IN DEFENSE OF THE ELECTORAL COLLEGE
By Rhys M. Blavier
© 2012
“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.”
The Constitution of the United States of America
Article II, Section 1, Clause 2
As America reaches the end of the never-ending 2012 election cycle, the subject of the Electoral College and electoral math arises again, like a phoenix from its own ashes. The Constitution is a collection of compromises and the peculiarity of the American election process evolved from compromises between differing ideas and theories of how to select our “Chief Magistrate”. Mostly, we hear it chastised as, at best, an anachronism designed to obstruct the “will of the people”, as expressed by popular vote and, at worst, an embodiment of contempt of the ideas of popular sovereignty held by the moneyed and landed elites who made up the ruling class via a complicated system which leaves Presidential elections safely in the hands of a secret agency that prevents elections from being decided by the ignorant and fickle “will of the people”, as expressed by popular vote. It is also criticized as a system that allows manipulation to advance specific partisan political goals (such as efforts this cycle by Pennsylvania’s Republican Party) to, yes, obstruct the “will of the people”, as expressed by popular vote.
When any attention is actually focused on the Electoral College, it is frequently seen as a potential weapon by various political partisans to be used against their enemies. Personally, I see it is an inspired stroke of genius which only achieves its highest and most noble purposes in the modern world of mass communication and rapid transit. However, any changes which might be made to the Electoral College would need to be applied uniformly and in a non-partisan manner by all states at the same time in order to achieve it's maximum benefits without it bearing the curse of political expediency and opportunism.
Many of us were taught that the Electoral College was created out of a distrust by the Framers of the choices of the common man which lead them to devise this tool which could be used by those “wiser and more knowledgeable” to counteract any “bad choices” which would arise out of national elections conducted locally. It is seen, in other words, as a way for the Framers to give Americans the illusion of democracy without the actual risks which come with allowing “we the people” to make such an important decision. There is some truth in that belief. Delegate George Mason, the author of Virginia’s Bill of Rights, said:
“… it would be as unnatural to refer the choice of a proper character for chief magistrate to the people as it would to a trial of colors to a blind man.”
While, in the convention debates on July 17 – 19 (The National Executive), James Madison raises the issue of suffrage, as a whole, being different in each state:
“There was one difficulty however of a serious nature attending an immediate choice by the people. The right of suffrage was much more divisive in the Northern than the Southern States; and the latter could have no influence on the score of the Negroes. The substitution of Electors obviated this difficulty and seemed on the whole to be liable to the fewest objections.”
Deeper purposes, however, can be seen in the debates and discussions in those works and debate records now commonly referred to as The Federalist Papers and The Anti-Federalist Papers. The Framers assumed, not unreasonably for their time, that the size of the nation would prevent effective communication and the timely exchange of information necessary to allow all people in all states to know who the greatest statesmen of the nation would be at any given time. Linda R. Monk, in her book The Words We Live By, says:
“Many of the delegates to the Constitutional Convention in 1787 believed that, other than George Washington, a presidential candidate would rarely receive a majority of Electoral Votes. They thought of the Electoral College as a nominating committee and debated intensely whether the House of Representatives or the Senate should select the president when no majority prevailed in the Electoral College. The framers chose the House, but then assigned each state’s delegation an equal vote when selecting the president.*”
[*– This does make some sense as Senators were chosen by the legislators of each state while Representatives are voted into office by the voters of a state, which would imply that the Framers wanted the President to serve “we the people” rather than serve the States.]
In point of fact, there have only been two times in American history when the Electoral College has NOT selected the President; in 1800 (between John Adams, Thomas Jefferson and, as it turned out, Aaron Burr) and 1824 (between John Quincy Adams and Andrew Jackson). Regarding the popular vote of the people, on only five occasions (1824, 1876, 1888, 1960 and 2000) has the winner of the popular vote lost in the Electoral College, while only once has a candidate received an absolute majority of the national popular vote and lost the election because of the Electoral College (Samuel Tilden in 1876).
