What Were they Thinking? The History of the Electoral College.

 

You think you’re unhappy with the Electoral College. Alexander Hamilton was its original champion, he participated in the resulting ugly House of Representatives' selection of the President in 1800, had his version of meaningful reform via the Twelfth Amendment shot down and then he himself was shot and killed in a duel precipitated largely by the election of 1800. There was a rather good play about it. Maybe you've heard of it.

Part II, How it Started.

Under the original Constitution, the House of Representatives was to be the only part of the federal government directly elected by the “people.” The quote marks are there because the only people who could vote were almost exclusively white males over 21 who owned property. The framers of the Constitution considered, and quickly rejected, the idea that the President could be chosen by even this exclusive group.  The United States was, both before and after the adoption of the Constitution in 1789, a collection of powerful and independent minded states. Daniel Webster’s famous and politically groundbreaking speech where he declared that he spoke “not as a Massachusetts man, nor as a Northern man, but as an American and a member of the Senate of the United States” was still more than 60 years away.

The framers fully expected voters to vote only for a candidate from their own state. Aside from George Washington, the public was largely only aware of leaders in their own state and had access only to local news.  The fear was that Virginia and New York which held the largest populations would always have the top vote getting candidates in any national popular vote. The Electoral College they worked out called for each state legislature to choose, in any way they wanted, individual electors.  The number of electors they could choose would be equal to the number of Senators and member of the House of Representatives that state had.  This gave a minimum of three electors to the smallest states, somewhat boosting their prospects.

Electors could not be holders of a federal office. Each elector would have two votes for President.  One of those votes had to be for a person not from their state.  The winner of a majority of votes would become president and second place would become Vice President.  If no person wins a majority of the vote or there is a tie, the House of Representatives holds a vote with each state having a single vote. Alexander Hamilton explained the thinking behind this system in an anonymously published article in New York newspapers that became Federalist Paper No. 68. This is what he expected:

1. Choice of the president should reflect the "sense of the people" at a particular time, not the dictates of a faction in a "pre-established body" such as Congress or the State legislatures, and independent of the influence of "foreign powers".^[32]
2. The choice would be made decisively with a "full and fair expression of the public will" but also maintaining "as little opportunity as possible to tumult and disorder".^[33]
3. Individual electors would be elected by citizens on a district-by-district basis. Voting for president would include the widest electorate allowed in each state.^[34]
4. Each presidential elector would exercise independent judgment when voting, deliberating with the most complete information available in a system that over time, tended to bring about a good administration of the laws passed by Congress.^[32]
5. Candidates would not pair together on the same ticket with assumed placements toward each office of president and vice president.
6. The system as designed would rarely produce a winner, thus sending the presidential election to the House of Representatives.

Footnotes are references to the Wikipedia entry. https://en.wikipedia.org/wiki/United_States_Electoral_College

In hindsight, this was all very naïve and the reality of its flaws became immediately evident after George Washington, the only candidate every to receive 100% of the possible electoral votes, announced he would not run for a third term.

Disenfranchisement is Baked into the System

The original system has built into it this aspect that allows states to move all of their electoral votes to one candidate, no matter how divided the popular vote. Even though Hamilton had this expectation that states would apportion or assign electors by district, that was not spelled out for a reason. The disenfranchisement of certain people was quite intentional.  Those people were slaves. In order to balance the power between the Southern slave holding states and the Northern states, slaves were counted for the purpose of apportioning members of the House of Representatives.  Counted, but reduced to 3/5^ths of their actual number.  Slaves were not allowed to vote, but their numbers gave greater power to the slave holding states, including greater electoral votes.  The original Electoral College fully intended for Slave holding states to use their electoral votes allotted because of the slave population to reflect the will of the slave holders.  In this way, we still have the legacy of 48 out of 50 states that can assign electoral votes not by district, but statewide against a large portion of the actual popular vote up to and including a majority of it.

The Election of1800!

The failure of the original Electoral College was that it did not anticipate the way political parties would work. The Federalists nominated John Adams, the incumbent and the Democratic-Republicans formally chose Thomas Jefferson as their Presidential Candidate and Aaron Burr to be the Vic President. North Carolina and Pennsylvania were the only states that split or apportioned electoral votes. John Adams received 65 votes and Jefferson received 73.  Technically every candidate ran for President. In order for a party to choose both their President and Vice President meant that they had to follow a plan to vote at least one less electoral vote for the VP. Each elector had two votes, but somehow Aaron Burr also wound up with73 votes. Some say the party messed up the execution of their plan, but other speculate that Burr hatched a scheme. As a result, the decision went to the House of Representative to decide. The first house vote ended in a tie, as did the next 34 votes.  Hamilton had become a fierce rival of Burr and waged a strong campaign among the House delegation in favor of Jefferson, the nominee of the opposing party. On the 36^th ballot Jefferson won.

