The Framers of the Constitution and the Electoral College

As we approach the next presidential election cycle, it may be worth exploring the birth and evolution of the electoral college. No other nation uses such an unusual methodology for electing its chief executive officer, and there have certainly been times when the results from the electoral college have not been consistent with democracy. A review of the decisions made at the Constitutional Convention of 1787 can illuminate the problems which the Framers of the document had in creating a method for electing the President.

The Convention had spent much time attempting to design an executive that would not be a replicate of the English king while ensuring that the office would have sufficient power to be independent of the legislature. The final decision to use the electoral college as the method to elect the president came near the end of the Convention, although the concept had been introduced much earlier. Later in life, Madison indicated that the method of electing the president “was not exempt from a degree of the hurrying influence produced by fatigue and impatience…”[i] In addition to the restlessness of the delegates, two other factors contributed to the creation of the Electoral College. One was the Framers’ views of political parties, and the second was the lack of any acceptable alternatives.

 

Why the Electoral College? – The Problem of Parties

Part of the Framers’ hesitancy about having the people directly elect the president came from their concern that no candidate would receive a majority. They could not foresee the role that political parties would play in the future, and many of them opposed parties. Jefferson, in a 1789 letter, had written: “If I could not go to heaven but with a party, I would not go there at all.” Adams, likewise, had written in 1789 that, “there is nothing which I dread as much as a division of the republic into two great parties, each arranged under its leader, and concerting measures in opposition to each other.” While neither man had attended the Convention, many of the delegates shared their perspective. Madison’s theory of republican government included the fear of factions and the need to control them. While today we view a faction as a splinter group within a political party, the founders used the terms faction and party interchangeably, and considered all parties to have a narrow agenda that only benefitted the members of the group. Washington was opposed to political parties during his entire eight-year term as president, and warned the nation of the dangers of parties in his farewell address, when he talked of “the baneful effects of the spirit of party generally.”[ii]

The founders’ anti-party perspective grew out of their sense that parties acted out of a narrow sense of their own interests or ideology, and as such, did not serve the public interest. This is what Washington referred to in his farewell address when he stated that parties “serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party.” Yet the founders also resigned themselves to the fact, as Madison wrote in Federalist No. 10, that “the latent causes of faction are…sown in the nature of man,” that they were the price of living in a free society. Adams too believed that “All countries under the sun must have parties. The great secret is to control them.” Part of the objective of the constitutional arrangements that the Framers were designing at the Convention was to control the deleterious effects of parties.[iii]

What the founders had difficulty seeing was the positive role of political parties in a democratic system, especially one built on divided power and checks and balances. For such a system to work, parties would ultimately need to play a key role in organizing the will of the majority, creating a legitimate opposition, and tying the president and legislature together to accomplish public policy objectives and pass laws. According to historian Richard Hofstadler, the Convention ”had framed a Constitution which, among its other ends, was meant to control and counteract parties, and yet they gradually began to realize that they could not govern under it without the help of such organizations…the new Constitution which they had so ingeniously drawn up could never have [worked] if some of its vital deficiencies, not the least the link between the executive and legislature, had not been remedied by the political parties.”[iv]

The founders would eventually realize that parties were more than just a necessary evil, that they could indeed be a force of good in a free society, a way to “organize social conflict and political debate.” Madison’s views on party would evolve over time, as Robert Dahl has noted. In 1787, Madison was primarily concerned with the protection of minority rights from the threat of overbearing majorities. By the 1790s, he began to see that the real problem was the threat of minority factions. Dahl argues that Madison began to see the need for organized political parties as a way to protect the rights, liberties, and entitlements of the majority from minority factions. Madison and Jefferson would form a national political party, the Republicans (not to be confused with the modern Republican Party), that would later be called the Democratic-Republicans, and ultimately, under Andrew Jackson, would become simply the Democrats. Both Madison and Jefferson believed that the only way to combat the policies of Hamilton and the Federalists in the 1790s was to organize a political party that could command the loyalty of a majority of citizens. Each future president would ultimately become not only the nation’s political leader, but also the leader of a party whose membership extended to the Congress and the people.[v]