Keep in mind that today’s “electorate” is very different than what it was in the late-1700s to early-1800s. Deciding who is legally allowed to vote in a state was left up to each state to determine for itself. There was no federal standard. Nor does The Constitution guarantee that the President will be chosen by any type of a popular election. For the most part, until the elections of 1824 and 1828, the electorate consisted of free white males who owned property. The first time the federal government used The Constitution to directly involve itself in establishing any national voter qualification of any kind was in 1868, with the passage of the 14th Amendment (which establishes who are natural-born citizens of The United States):
“1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”
And in 1869 with the addition of the 15th Amendment (which confirmed the right to vote as a right of American citizenship, regardless of any legislation by individual states):
“1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
In 1920, the 19th Amendment extended the right to vote to women:
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”
And the 26th Amendment (1971) further expands the voter base to every citizen who at least 18 years old:
“1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”
So, while the right to vote has been constitutionally extended three times to expand the electorate, neither The Constitution nor any Amendments thereof establish a national baseline of who can and cannot vote. One specific example of this is that the rights of felons to vote vary from state to state depending on the legislation of each state which specifies such criteria. Another electoral issue on which the Constitution is silent includes disagreements about or challenges of which candidates won a particular state’s electoral votes, as happened in the 1876 Presidential election when four states – Oregon, South Carolina, Louisiana, and Florida – had disputed elections. The conflicts were decided by an Election Commission which awarded all contested votes to the Republican Candidate, Rutherford Hayes, even though his Democratic opponent, Samuel Tilden had won an absolute majority of all votes cast nation-wide. Other issues include “faithless Electors”, unpledged Electors, and whether or not state legislatures can chose their own Electors if they don’t like the results of a public election (as Florida’s legislature threatened to do after their 2012 Republican primary).
Going back to The Federalist Papers and The Anti-Federalist Papers, one specific concern is a recurring theme throughout the discussions of the Electoral College – political factions (i.e. – political parties). In those discussions, we can see the deep faith that the Framers placed in the ability of the Electoral College to protect the nation they were creating from the evil they feared most, at least as regards Presidential elections. In Federalist #68, Hamilton wrote:
“The mode of the 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 have appeared in print [Vide Federal Farmer] has even deigned to admit that the election of the President is pretty well guarded.”
And
“Nothing was more desired than that every practicable obstacle should be opposed to CABAL [emphasis added], intrigue and corruption.”
Hamilton then refers to these as the “most deadly adversaries of republican government”.
The fear of “cabals” and their influences on elections is a running theme in the debates and proposals of how to deal with the very important topic of the election of the President. In debate on the Election of the Executive (July 25), Madison said:
“The option before us then lay between an appointment by Electors chosen by the people – and between an immediate appointment by the people. He thought the former mode free from many of the objections which had been urged against it, and greatly preferable to an appointment by the National Legislature. As the Electors would be chosen for the occasion, which would meet once, and proceed immediately to an appointment, there would be very little opportunity for CABAL [emphasis added], or corruption.”
In the debates of September 4, on Election and Powers of the President, the issue of “cabals” was raised frequently.
Gouverneur Moris: “6. The indispensable necessity of making the Executive independent of the Legislature – As the Electors would vote at the same time throughout the U. S. and at so great a distance from each other, the great evil of CABAL [emphasis added] was avoided. It would be impossible to corrupt them.”
Colonel Mason: “confessed that the plan of the Committee had removed some capital objections, particularly the danger of CABAL [emphasis added] and corruption.”
Mr. Butler: “thought the mode not free from objections, but much more so than an election by the Legislature, where as in elective monarchies, CABAL [emphasis added] faction and violence would be sure to prevail.”
Gouverneur Moris: “said the principal advantage aimed at was that of taking away the opportunity for CABAL [emphasis added].”