Amendment XII

The political maneuverings of the House vote were thought to be unacceptable and unbecoming for the national body to be seen as openly grasping for power. Hamilton in particular had already seen the Electoral College as failing to achieve its intended purpose and began to work toward amending the Constitution before the next election. Hamilton proposed dividing each state into district, roughly proportional to congressional districts and having each district select one elector. Unfortunately, that proposal was rejected.

What the Twelfth Amendment actually did was to have each elector chosen as in the original Constitution but allotted one vote for President and one vote for Vice President. The elector no longer picks more than one party and the idea that the electors deliberate to choose a candidate is abandoned. Moreover, it reinforces the concept that there will only be two major parties. If a candidate fails to receive a majority of electoral votes, only the top three candidates are to be considered by the House. The idea of a runoff is not even possible from the national level. States, it assumes, will implement a system they feel best finds the majority approved candidate. Like the original thinking behind the Electoral College, this does not occur in many states, every election.

The House votes by state, and not proportionally to the population. The Vice President is chosen by the Senate, again, without regard to popular support.

Currently 33 states require electors to vote for the candidate they pledged to support prior to election day. These laws were recently upheld by the Supreme Court. The parties and/or candidates select their electors for their faithfulness thus completely flipping the original idea of the Electoral College on it’s head.  The College is not a body that chooses the President, it is merely a convoluted formula for reworking the popular vote. 

Since 1900 only twice have third party candidates received any electoral votes. In 1912 Theodore Roosevelt left the Republican Party to form the Progressive Party but was still soundly defeated by Woodrow Wilson and George Wallace ran on American Independent Party ticket as a segregationist.

Efforts to change the Electoral College have occurred frequently and despite popular opinion to makes changes, no effort has succeeded since the Twelfth Amendment. Twice proposed amendments have passed in one chamber of Congress only to fail in the other. Today several proposal have gained popularity including reforms that do no need to amend the Constitution. Those ideas will be in Part III.

https://en.wikipedia.org/wiki/United_States_Electoral_College

UPDATING THE ELECTORAL COLLEGE: THE NATIONAL POPULAR VOTE LEGISLATION  http://archive.fairvote.org/media/documents/chang.pdf

https://en.wikipedia.org/wiki/1800_United_States_presidential_election

https://en.wikipedia.org/wiki/Article_Two_of_the_United_States_Constitution#Clause_3:_Electors

The Federalist Papers : No. 68 https://avalon.law.yale.edu/18th_century/fed68.asp

First It Limits Your Choices and Then It Changes Your Vote: How the Electoral College Undermines the Framers Intent and the Republican Form of Government.

 George W. Bush in 2000 and Donald Trump in 2016 won the electoral college with the second highest number of votes, but not for the reason most people think.  The popular idea is that the electoral college give greater weight to smaller, rural states so that large, urbanized states like New York and California cannot dominate presidential elections. While electoral votes are somewhat weighted toward smaller population states, that did not make a difference in 2000 or 2016, or any other recent election for that matter.  In fact, the reason a second place finisher can win the electoral vote without winning the popular vote isn’t even found in the Constitution. And more than that, it has also worked to deny the potentially most popular candidate the popular vote as well.

So, what is the system we have, how did we get it and how should it be reformed? I’ll take that three part question is in, well, these three parts:

Part I

The current system is actually both Constitutional and the law of individual states.  The U.S. Constitution does not grant any right to citizens to vote for the office of President. Rather, it allocates to each state legislature the ability to choose electors by any method they decide.  The number of electors each state has is equal to the number of members of Congress from that state: two Senators and each member of the House of Representatives. House members number exactly 435 and are apportioned roughly by population with no state getting less than one. The District of Columbia, according to the 23^rd Amendment gets the same number of electors as the least populous state, three. That makes 538 electors which makes 270 the magic number of electoral votes needed to win the Presidency. If there is a tie vote, then… well let’s save that for Part II, The Election of 1800!

All 50 states now choose electors by popular vote. Voters never see the names of the electors they are choosing. They only see the Presidential candidate those electors have pledge to vote for.  48 of 50 states award all of their allotted electoral votes by popular vote with the winner being the one with the greatest number of votes no matter how small that percentage is. Maine and Nebraska each have a system that apportions electors between candidates. Because the Constitution specifies a single one day for the election of other federal officials, all states hold their vote for President and Vice President on that date every four years. Then, on the first Monday after December 12 the electors meet at their state's capital to cast their vote.

