“Every word of the Constitution ultimately decides a question between power and liberty.”-- James Madison
The Founding Fathers would more than likely be surprised by the current controversy over the Electoral College provisions of the Constitution. Indeed, it was one of the least controversial provisions of the new compact during the divisive debate for ratification. According to Alexander Hamilton writing in the Federalist Papers, “The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded. I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.”
Although it was evident following the election of 1800 that the system needed to be fine-tuned, once the Twelfth Amendment was passed, the structure of the Electoral College was not a matter of serious debate for more than a century—during which the nation suffered through the traumas of the fiercely contested elections of 1824, 1876, 1888 to say nothing of the bitter strife of the War Between the States.
It was only the sudden explosive growth of urban America, the precipitous decline of rural populations, and the shifting political influence brought on by the opening of the West and the restoration of the South that the question was seriously raised—though the debate hardly raised a hue and cry.
But then the election contest of 2000 thrust the issue before the American people like never before. Vice President Al Gore, the Democratic candidate, actually won a slim plurality of the popular vote. Nevertheless, Governor George Bush, the Republican candidate, secured a slight advantage in the Electoral College—thus winning the presidency. As a result, outraged calls for the abolition of the Constitutional system of election have become commonplace in both the corridors of power in Washington and in the national media outlets. Concerned that “the will of the people” has somehow been “ignored by an archaic system” that “fails to weigh every vote fairly and equally,” these critics have demanded that the College be “scrapped for a more direct election process.”
According to one long-time critic of the system, Senator Birch Bayh, “the true sentiments of the voters are distorted by the winner-take-all system.” In addition, he argues that “population and voter turnout are not accurately reflected. A candidate receiving a plurality of the popular vote in a state whether the margin is one vote or one million carries all the electoral votes of that state, and thus, in effect the minority is disfranchised at an intermediate stage of the electoral process. The winner-take-all system is largely responsible for the possibility of a candidate's being elected president even though he or she polls fewer popular votes than the opponent. Should a candidate receive a minority of the popular vote nationally but carry a sufficient number of states to ensure a majority of the electoral votes, the candidate would be elected, and the will of the majority would be frustrated through the legal and normal operation of the electoral college.”
Rather than voting in a direct popular election, U.S. citizens in each state technically choose between slates of electors that represent each party. Taken together, the winning electors form the Electoral College. There are 538 electors, with each state getting one elector for each representative and senator it has (there are three more electors for the District of Columbia). The electors meet after the November popular election to cast their votes and officially elect the president.
The Framers of the Constitution preferred the electoral system to a direct popular election for several reasons. First of all, Alexander Hamilton asserted, “It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men chosen by the people for the special purpose, and at the particular conjuncture.” Secondly, though, he argued, “It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.” In addition, requiring a candidate to win a majority in the Electoral College was a way of obtaining a national consensus—as Hamilton said, “It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief.”
But critics of the Electoral College system say its chief fault is that a president can be elected without winning a majority of the popular vote. In fact, a president with a minority of the popular vote has won the Electoral College vote 15 times in U.S. history, most recently in 1992 and 1996, when Clinton won only 43 percent and 49 percent of the popular vote respectively. The critics argue that the Electoral College also tends to over-represent voters in rural states. In 1988, the seven least populous jurisdictions (including the District of Columbia) had 21 electoral votes, the same as Florida. But Florida's population was three times the combined population of those seven jurisdictions.
Perhaps more ominously, critics also argue that because the Constitution allows electors to use their discretion, there is a possibility of a "faithless" elector not casting his vote for the people's choice but for his own preference. However, this has only happened seven times and never had a real effect on the outcome of an election. Electors now are usually pledged to support a party's candidate.
And worst of all, the critics say, each state's electoral votes are awarded on a winner-take-all basis in the Constitutional system. This makes it extremely difficult for third-party or independent candidates to win any votes in the Electoral College. In fact, by concentrating support in certain states, a candidate can take the presidency without winning more popular votes than his opponent. In 1876, Republican Rutherford B. Hayes lost the popular vote by several percentage points but still won the Electoral College vote over Samuel Tilden of New York. Indeed, as the state's representatives are apportioned according to the 1990 census, a candidate only needs to win 11 of the most heavily populated of the 50 states in order to take the presidency—California, Texas, Florida, New York, Ohio, Pennsylvania, Illinois, Michigan, New Jersey, North Carolina and either Georgia or Virginia. If a candidate wins a slim majority in California and grabs its 54 electoral votes, he is fully one-fifth of the way to the 270 electoral votes needed to capture the presidency. Thus while California is the nation's most populous state, accounting for 11 percent of the U.S. population, its electoral votes are an even greater prize—20 percent of the necessary votes.
So what exactly is the value of the Electoral College? How are the critics of the Constitutional provisions to be adequately answered? Should the current movement for substantial electoral reform be countenanced at all?
The essential philosophical and structural framework within which the Founding Fathers constructed their innovative scheme of national checks and balances, separation of powers, and mixed government was state confederation—or federalism. The principle of federalism allows distinctive and individual communities to join together for a greater good without losing their essential distinctiveness and individuality. Instead of the states becoming a part of some larger amorphous union, under federalism they are able to unite in a symbiotic fashion so that the sum of their parts is greater than that of the whole. A federal relationship is a kind of compact or covenant that allows states to bind themselves together substantially without entirely subsuming their sundry identities. The federal nature of the American Constitutional covenant enables the nation to function as a republic—thus specifically avoiding the dangers of a pure democracy. Republics exercise governmental authority through mediating representatives under the rule of law. Pure democracies on the other hand exercise governmental authority through the imposition of the will of the majority without regard for the concerns of any minority—thus allowing law to be subject to the whims, fashions, and fancies of men. The Founders designed federal system of the United States so that the nation could be, as John Adams described it, a "government of law, not of men."
