives so that we could live in a country where we can freely exercise this right. This is important even for those of us who live in a voting district or state where our political point of view is in the minority. We must vote to make our voices heard to show those who are elected that they represent all of us and are accountable to more than just the citizens who agree with them. We The People need to hold our elected officials accountable to act and make decisions using their best judgment regarding what is right for the entire constituency they represent -- not just for special interests or simply down party lines. 

Diversity of thought, civil discourse, and careful deliberation have been hallmarks of our representative democracy and what is necessary to keep our republic. We should strive to ensure that all voices are heard and all perspectives are considered as we seek to make the best decisions regarding the direction of our great country, the United States of America. 

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