The Electoral College: What Were Those Guys Thinking?

Steven Dutch, Natural and Applied Sciences, Universityof Wisconsin - Green Bay
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Hey kids, do you know what time it is? It's 2008 2012 2016! Yes, it's time for our great national quadrennial agonizing over the Electoral College. My purpose here isn't to argue for or against it so much as try to explain why we have it. There doesn't seem to be a whole lot on this subject. There's lots on how it works and what's right or wrong with it, but very little on why the system was chosen in the first place. The title of this page is to be taken literally: what were the framers of the Constitution thinking when they designed this system? We can begin by tackling one of the most pervasive misconceptions about the Constitution.

The Constitution Did Not Create a Democracy

The word "democracy" appears nowhere in the Constitution. Instead, the Constitution requires that the States be guaranteed a republican form of government. A republic is a government where decisions are made by elected representatives rather than direct vote. Wholly apart from the mechanical difficulty of holding popular votes on national legislation 200 years ago, a republican form of government seeks to have decisions made by people who have the time and intelligence to make informed choices. Meh. So how's that been working?

A republic need not be democratic. The Venetian Republic of the Renaissance wasn't. The representatives were selected by the wealthy class, and they'd better act as their backers wished, because nobody was better at back-stabbing, figuratively and literally, than the Venetian elite. The Soviet Union styled itself a union of republics, and it was, in the sense that laws were debated by representatives, but the representatives were chosen by the Communist Party and rubber stamped by the voters, and it wasn't democratic. All of the "democratic" nations of the world, including the U.S., are actually democratic republics.

(Actually, it's hard to have a pure democracy in anything bigger than a model railroad club or small village. The mechanics of getting enough people together every time there's an important decision to be made are just too daunting. So "democratic" countries will almost invariably be democratic republics, and it's understandable why people might not appreciate the distinction. But it is an important one, and critical to making sense of the Electoral College.)

The Founding Fathers didn't trust anybody with absolute power, so just about every decision-making function in the Constitution is either divided into multiple steps that have to be performed by different bodies, or is split among parallel structures. So laws have to be passed by Congress but signed by the President. The President nominates Supreme Court justices, but they have to be approved by Congress. There are virtually no one-shot decisions of any consequence. The one exception is that Congress has the power to set its own rules. 'Nuff said?

Congress is the type example of parallel decision making structures. One house is elected directly by the people and is proportional to population. The other was originally appointed by the state legislatures (until the 17th Amendment in 1913) and gives the states equal representation. So one house is democratic, the other allowed the states to decide how to select members. The two different modes of apportionment balanced the interests of large and small states and balanced direct popular vote against representative vote.

How The Electoral System Works

Here's what the Constitution specifies:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. (Art. II Sec. I)

The Electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;

The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President.

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. (Amendment XII, adopted 1804)

Note that there is no mention of an Electoral College. The word "college" appears nowhere in the Constitution (gotta love the Internet - it isso easy to check things like that). The key points:

Only three times has an election gone to the House of Representatives:

Why Electors?

So how to choose a chief executive? The British parliamentary system was for Parliament to select the chief executive, but allowing Congress to select the President seemed to open the door to too many inside deals, plus the President would owe his job to Congress and be less able to act as a check on Congressional power. Simple popular vote was suspect because it was considered too likely that a demagogue might sway public opinion. In keeping with the split powers everywhere else in the Constitution, it probably seemed best to have a popular voice in the process, but filtered by intermediate steps. So let the states pick the President, but by a different route than their representatives in Congress. The states would appoint special officers to elect the President. These officers had to be unconnected with any Federal office themselves so they would not be able to strike deals with a candidate. If the states opted to let the voters choose the electors, that was their decision, and many did. Others did not. The last state to do away with state appointed electors was South Carolina, just before the Civil War.

So, if there was a strong popular sentiment for a candidate, and the candidate was a rational choice, the states could either accept the popular vote or appoint electors that held the same sentiments. In principle, a state's voters could lean strongly toward one candidate and the legislature could choose electors to vote the opposite way. If they did, however, they might pay for it in the next election. More likely the state would already have a legislature that reflected the popular sentiments in the Presidential election. If the candidate was a demagogue, the legislature could intervene and select electors to vote for someone else. Considering all the safeguards, it was more likely than not that the electors would end up reflecting the popular will. And of course many states allowed the voters to make the choice from the outset.

There was one final safeguard. If the field was too split, or there was a tie, the House of Representatives would make the decision. At least some writers have speculated that the hope was that the House would be the usual arbiter. If there was a clear national consensus, the electors would determine the outcome, but otherwise the House would do it. This only happened twice, in 1800 and 1824, and it was not as smooth or harmonious as the Founding Fathers may have pictured. (It happened a third time, in 1876, when electoral votes in several states were disputed, but by then the Electoral College functioned in pretty much its modern mode)

The Constitution never envisioned the voters electing the President. The states, not the voters, elect the President. The states could, and eventually all did, decide to delegate that authority to the voters, but that was the states' choice. A lot of the mystery around the Electoral College disappears once we realize the states elect the President. Contrary to many attempts to explain the system, voters do not choose electors except as a means of casting their state's vote. I, as a citizen of Wisconsin, vote to choose how Wisconsin will cast its votes. A citizen of Massachusetts or New Mexico has nothing to say about how Wisconsin votes, and I have nothing to say about how their states vote.