Mr. Wilson: “He thought the plan on the whole a valuable improvement on the former. It gets rid of one great evil, that of CABAL [emphasis added] and corruption;…”
Mr. Wilson (continued): “The eventual election by the Legislature would not open CABAL [emphasis added] anew, as it would be restrained to certain designated objects of choice,…”
I find the linkage between “cabal” and “corruption” in most references to this “great evil” to be very illuminating as to what the beliefs and fears of the Framers were regarding political factions / parties and the serious dangers that they represented to the nation they dreamed of. Still, all of these points are basically moot as to being operative justifications for our continued use of the Electoral College concept in the selection of our “Chief Magistrate”. For one thing, we do have political parties and, no matter what any of us might think of them, they are not going to go away from American politics, at least not in any kind of a foreseeable future. For another, mass communication in the modern world destroys the idea of groups of people at great distances from one another voting without knowledge or awareness of the debates and results of other groups.
So, why was it important to raise such issues regarding the creation of the Electoral College? Simply put, to establish its legitimacy as a key tool used by the Framers in their quest to try to create “a more perfect union”. The modern irrelevance of such an intention does not lessen its originating purpose of being a way to protect our democratic institutions. It was not some kind of a “bastard child” born of a lack of faith in the ordinary citizens to make good choices or of any desires to “rig” our electoral system in favor of keeping the “elites” in political power at the expense of “we the people”. To the Framers, the Electoral College represented their most fervent and parental desires to protect the nation that they were creating from what they saw as the greatest threat to their ideas of a democratic republic.
Still establishing its past value to the ideas of American democratic republicanism does not provide any justification for its continued use today. This is what brings us to the modern benefits of the Electoral College to the greater goals of The Constitution… fairness to all voters in the election of office holders who best represent “we the people”. How, you might be asking, is it not fair to simply let the majority vote of ALL Americans select our President and Vice-President? It can be best expressed by the phrase “tyranny of the majority”. The concept, if not the actual phrase, goes back to, at least, James Madison, who says, in Federalist #10 of The Federalist Papers:
“Among the advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control THE VIOLENCE OF FACTION [emphasis added]”
And he speaks of:
"… the superior force of an interested and overbearing majority."
The actual phrase, itself, was used by John Adams, in his 1888 book A Defence of the Constitutions of Government of the United States of America and was popularized by Alexis de Tocqueville in his extraordinary book Democracy in America (Chapters 14 and 15) (1835 – 1840). Henry David Thoreau, in his essay Resistance to Civil Government (most commonly referred to as simply Civil Disobedience), says:
“… the practical reason why, when the power is once in the hands of the people, a majority are permitted, and for a long period continue, to rule, is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest. But a government in which the majority rule in all cases cannot be based on justice, even as far as men understand it. Can there not be a government in which majorities do not virtually decide right and wrong, but conscience? — in which majorities decide only those questions to which the rule of expediency is applicable?”
In her article, Inventing the Concurrent Majority: Madison, Calhoun, and the Problem of Majoritarianism in American Political Thought (The Journal of Southern History, Vol. 60, No. 1 [Feb., 1994]), Lacy K Ford, Jr. tells us how John C. Calhoun created the idea of the “concurrent majority” which is when great decisions are not merely a matter of numerical majorities but require agreement or acceptance by the major interests in society, each of which had the power to block federal laws that it feared would seriously infringe on their rights. This means that it is illegitimate for a temporary coalition that had a majority to gang up on and hurt a significant minority. The doctrine is one of limitations on democracy to prevent the tyranny of the majority.
John Dalberg-Acton, 1st Baron Acton (famous for the quote “Power tends to corrupt and absolute power corrupts absolutely.”) gave what might be the best description of the tyranny of the majority when he said:
“The one pervading evil of democracy is the tyranny of the majority, or rather of that party, not always the majority, that succeeds, by force or fraud, in carrying elections.”