What if an elector is chosen, but then on the first Monday after December 12 at their state's capital they decide to vote for someone other than the candidate they previously swore to support? This is the so-called faithless elector. In 18 states, they are by law free to do so, but in the other states they may be required to vote for their pledged candidate or possible may vote as they choose, but be required to pay a fine. As a practical matter, electors have remained so faithful that no election has ever been in jeopardy of being changed by faithless electors.

Electoral College Inversions

The most apparent way that the electoral college can fail to reflect a democratically elected president is when the winner of the popular election loses to another candidate who wins the electoral college.  This is sometimes called an “inversion” and it has happened four times 1876, 1888, 2000 and 2016.  In each instance the inversion did not occur because smaller states had greater electoral representation, but because the second most popular candidate won enough states by a only plurality of votes. Take 2016 where Trump won seven states and one congressional district of Nebraska with less than 50% of the total vote. (50%+ votes being divided among Hillary Clinton and other candidates). While a majority of voters in those jurisdictions cast their votes for someone other than Trump, he nevertheless took 100% of the available electoral votes meant to represent those voters. That was a total of 108 electoral votes and it made the difference in his win. This leads to the question; would Trump have won a runoff between himself and Hillary Clinton for those 108 electoral votes? The speculation on this among experts and academics is mixed, nevertheless the question certainly hangs over the Electoral College, is it a democratic process or a system that can be strategically gamed to subvert popular choice.

In the other recent inversion vote outcome, there is no expert or academic doubt that 2000 popular vote winner Al Gore would have won in a runoff without third party candidate, Ralph Nader.  The result of which would no doubt have affected the course our country took in the subsequent four years.

Blocking Out Third-Party Choices

Ralph Nader’s candidacy in 2000 was controversial because voting for Nader instead of Al Gore was said to help Bush win.  Many Nader supporter resented the fact that they were in a sense shamed for voting for the candidate they preferred most.  Others who preferred Nader voted for Gore because they didn’t want to “waste” their vote on a candidate who was sure to lose.  Still others criticized Nader for running in a race where his only influence would be as a “spoiler.” The real problem here is not third party candidate, which should rightly be part of any democratic process, but rather that allowing a plurality of votes to win, sets up a system when third party candidate support cannot be accurately reflected.  In a runoff, where no candidate can win until a 50% winner is achieved, third party candidates are not discouraged to run and their supporters can freely vote for their first choice without fear that they will be unable to vote for their second choice in a later runoff between the top candidates.  This is why no other democracy chooses it top leader with a plurality vote.

President who have won only by virtue of winning the plurality and not the majority of the vote in crucial states is increasingly frequent. 2016 isn’t the most extreme example of where the electoral system has disenfranchised the majority of voters, but it is still fresh in our memory. Bill Clinton won this way over George H.W. Bush and Bob Dole, Ronald Reagan beat Jimmy Carter and Walter Mondale. The reason for this is that the voters are closely divided between the two major parties allowing the presence of a third-party candidate with even single digits in the points to affect the election. The result of the current system is that it does not require the support of a majority of voters to elect the President. We can only speculate that Ralph Nader was the reason Bush became a president and won a second term. The same with John Anderson enabling Reagan and Ross Perot for Bill Clinton. In a country as closely and as deeply divided political as the U.S. is, a President who never achieves the support of a majority of the electorate worsens divisions among the voting population.

The worst example though must be the election of 1844, though not an “inversion,” would have elected Henry Clay over the virulently pro-slavery, pro-Manifest Destiny James Polk. Third party abolitionist James Birney drew votes in New York away from Clay sufficient to give all of that large state’s electoral votes to Polk. Polk clearly did not reflect the direction most Americans wanted to take with the Country resulting in the Mexican American War and as history would show, led us to the Civil War, the most ruinous series of events in our nation’s history.

Coming up, what was the original intent of the Electoral College, the modifications to it, and how we can reform the system even without amending the Constitution?  I’ve avoided footnotes, but here are some highly informative references.  If you have questions about specific points I’ve made, please message me.

Professor Ned Foley on the Electoral College https://equalcitizens.us/professor-ned-foley-on-the-electoral-college/

Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College https://www.amazon.com/Presidential-Elections-Majority-Rule-Jeffersonian/dp/0190060158

https://en.wikipedia.org/wiki/2000_United_States_presidential_election

https://en.wikipedia.org/wiki/2016_United_States_presidential_election

https://www.npr.org/2016/11/02/500112248/how-to-win-the-presidency-with-27-percent-of-the-popular-vote

The Election of 1844 Explained https://www.youtube.com/watch?v=GUZhMWPRt1c

https://www.salon.com/2020/07/18/the-electoral-college-has-a-surprising-vulnerability-_partner/