(In Part II of this essay we examine a number of failures and near-failures of the U.S. Electoral College, demonstrating a need for both an improved electoral process and better informed electors.)
Electoral College Failures and Near-Failures
Although the Electoral College has generally served the nation well for more than 200 years, a brief examination of events surrounding several of our most contentious presidential elections provides sufficient evidence that the integrity of the electoral process requires reinforcement and that major reform is called for.
For example, Republican Chester A. Arthur was elected vice-president of the United States in November 1880, and ascended to the presidency just five months and fifteen days after being inaugurated when President James Garfield was assassinated.
Although Arthur claimed to have been born in Fairfield, Vermont, on October 5, 1829, copies of correspondence contained in How a British Subject Became President of the United States (A.P. Hinman, 1884) indicate that no records of Arthur’s birth exist in the town or county clerk records of Fairfield, Vermont, or in the records of the Vermont secretary of state, covering the period January 1, 1822 through January 1, 1841. However, sources in Canada familiar with the Arthur family indicated that Arthur was born at Dunham Flats, Quebec Province.
Arthur’s mother, Malvina Stone Arthur, was an American citizen, born in Vermont. However, his father, William Arthur, was born in County Antrim, Ireland, and emigrated to Canada in 1819 or 1820, where he met and married Malvina Stone on April 12, 1821. The couple moved from Quebec to Vermont in 1822 or 1823, shortly after their first child, Regina, was born, but returned to Canada shortly thereafter.
Arthur’s father held British citizenship as late as 1822 or 1823, and it is highly unlikely that he would have applied for naturalization as a U.S. citizen while living in Vermont for a short period of time. In other words, he would not have been a naturalized U.S. citizen in October 1829 when his son, Chester, was born. If that is the case, his son, Chester was born with dual US-British citizenship and could not have met the “natural born Citizen” standard required by the U.S. Constitution.
During the 1996 General Election, the Clinton-Gore campaign received huge sums of money, perhaps millions of dollars, in illegal contributions from the People’s Republic of China, much of it hand-delivered to the White House in paper sacks by Chinese intermediaries — a clear violation of the Pendleton Act and the Federal Election Campaign Act of 1974. However, what is not generally known is that, in that same year, the Clinton administration agreed to provide the Chinese with a complete set of magnetic tapes from the U.S. Patent Office computers, containing every iota of U.S. technology registered with the patent office in the previous 160 years.
The massive technology transfer was thwarted when it was inadvertently disclosed in an internal Commerce Department newsletter. As such, it was not an issue in the November 1996 General Election. However, had the transaction been finalized and knowledge of it made known prior to the General Election, the American people would have expected the Clinton-Gore electors in the Electoral College to hold them accountable.
In 2004, Democrat John Kerry adamantly refused to release some 100 pages of his military records. What is known is that, while his six-year Navy commitment was completed in February 1972, he did not receive an honorable discharge until six years later, in 1978, after President Jimmy Carter signed an amnesty for Vietnam war resisters and draft dodgers, upgrading the discharges of all those who had previously received less-than-honorable discharges. According to documents published on Kerry’s own web site, his honorable discharge was granted after he was elected to the U.S. Senate, by”order of the president,” and only after a review of his record by a “board of officers convened for that purpose.”
As a leader of the Vietnam Veterans Against the War, and while still an officer in the Naval Reserve, Kerry met with North Vietnamese and Viet Cong negotiators in Paris in May 1970, a clear violation of the Logan Act. Kerry was given a copy of the North Vietnamese-Viet Cong seven-point peace proposal which he then reproduced, word-for-word, and distributed during a Washington peace demonstration in July 1971, urging Congress to accept the enemy’s seven-point proposal. This occurred seven months before the completion of his six-year Navy commitment,
If, as is suspected, Kerry received a less-than-honorable discharge from the Navy in 1972, and if he’d managed to eke out a narrow victory over George W. Bush in the 2004 General Election, how many Kerry-Edwards electors, honorably discharged veterans of World War II, the Korean War, Vietnam, and Desert Storm, would have felt duty-bound to vote against him in the Electoral College? The Electoral College was designed for just such an eventuality.
In 2008, a lawsuit was filed in federal court in Concord, New Hampshire, in which a New Hampshire Republican, Fred Hollander, alleged that Senator John McCain (R-AZ) lacked status as a “natural born” citizen and was, therefore, ineligible to serve as president of the United States. However, the court ruled that the plaintiff, a resident of Nashua, New Hampshire, lacked proof of direct injury (standing) and could not sue.