America was not created to be a nation in which simply majorities won every debate, every argument, and every election. Contrary to current interpretation, “One man, one vote” is also not an inherent American constitutional concept, as adequately demonstrated by the creation of the Senate as the superior House of Congress, in which each state has an equal number of members, regardless of populations, as well as the provision in Article II, Section 1 of The Constitution that when the House of Representatives votes to determine who will be President, all states have an equal number of votes (i.e. – one vote per state). What the Electoral College does is help prevent the selection of our Executive officers from being subject to the tyranny of the majority while, at the same time, recognizing the importance of vote results. To remove that protection would eventually, in my opinion, fracture what little remains of American national unity as we would break down into pockets of identifiable ethnic, cultural, social and/or economic communities, each fighting for their own petty, parochial, and personal needs, wants and desires.
America is a diverse nation with diverse needs and personalities of populations. Whether it is the teeming millions of urban cities or the scattered thousands in rural, predominantly agricultural areas of many states or even of entire states, America represents many voices and many ideas. Now, if the Presidential election were decided by a simple majority vote, imagine if every registered voter in New York City or Los Angeles worked together and voted en masse for any particular Presidential candidate in a simple majority vote system. It pretty much wouldn’t matter what results were from any other areas of the country, either one of those two cities alone could pretty much determine who would win a popular vote. Now, look at the number of electoral votes in the individual states. Out of 538 votes total, of which 270 are needed for election, the four most populous states alone (California, Texas, New York, and Florida) constitute 53% of those votes.
To put this in a different perspective, according to the 2010 Census, there are nine cities in the United States that have populations of more than one million people. Those cities (New York City, Los Angeles, Chicago, Houston, Philadelphia, Phoenix, San Antonio, San Diego, and Dallas) have a combined population of approximately 23.83 millions**.
[**Please Note: these numbers do NOT count the metroplexes surrounding each of these cities. The greater New York City area alone has a combined population of over 19 million].
If you look at our most recent elections, that number is equal to 34% of Barack Obama’s vote total in 2008 (69.50 million), 38% of George W. Bush’s vote total in 2004 (62.04 million), and 47% of George W. Bush’s vote total in 2000 (50.56 million). There has never been an election in United States history in which the vote totals between the winners and losers has ever been anywhere close to those numbers. If you go back to 1932, that number is higher than the vote total for the winner, Franklin Roosevelt, and more than the second place finisher in any election prior to 1952. High population areas alone could swing elections if they all happen to vote for the same candidate. That is NOT fair or just in America’s representative government.
What the Electoral College does for modern America is ensure that candidates must make broad appeals to wide portions of America. Once a vote total is known for any particular state, it is used to determine the allotted number of electoral votes from that state. It doesn’t matter what else happens; Delaware will still award 3 electoral votes, as will Montana. Even if all of the states with the highest electoral votes went to the same candidate, there would still need to be thirteen states, at a minimum, to put a candidate over the top. On the other side, populations matter a great deal because for a candidate to be elected by the lowest population states, they would need to win at least thirty-eight states; almost 3 times the number as winning through the most populous states.
Basically, what the Electoral College does is prevent any individual state from “piling on” and having an unfair advantage over other states due solely to having a high population. Put another way, the Electoral College is a political torque wrench. Once you reach a state's limit, you can’t do anymore; you can’t get any more out of it. Otherwise, California alone could probably make the difference in who is elected President. How do you think Americans from around the rest of the country would react to that?
Now, consider what happened in Florida in the 2000 election and imagine EVERY state doing such counts and recounts because every candidate will want to wring every single possible vote from every state while, at the same time, deny their opponent(s) as many votes as possible. The courts would have to be involved in every election from every state. As it is now, in most cases, in most states, in most years, such microscopic evaluation is entirely unnecessary. You win 54% of California? Fine, you win California. In a simple majority system, voter fraud could actually become a real problem in America, as opposed to just being a boogeyman used by the Republican Party to try to scare voters.