The Founders thus expressly and explicitly rejected the idea of a pure democracy, because as James Madison declared "democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths." The rule of the majority does not always respect the rule of law, and is as turbulent as the caprices of political correctness. Indeed, history has proven all too often that democracy is particularly susceptible to the urges and impulses of mobocracy.
Federalism balances the vertical and horizontal aspects of a covenant. Vertically, Americans are one people under the rule of common law. Horizontally though, Americans are differentiated into a number of distinctive communities--sovereign states--protected from the possible intrusions of the national government or from a majority of the other communities. As educator Paul Jehle has argued, “The nature of federalism is seen in the balanced structure of the states and the people throughout the Constitution. Both the national government and State governments are sovereign in their respective spheres. Our national identity as Americans, and our federal identity as state citizens, are both represented in Congress—in the Senate and House.”
The Electoral College was originally designed by the Founding Fathers as a federal hedge against the domination of the absolute national majority over the individual states—indeed, without the College, the delicate federal balance between national unity and regional distinctiveness would be lost and the various states would lose their much of their power over the executive branch.
The Electoral College was thus designed to be a method of indirect but popular election of the President of the United States. The Framers of the Constitution were careful to follow clear principle in this design—it was hardly a matter of haphazardness or convenience. They wanted a federal means to elect the Chief Magistrate of the nation so that careful and calm deliberation would lead to the selection of the best-qualified candidate.
Thus, voters in each state actually cast a vote for a block of electors who are pledged to vote for a particular candidate. These electors, in turn, vote for the presidential candidate. The number of electors for each state equals its Congressional representation. After Election Day, on the first Monday after the second Wednesday in December, these electors assemble in their state capitals, cast their ballots, and officially select the next President of the United States. The candidate who receives the most votes in a state at the general election will generally be the candidate for whom the electors later cast their votes--the candidate who wins in a state is awarded all of that state’s Electoral College votes with only Maine and Nebraska as exceptions to this winner-take-all rule.
The votes of the electors are then sent to Congress where the President of the Senate opens the certificates, and counts the votes. This takes place on January 6, unless that date falls on a Sunday. In that case, the votes are counted on the next day. An absolute majority is necessary to prevail in the presidential and the vice presidential elections, that is, half the total plus one electoral vote is required. Thus, with 538 Electors, a candidate must receive at least 270 votes to be elected to the office of President or Vice President. Should no presidential candidate receive an absolute majority, the House of Representatives determines who the next president will be. Each state may cast one vote and an absolute majority is needed to win. Similarly, the Senate decides who the next Vice President will be if there is no absolute majority after the Electoral College vote.
This federal design ultimately means that the Electoral College is a hedge of protection against several deleterious aspects of pure numerical democracy:
Direct popular election of the President was rejected by the Framers because it failed to protect the states from the intrusion of massed centralized forces. They reasoned that a pure democracy was more easily corrupted than a federal republic. It would essentially eliminate state borders and state prerogative, and whenever more centralized government directly governs the people, they thought that there was likely to be more opportunity for corruption. And electing the President by the Legislative or Judicial branches would violate the separation of powers. Thus, the federal solution was to elect the President by a balanced representation of the States and the people. Electors, independent from either the states or the national government, were elected in accordance with standards established by the State legislatures, and the electors then elected the President. This federal approach carefully avoided direct dependency upon either the states or the people, but kept both represented in the process. Giving each State the number of electors as they have representatives in Congress was also in harmony with this balance.
Direct popular election of the President was also rejected by the Framers because it would fail to prevent several prevent a candidate from pandering to one region, or running up their votes in certain states. Political scientist James Whitson, using a sports analogy of, explains, “In a baseball season you don't play 100 odd games, add up your total runs from all those games, and the teams with the most play in the World Series. Teams would just run up the score on weaker teams to balance the closer games against tougher opponents. In a direct election, Democrats would run up the vote totals in safe states like Massachusetts and Republicans would run up their votes in states like Nebraska. The Electoral College forces candidates to concede states their opponents are winning handily and contest the tight races.” Direct popular election of the President was also rejected by the Framers because it would fail to protect minority interests from a tyrannical majority. For example in a direct election, since African-Americans account for about 13% of the population, they could only account for 13% of the vote. In the Electoral College, African-Americans account for 25% of Alabama's 9 votes, 27% of Georgia's 13 votes, 31% of Louisiana's 9 votes, etc. Farmers, once a very influential constituency, now make up less than 4% of the population. Why would a candidate worry about this small group in a direct election? In the Electoral College system, farmers do make up sizable parts of several states, and thus their combined strength in a smaller pool of voters gives them more power. Because minority groups are often concentrated in some states and not spread evenly throughout the country, their influence is protected to a greater degree in a federal system.
Finally, direct popular election of the President was also rejected by the Framers because it would fail to prevent candidates from ignoring smaller states in favor of big metropolitan areas. In a direct election, New York City would have about twice the electoral clout of the states of Alaska, Delaware, Montana, North Dakota, Vermont, and Wyoming combined. Why would a candidate even campaign in those six states when he can double his impact by spending more time and less money in a single city. The needs and issues of small rural communities would be outweighed in the candidates' mind by those of large urban areas.
The Electoral College system was thus the careful implementation of an essential Constitutional principle: federalism. Without it, the genius of the whole Constitution would be jeopardized.