Why the Electoral College? – Lack of Alternatives

“The United States came within a hair’s breath of adopting a kind of parliamentary system,” writes Robert Dahl. Under such a system, as is found in Great Britain and many other countries in the world, the legislature elects the executive, who is usually a member of the legislative body. The executive, often called a prime minister, is also the head of the party with a majority in the legislature, and he or she forms a government. In a parliamentary system, the legislative and executive branches are more fully tied together. The Virginia Plan had proposed that the legislature elect the executive, and the Convention voted numerous times for this proposal. Yet, the Framers feared that the president would be too weak, a creature of the legislative branch, and so they moved toward the electoral college alternative, almost out of a sense of desperation, since they knew of no other alternatives. “Had Britain progressed further toward the norms of cabinet government and strong party connections between executive and legislature that emerged in the next century, the framers might have reasoned differently about the political dimensions of executive appointment and leadership,” Jack Rakove has written. But at the time the Framers were drafting the Constitution, the British parliamentary model did not yet exist.[vi]

After ratification, one major flaw became apparent in the electoral college system. The Constitution called for each elector to cast ballots for two people, as a means to compel electors to cast a vote for at least one candidate who was not from the elector’s home state. In this way, they hoped candidates with national credentials would emerge. Once political parties began to form, the candidates for president and vice president could end up in a tie vote, throwing the election to the House. This occurred in the election of 1800, when the Republicans nominated Jefferson and Burr to run as a ticket for president and vice president respectively. President Adams stood for election as the Federalist candidate. Both Jefferson and Burr ended up with seventy-three electoral votes, and it took thirty-six ballots before Jefferson emerged as the winner in the House. The Twelfth Amendment eventually fixed this problem by eliminating the requirement for double balloting and allowing for a separate vote for president and vice president.

Gradually, the American system for choosing a president through the electoral college would become more grounded in the popular will. The Framers’ chief fear that no national candidates would emerge, or that none would receive a majority, proved false, largely due to the formation of political parties. Abraham Baldwin of Georgia, a little-known delegate to the Convention who was generally silent during the debates, had predicted that “the increasing intercourse among the people of the states, would render important characters less and less unknown.” Wilson agreed, believing that “continental characters will multiply as we more and more coalesce.”[vii]

Over time, states would change their rules so the electors would vote for the candidate that won the popular vote. When Jefferson was elected president in 1800, electors were chosen by the state legislatures in ten of the eighteen states. By the time of Andrew Jackson’s election in 1832, only one state (South Carolina) had the legislature select the electors. The rest of the states chose their electors based on the candidate that won the popular vote in the election. Though there is no constitutional requirement that the electors vote for that candidate, generally they are selected by and are members of the political party whose candidate wins the election, and they pledge to support their party’s candidate. To further strengthen this requirement, twenty-six states have passed laws that require the electors to cast their ballot for the winner of the popular vote.[viii]

Today in the United States, forty-eight of the fifty states also assign their electors on a winner-take-all basis. In other words, all of the electors from a state vote for the winner of the popular vote, regardless of how close that vote may be. By way of illustration, George W. Bush won all twenty-five of Florida’s electoral votes in 2000, even though he won the popular vote in the state by less than 600 votes. The shift to winner take all began in 1824, and by 1836, all but South Carolina used this system. The change occurred primarily to enhance the influence of state political leaders, who “concluded that by concentrating all of the state’s electoral votes in a single slate, they could enhance their weight in the electoral college and thus their influence on the elections.”[ix] As the election of the president became tied ever closer to the popular will, the occupant of the office began to see himself as embodying the will of a majority of the nation, since he was the only person elected by all of the people.

The compromise that finally created the electoral college came with a cost, as most compromise does. Because the number of electors are equal to the number of House and Senate seats that each state receives, small states have proportionally more voting leverage. Although not as pronounced as the disparity in the Senate, “the vote of a Wyoming resident…is worth four times the vote of a California resident in the electoral college.”[x] Prior to the Civil War, the electoral college worked to the advantage of the slave-owning South, due to the three-fifths rule.