Former U.S. Solicitor General Theodore Olson, a conservative Republican, and Harvard Law professor Laurence H. Tribe, a liberal Democrat, were assigned the task of researching the issue. In a March 19, 2008 memorandum, Olson and Tribe concluded that, “Based on original meaning of the Constitution, the Framers’ intentions, and subsequent legal and historical precedent, Sen. McCain’s birth, to parents (plural) who were U.S. citizens (plural) serving on a U.S. military base in the Panama Canal Zone in 1936, makes him a “natural born Citizen” within the meaning of the Constitution.”
This was followed by an April 30, 2008 Senate resolution, approved by a vote of 99-0 (Senator McCain abstaining). The resolution declared: “Whereas John Sidney McCain, III, was born to American citizens (plural) on an American military base in the Panama Canal Zone in 1936: Now, therefore, be it Resolved, That John Sidney McCain, III, is a ‘natural born citizen’ under Article II, Section 1, of the Constitution of the United States. Given the fact of John McCain’s U.S. citizen parentage, it is unlikely that the Electoral College would have rejected his claim to the presidency based on the place of his birth.
However, in that same election year, the nomination and election of Barack Hussein Obama represented what may be the most egregious failure of the Electoral College in U.S. history.
Barack Obama was born on August 4, 1961, to an American mother, Stanley Ann Dunham, and an African father, Barack Obama, Sr., a citizen of Kenya, a British crown colony. Later, at age 6, after his mother remarried and established permanent residence in Jakarta, Indonesia, he was adopted by his Indonesian stepfather, Lolo Soetoro, and given the name Barry Soetoro.
Since 2008, numerous lawsuits have been filed in venues across the country alleging that Barack Obama was not born in Hawaii, as he claims, but at the Coastal Provincial General Hospital in Mombasa, Kenya, where his paternal grandmother, a half-brother, and a half-sister claim to have been present at his birth on August 4, 1961. However, since his mother was an American citizen at the time of his birth, it is all but certain that he was born with U.S. citizenship. Whether or not he can lay claim to status as a “natural born” U.S. citizen is another matter entirely.
Still others allege that, when Obama was adopted by his Indonesian stepfather in 1967, he was required to become a citizen of Indonesia before qualifying for admittance to public schools in that country. It is also alleged that he failed to apply for repatriation at age 18, after being returned to Hawaii at age 10 to live with his maternal grandparents.
What lends credence to these suspicions is the fact that, as his first official act as president, Obama signed Executive Order 13489 making all details of his personal history and family background available for public view only upon his personal approval. Since that date, he has spent hundreds of thousands of dollars, perhaps millions, litigating eligibility issues in federal and state courts.
It is precisely this sort of dilemma that the Electoral College was designed to prevent. In the period between November 4 and December 13, 2008, when the Electoral College met, the Democratic members of the Electoral College were informed on numerous occasions that Obama’s eligibility was in serious question. It was their responsibility as presidential electors to satisfy themselves that their candidate was, in fact, a natural born U.S. citizen and that he met all of the qualifications as set forth in Article II, Section 1 of the U.S. Constitution. No evidence exists that any of the 365 Democratic electors raised the issue.
Specifically, what was at issue in Obama’s case was the question of whether or not a man who was born on August 4, 1961, with dual US-British citizenship (see Part 2, Section 5 of the British Nationality Act of 1948); who acquired dual US-Kenyan citizenship on December 12, 1963 (see Chapter VI, Section 87, Subsections 1 & 2 of the 1963 Kenyan Constitution); who lost the Kenyan portion of his citizenship on August 4, 1984 (see Chapter VI, Section 97 of the 1963 Kenyan Constitution); and who reacquired dual US-Kenyan citizenship “for life” on August 4, 2010, more than 1½ years after being inaugurated as President of the United States (see Chapter 3, Section 14 of the 2010 Kenyan constitution); could lay any claim whatsoever to status as a “natural born” US citizen.
Needless to say, it would have created a constitutional crisis of unprecedented proportions, to say nothing of major social unrest, if it could have been shown that the first black man ever elected to the presidency did not, in fact, possess the necessary qualifications to serve as president of the United States. That political “sticky wicket” could have been avoided if the Democratic electors in the 2008 Electoral College had done the job they were elected to do under the U.S. Constitution.
