“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.