Note that, in keeping with the notion that the states elect the President, that if the election goes to the House, the States vote as States. Each State gets one vote.

Why Not Democracy?

Democracy wasn't a highly thought of concept in 1789. It smacked a lot of mob rule and sway by demagogues. Nothing in the Constitution forbids it, but nothing requires it, either. The obvious way to avoid the perils of excessively volatile democracy is to limit the vote to people who had a vested interest in stability. Thus a lot of states had property requirements for voting, imposed poll taxes, or applied literacy tests. New Jersey was the first state to grant the vote to women and blacks although there was still a property requirement, but the right was rescinded in 1807. Wyoming became the first territory, and later, state, to grant women the vote permanently.

As time went by and we learned that states with direct voter selection of electors and broad suffrage didn't descend into anarchy, more and more processes were democratized. The Progressive Era introduced direct democratic innovations like the recall, initiative, and referendum (ironically, Wisconsin, a state that prides itself on its Progressive roots, lacks any provision for a voter initiative). In 1913, the 17th Amendment provided for direct election of voters. Some right-wing blog sites complain that the 17th Amendment deprives the States of their last direct control over Congress, but as usual they are unaware of history. By the start of the 20th century, the full range of problems with state appointment of senators had become apparent. If you think the rich have too much influence now, imagine what it was like when robber barons could buy a senator (maybe that's what the right-wing bloggers like about it). Senators would frequently be repudiated by incoming state governments, creating conflicts over which Senator should be seated. And on a number of occasions, states went without Senators because the legislature was deadlocked. A number of states had already put the election of Senators to referenda and confirmed the winner, so it took only 11 months to ratify the 17h Amendment.

Thanks to the Progressive Era reforms, there is more direct democracy in the U.S. than many other democratic republics. Ironically, the biggest reversals of democracy happen when the courts overturn initiative or referendum results. An interesting end run around democracy was the 21st Amendment that repealed Prohibition. It is the only Amendment to stipulate ratification by stateconventions, which were considered more likely to ratify than legislatures, since they would be more protected against voter retaliation from hard core prohibitionists.

Since the Constitution gives carte blanche to the states to select electors, it's perfectly Constitutional for states to apportion their electors according to the state or even national vote, rather than winner-take-all. In principle, it would also be constitutional for States to resume direct legislative selection of electors, though it would be interesting to see how the courts coped with it. It's not wholly inconceivable that a state controlled by one party might designate electors in defiance of the popular vote, although that would be the political equivalent of launching a nuclear war.

It's a bit like the World Series. If the scores are 11-0, 12-1, 9-2, 0-4, 1-3, 2-6, and 0-5, one team has 34 runs and the other has 21, yet the other team has 4 games to the first team's 3. So the second team wins the World Series, even with fewer runs.

Florida, 2000

The most recent wave of outrage over the Electoral College came in 2000, when George Bush narrowly won Florida, and the election, from Al Gore, even though Gore received half a million more popular votes nationally. The Florida recount process was finally terminated on December 11 by the Supreme Court, partly on 14th Amendment grounds (uneven treatment of recounts) and partly on Electoral College issues. Federal Law states that electors selected more than six days before the scheduled counting of electoral votes are to be regarded as conclusively chosen. Since the electoral votes were to be counted on December 18, electors could be selected without challenge up to December 12, the day after the ruling. The court ruled that there was insufficient time to perform the desired recounts and select electors in a way that would preserve Florida's right to choose them without Congressional interference.

Critics of the ruling ignore the Constitutional fact that the Constitution gives state legislators, and nobody else, the right to decide on electors ("in such Manner as the Legislature thereof may direct"). So, had the Court not cut off the process, one of three things could have happened:

  1. Florida would have sent in last-minute, disputed electoral votes. Congress would have had to resolve the issue, and both houses of Congress were controlled by Republicans, so Bush would probably have won. 1876 deja vu all over again.
  2. Florida would have cast no electoral votes, giving the election to Gore. Very unlikely given that the Florida legislature was controlled by Republicans.
  3. Florida could have convened an emergency legislative session and appointed a slate of electors in time to meet the deadline, or they could simply have confirmed the Republican electors. Either way the Florida electors would have been Republican.

Actually, when Congress convened, a number of Congressmen did challenge the Florida electoral votes. However, challenges to electoral votes have to be co-sponsored by a Congressman and a Senator (a rule drafted in the aftermath of 1876), and no Senators came forward.

Although the Supreme Court's ruling has been called blatantly political and corrupt by Gore supporters, it is interesting to speculate what might have happened had the Court ruled that the recounts should continue. Faced with the prospect of missing the deadline for choosing electors, might the Florida Legislature have simply appointed electors and then defended its actions on the Constitutional grounds that the State chooses the electors "in such Manner as the Legislature thereof may direct"? Who would have decided the case, given that the Supreme Court would have had a conflict of interest? What if the Democrats in the Florida Legislature stalled the selection until too late? If the electors had been challenged, the Republicans controlled Congress and could have rejected the challenge. Had the election gone to the House, the Republicans were in control, so Bush would have won, 28 states to 17, with 4 split and one independent.

Oh, this cheerful note. If the House had, through some arcane fluke, deadlocked, then the Senate would have named the Vice President as acting President. Say it with me: President Cheney.

There's just not a plausible scenario that would have allowed Gore to win.

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Created Created 30 April 2008;  Last Update 24 May, 2020

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