Nor did the 2008 Democratic electors place any importance on the source of Obama’s campaign funds, in spite of the fact that numerous questions were raised in the mainstream media and in political circles. As the date of the General Election approached in late October 2008, Obama announced that he had raised some $600 million from 2.5 million contributors, with one-fourth of the money, or $150 million coming from contributors of $2,000 to $2,300, or, approximately 70,000 individual contributors. The remainder of the $600 million ($450 million), Obama insisted, was given by those who contributed “$10, $20, or $25… or whatever they could afford.”
Any fourth grader could calculate that $450 million cannot be contributed by 2.4 million people in $10, $20, or $25 amounts. The average contribution would have to have been in the range of $175 to $200. That much money, contributed by that many people, has never happened before in American politics and we can be absolutely certain that it did not happen in 2008.
Finally, upon the recommendation of this writer, investigative journalists employed by the Newsmax organization found that Obama’s official reports to the Federal Election Commission contained no fewer than 66,383 contributions in odd amounts, such as $188.67; $1,542.23; $876.09; $388.83; etc., etc. Unless we assume that nearly 66,400 people simply emptied their voluminous piggy banks and sent it all to Obama, pennies and all, we must assume that these contributions represented foreign currency conversions. However, upon interviewing randomly selected contributors whose names were associated with those odd-sized contributions, Newsmax investigators found that many Obama supporters denied having made contributions of that magnitude. In other words, the amounts of money reported were real, but the identities of the contributors were fraudulent. Who and what was the source of Obama’s foreign campaign funds? It is unlikely that we will ever know.
So, the question arises, are the historical anomalies described above the product of a weakness in the system, or are they a product of shortcomings of the individuals who populate the system? As the Founders debated in the Assembly Room of Independence Hall in Philadelphia during the summer of 1787, they struggled with the question of how to design a lasting republic for the people of the newly independent colonies. In an age long before radio and television, and years before the telegraph, when the three-century-old Gutenberg press was still the state of the art in printing, the Founders were haunted by fears of political intrigue and corruption… a carryover from centuries of cross-border cabals, palace revolts, political intrigues, and revolution on the European continent.
Our experience of recent years tells us that the Electoral College and the potential for electing a president and vice president with less than a majority of the popular vote is the least of our worries. What should concern us all is the fact that the Electoral College has on occasion failed to perform as the Founders intended, providing us with presidents and vice presidents who failed to meet the high ethical standards required, or who failed to meet the qualifications outlined in Article II, Section 1, Clause 5 of the Constitution.
Anyone studying the appropriate sections of the British Nationality Act of 1948, the Kenyan Constitution of December 1963, and the revised Kenyan Constitution of August 2010, as cited above, must conclude that Barack Obama failed to meet the “natural born Citizen” standard required by the U.S. Constitution. It was not necessary for either Chester Arthur or Barack Obama to apply for the dual nationality they held. Those citizenship anomalies were theirs by direct descent from their parents and by automatic operation of U.S. and foreign law.
The extent to which our political institutions have lost sight of the specific presidential and vice presidential qualifications established in Article II, Section 1 of the Constitution was brought into sharp focus during the 2016 Republican presidential primaries when no fewer than three ineligible candidates challenged for the GOP nomination.
Senator Ted Cruz (R-TX) was born in Canada to an American mother and a Cuban father; Governor Bobby Jindal (R-LA) was born in Louisiana to parents, both of whom were then citizens of India; and Senator Marco Rubio (R-FL) was born in Florida to parents, both of whom were Cuban citizens at the time of his birth. None of these men could claim status as “natural born” U.S. citizens and it is unlikely that any of the three could ever have claimed sufficient votes among “strict constructionist” Republican electors to win the presidency. The Electoral College failures of 2008 and 2012 notwithstanding, the 2016 Electoral College would have performed exactly as the Framers intended.
As the Framers instruct us in the Federalist Papers, members of the Electoral College are expected to “analyze the qualities” of presidential candidates and they are expected to “possess the information and discernment requisite to so complicated an investigation.” This does not describe what electors have done in recent elections as described above, nor does it describe the qualities and the characteristics that they have brought to the solemn responsibility they have been given. It is not the system that is at fault. What is most needed are electors who are capable of putting country above party.
(Next Week: Part III — The Sad State of the American Electorate… What voters know and don’t know before casting their ballots.)