So, if the argument that there is modern value for the Electoral College is accepted, does that mean that it now serves the needs of the American electorate in the best manner possible and, if not, can it be improved? Personally, I would answer “no” on the former question and “yes” to the latter. Speaking only from my own political theories, what changes would I make?
The current methods of allocating the electoral votes from any given state are left up to that state’s legislature to determine. There is no uniform, national standard for this. Excepting Nebraska and Maine, all states, and the District of Columbia, allocate their electoral votes on a “winner takes all” basis. Nebraska and Maine, on the other hand, allocate their electoral votes by a “congressional district” method. Under the system used by them, whoever wins in a particular congressional district wins the electoral vote of that district, while the two votes for their Senate representation are both awarded to whoever gets the majority of votes in the state, as a whole. A huge problem here is that any state is free to manipulate its electoral vote allocations at anytime in ways which might benefit a particular political party or individual candidate. The possibility of such a situation has even been raised this election cycle by Pennsylvanian Republicans who seriously considered changing from a “winner takes all” system to a “congressional district” system as a way to benefit a Republican nominee at the expense of a Democratic incumbent. All Americans, in whichever state that they live, deserve to have their votes tallied uniformly across the country.
We should consider WHY a “winner takes all” system is popular with almost all state legislatures. Its importance can be expressed in one word… power. Each state wants to have as large an impact in the selection of a President as possible. That power is seen as being best exerted by each candidate HAVING to work in a particular state to win its votes. This especially gives the larger states “negotiating” power with candidates to extract promises from them which would work to a particular state’s advantage. Acton’s adage “Power corrupts, and absolute power corrupts absolutely” is very applicable to this kind of a system.
The problem with this is that it serves to DISCOURAGE candidates from spending time in or making efforts in either those states that they have no chance of winning or the ones that they are so far ahead in that they can depend on winning it. This is why so much time and resources are focused by candidates on “swing states”, no matter how few elector votes they might have. As such, those who would vote for a candidate other than the one who ends up winning their state are effectively being disenfranchised. Personally, as a resident of Texas who is a liberal, my vote doesn’t matter because Texas is going to be won by whomever the Republican candidate is. A Republican voter has the same problem if they live in a Democratic state. What kind of message does that send to those of us who care about our government and who make the effort to vote in every or, at least, most elections?
So, how can the Electoral College be reformed to best express the will of the American voters? First, take away the power of each state to determine for itself how it will allocate its electoral votes so as to allow all voters in all states equal chances to determine who gets to be President. This would best be done using the basic idea of the “congressional district” allocation method but refining it to improve its performance and fairness.
Just to remind you, EVERY state is allocated a specific number of Electors; those numbers being equal to the number of Senators (always 2 for each state) AND the number of current Representatives (with a range between 1 and 53) a state is entitled to. So, every state has AT LEAST 3 Electors (2 for their Senators and 1 for their Representative). Counting the District of Columbia, there are a total of 538 Electors in the Electoral College, with 270 electoral votes necessary to win the election.
The “congressional district” allocation system is straight forward; whichever candidate gets the most votes in a congressional district would win the single electoral vote for that district. By this system, the candidate who wins the most votes in a particular congressional district would earn the electoral vote which represents the voters in that district. The change that I would suggest would be how the two “Senatorial” electoral votes would be allocated.
Regardless of who receives the most votes in a state, there are always voters who support the candidate who comes in second. This is where fighting the “tyranny of the majority” comes in. Just as Senators represent the people of their state, as a whole, in Congress (in effect, their “districts” are their entire state), the “Senatorial” electoral votes can also be used to represent ALL of a state’s voters in the Electoral College. All that would have to be done to accomplish this would be to recognize and take into account the fact that those voters in any state who did not vote for the majority candidate also have the right to be represented when the Electoral College chooses our Presidents.