But the most pernicious result of the electoral college system is that the candidate with the most popular votes does not always win the presidency. This has happened four times in our nation’s history, in 1824, 1876, 1888 and most recently 2000. Al Gore received 450,000 more popular votes that year, but George W. Bush prevailed in the electoral college in large part because he won all of Florida’s electoral votes by the narrowest of margins. Attempts to amend the Constitution to implement the direct popular election of the president have proved controversial. Robert Dahl has indicated that over seven hundred proposals have been introduced in the House to change the electoral college system. In 1993, a proposal actually passed the House with 83 percent of the vote, but then died in the Senate.[xi]

Proposals to eliminate the winner-take-all provisions that most states follow date back to Madison’s time. In an 1823 letter to George Hay, Madison favored assigning electoral votes in a proportional manner, rather than based on the winner-take-all approach that had become increasingly common by that time. Recent proposals to change this method surfaced in the aftermath of the 2012 election, in which the Democratic candidate Barack Obama won with 51 percent of the popular vote and 332 electoral votes. Some Republican strategists, frustrated in their attempts to win the White House, proposed changes to the winner-take-all approach, but only for selected states that typically vote Democratic in the presidential election but which are controlled by Republicans at the state level. Under one of these proposals, electoral votes would be awarded to the winner of each congressional district, with the two statewide electors given to the candidate that wins the popular vote. As the “National Journal” notes: “rewriting the rules would dramatically shrink or eliminate the Democratic advantage, because of the way House districts are drawn. The decennial redistricting process has dumped huge percentages of Democratic votes into some urban districts, while Republican voters are spread over a wider number of districts, giving the party an advantage.” In addition to the demographic shifts that have focused Democratic voters into urban areas and Republicans into rural and suburban areas, gerrymandered districts (named for Elbridge Gerry) further contribute to the problem. In 2012, Democrats won one million more votes than the Republicans did for House seats, yet the Republicans garnered an additional thirty-three seats. Depending on how changes to the electoral college system are made, it could result in the candidate who wins the popular vote actually losing the election, worsening the problem with the present system. One analyst has estimated that if electoral votes were allocated on the district basis, Obama would have lost the election despite receiving five million more votes than his opponent, Mitt Romney, a result that is difficult to justify in the world’s oldest democracy.[xii]

 

Sources:

 

[i] James Madison letter to George Hay, August 23, 1823, retrieved October 18, 2013 from http://press-pubs.uchicago.edu/founders/documents/a2_1_2-3s10html

[ii] The Jefferson quote is from his letter to Francis Hopkins on March 13, 1789, retrieved from www.let.rug.nl/usa/presidents/thomas-jefferson/letters-of-thomas-jefferson/jetfl75.php on 9/25/2013; the quote from Adams is from his letter to Jonathan Jackson on October 2, 1789 retrieved from www.notable-quotes.com; see also Richard Hofstadler, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780-1840, (Los Angeles, 1969), especially Chapter One

[iii] Hamilton, The Federalist Papers, p. 79; Hofstadler, The Idea of a Party System, p. 28

[iv] Hofstadler, The Idea of a Party System, p. viii

[v] Robert A. Dahl, James Madison: Republican or Democrat, retrieved from htttp://faculty.rcc.edu/sellick/DahlEssay.pdf on 10/10/2013

[vi] Robert Dahl, Pluralist Democracy In the United States: Conflict and Consent”, (Chicago, 1967), p. 86; Rakove, Original Meanings, p. 268

[vii] Beeman, p. 302

[viii] Dahl, Pluralist Democracy in the United States, p. 92; U.S. Electoral College: Who are the Electors? Retrieved from www.archives.gov/federal-register/electoral-college/electors.html on October 17, 2013

[ix] Dahl, How Democratic is the American Constitution, Kindle location 673; Fair Vote. Org, How the Electoral College Became Winner Take All, retrieved from www.fairvote.org/how-the-electoral-college-became-winner-take-all.html on October 18, 2013

[x] Dahl, How Democratic is the American Constitution, Kindle location 666

[xi] Dahl, How Democratic is the American Constitution, Kindle location 714

[xii] Madison letter to  Hay; the Madison letter came to my attention from an interesting article by Rob Ritchie and Devin McCarthy, Why James Madison Wanted to Change the Way we Vote For President, published June 18, 2012 retrieved October 18, 2013 from http://www.fairvote.org/why-james-madison-wanted-to-change-the-way-we-vote-for-president/#.UmKbXhTn_cs; Reid Wilson, The GOP’s Electoral College Scheme, National Journal December 17, 2012, retrieved October 18, 2013 from http://www.nationaljournal.com/columns/on-the-trail/the-gop-s-electoral-college-scheme-20121217 ; see Proposed GOP Changes to Electoral College Election Laws, January 28, 2013, retrieved October 18, 2013 from http://www.whiteoutpress.com/articles/q12013/proposed-gop-changes-to-electoral-college-election-laws/