To illustrate how this would work, consider, as one example, a state with only three electoral votes. One vote will be allocated to whoever wins the most votes in their one congressional district (the whole state), which makes up 1/3 of their electoral vote total. Now, obviously, the winner of the single congressional district would also be the candidate who received the most votes in that state and so that candidate would automatically win one of the “Senatorial” electoral votes, which makes up another 1/3 of their state’s electoral votes. The new idea would be how the third electoral vote would be allocated. The OTHER “Senatorial” electoral vote would be awarded in consideration of the MINORITY of voters in that state. If the candidate who wins a state, as a whole, receives 67% or more of that state's popular vote, (i.e. – 2/3 of the vote total) then they will also be allocated the third and final of that state’s electoral votes. If, on the other hand, the winning candidate wins by just a simple majority (51% - 66%) or even a plurality (less than 50%), of the total popular vote, the third electoral vote would be allocated to the candidate who comes in second in the balloting.
In a state with more than three electoral votes, awarding the second “Senatorial” electoral vote would be determined by the overall popular vote total within that state, not on who wins a majority of the congressional districts. There are a few reasons for this, but the most glaringly obvious reason is “Who would win in a state with an even number of congressional districts if the two candidates each win half of those districts?”
In a simple analysis, this method would meet the requirements of fair distribution of electoral votes, between those voters who support the candidate who wins in their state and those who support another candidate. A deeper analysis, however, would come up with more complex factors. The primary factor, as I see it, is that candidates would have to change their reliance on simple electoral math. This is not to say, however, that changes such as these would eliminate electoral math, just that it would make it less predictable and would focus primarily on specific parts of states, with the additional goal of forcing candidates to fight for enough votes in a state to either win both of that state's Senatorial electoral votes or to prevent a candidate from winning both Senatorial electoral votes. Think of it as changing electoral math from simple arithmetic to more complex calculus.
As it is now, candidates generally devote their resources and time to only those states in which the results might be in doubt, ignoring or spending little time in both states that they will clearly lose AND states that they will clearly win. If changed, as suggested here, each candidate would have to make their determinations of resource and time allocation by the possibilities and needs of individual congressional districts. Further, all candidates will have reasons to focus at least some efforts on ALL congressional districts in every state because if they can simply keep the other candidate from winning 67% or more in a state, they can still get one electoral vote from some of the states in which they lose the overall vote.
This is not to say, however, that changes such as these would eliminate electoral math, just that it would make it less predictable and would focus primarily on specific parts of states, with the additional goal of forcing candidates to fight for enough votes in a state to either win both of that state's Senatorial electoral votes or to prevent a candidate from winning both Senatorial electoral votes.
Americans are, in general, a “baby and the bathwater” kind of people. If we see something as “good” then we are in favor of it seemingly without question. If we see something as “bad” then there is absolutely nothing about it to be considered. We don’t do well with “shades of grey”… good or bad, right or left, conservative or liberal, and so on. Discussions about the Electoral College tend to follow this model, as well. Either the system should be left alone to function (or dysfunction) as it always has or it should be scrapped completely. I have spoken before of Justice Louis Brandies’ concept of the “laboratory of democracy”. I see the Electoral College as one of many experiments in that laboratory, as an experiment that has not yet run its course.
American democracy was not a perfect creation in 1787. The men who wrote The Constitution and the people who discussed it at the time had no real examples to go by, just some political theory and personal insight. They never intended The Constitution as they passed it in 1787 to be unchanged throughout time; they planned for it to be changed as and when necessary. After 225 years, we should have learned a lot about practical democracy… both positive and negative. The Framers depended on us and the only way that we can let them down is if we fail to understand those learned lessons. Let’s show that we have learned or are, at least, willing to learn how to improve their system for electing the most powerful national leader in the world… the President of the United States.
'Truth, Justice and Honor... but above all Honor'
(for you can have truth without justice or honor,
you can have justice without truth or honor,
but you cannot have honor without truth and justice)
