The Electoral College as Constitutional Survivor

It is often assumed that the durability of an institution is evidence of its desirability. But is that true for the Electoral College? According to Alexander Keyssar, the answer is no. The Electoral College was, he notes, adopted late in the Constitutional Convention as a “consensus second choice”, primarily because it avoided the disadvantages of congressional election and the perceived difficulties with popular election of the president. Yet as early as 1796, with the formation of political parties, it began to operate in a fashion never contemplated by its creators, and over time the gap between their expectations and the system of presidential selection has grown. In 1800, unanticipated problems with the Electoral College precipitated a political crisis, prompting the adoption of the Twelfth Amendment, and since then the Electoral College has been the subject of more proposed amendments than any other feature of the Constitution.

In 2000 and 2016 the Electoral College awarded the presidency to candidates who lost the national popular vote; in 2004 it would have done the same if 60,000 votes in Ohio had shifted from George Bush to John Kerry; and in 2020, if Donald Trump’s electoral challenges had succeeded, it might have done so again. Perhaps unsurprisingly then, the Electoral College has spawned an enormous literature either detailing its defects or extolling its virtues.

But as its title of Why Do We Still Have the Electoral College? suggests, Keyssar’s book addresses a different and more interesting question. Given its departures from the Founders’ expectations, the problems it has posed, the controversy it has engendered, and the many efforts to change or replace it, why has it survived? To answer that question, Keyssar analyzes the more than two centuries of debate and political maneuvering over the Electoral College. The history is both fascinating and instructive.

Early in his volume, Keyssar examines the presidential election of 1800, when the House of Representatives chose the president because Thomas Jefferson and Aaron Burr each had the same number of electoral votes. He shows that the problems revealed by that election went far beyond the fact that the electors could not designate which candidate they favored for president and which for vice president. The Constitution permitted state legislatures to exclude the populace from any direct role in presidential elections by reserving to themselves the choice of electors, and partisan calculations encouraged them to do so—in 1800 only six of the sixteen states held any sort of popular vote for president. Furthermore, in order to increase their influence, most states employed a winner-take-all system, choosing all the electors from the party that prevailed in the state legislature or in the popular vote. (By 1836 every state awarded its electoral votes on a winner-take-all basis, and forty-eight states continue to do so today.) As a result, the distribution of electoral votes did not reflect the division of sentiment within a state, and the electors themselves were reduced to ciphers, casting their votes without any pretense of deliberation.

The debate preceding the adoption of the Twelfth Amendment identified a variety of concerns. The Federalists criticized the amendment’s political consequences, arguing that if parties designated their presidential and vice presidential candidates, it would make it easier for the Jeffersonian Republicans to elect their candidates for both offices and dominate presidential elections. Some small-state representatives worried that designation would transform the system by making it less likely that elections would be decided in the House of Representatives, thereby reducing their influence. Other members of Congress favored a more far-reaching amendment that would eliminate the winner-take-all allocation of electors and empower voters to choose the electors in districts, discouraging partisan manipulation of the electoral process by state legislatures and ensuring that a state’s electoral votes better reflected the division of opinion in the state. Ultimately, however, despite their previous espousal of district elections, short-term political considerations led the Jeffersonian Republicans in Congress to propose the narrow Twelfth Amendment. In doing so they squandered an opportunity to introduce significant reforms at a time when the system was less entrenched and thus more amenable to adjustments. This tendency to elevate short-term partisan advantage over political principle, as Keyssar notes, would be repeated when future proposals for electoral-college reform were considered.

Not until the mid-twentieth century did most critics of the Electoral College favor its replacement by a national popular vote.

Dissatisfaction with the winner-take-all system of allocating electors, an arrangement that was never part of the original constitutional design, continued after the adoption of the Twelfth Amendment. Indeed, proposals for a district-based choice of electors or for a proportional award of electors, either of which would more closely track the vote within particular states, were the primary alternatives espoused by reformers until the 1950s. Critics of the Electoral College system also continued to object to the contingent election of the president by the House of Representatives, viewing it as an invitation to political intrigues and as inconsistent with republican government. Thomas Jefferson characterized it as “the most dangerous blot on our constitution”, and James Madison in 1823 suggested that the equal vote for each state was “so great a departure from the Republican principle of numerical equality that an amendment of the Constitution is justly called for.” Yet political considerations stymied reform efforts, and members of Congress could safely ignore the calls for reform, because the issue did not galvanize the public or generate a sustained movement for change.

In recent decades critics have concentrated their fire on the purportedly undemocratic character of the Electoral College, raising a series of objections. Electors might not vote for the candidate chosen by voters (the “faithless elector” problem). Indeed, the Constitution does not even guarantee that the people will get to choose the electors—that is up to the state legislature—and as the Supreme Court noted in Bush v. Gore, the legislature “after granting the franchise can take back the power to appoint the electors.” More importantly, the candidate who attracts the most votes nationwide might not win the presidency (the “wrong winner” problem). Critics also insist that votes in a presidential election should have an equal impact on the outcome, regardless of the state in which they are cast. This argument, Keyssar notes, gained particular traction in the wake of the Supreme Court’s “one person, one vote” rulings of the 1960s. Yet in 2016 Wyoming cast an Electoral College vote for every 190,000 residents, while California did so only for every 680,000 residents. Small wonder, then, that since the 1940s, when scientific opinion polls were first conducted, sizable majorities have consistently favored replacing the Electoral College with a national popular vote. For decades polls showed both Democrats and Republicans endorsing this change, though Republican support dropped markedly after the 2016 presidential election. This shift underscores the responsiveness of public opinion on the Electoral College to short-term political calculations. It also suggests the fallibility of those calculations, as social science research is divided on whether the Electoral College currently advantages Republicans or Democrats.

As Keyssar wryly notes, “even a cursory glance at the historical record makes plain that the system has not survived because of the shattering brilliance of the arguments made on its behalf.” Political calculations, not political principles, have doomed reform efforts. One factor has been the very intricacy of the Electoral College system. Piecemeal changes such as reform of the contingent-election system or the replacement of electors by an automatic allocation of electoral votes have been rejected either because they implicitly seemed to endorse objectionable features of the Electoral College system, such as the winner-take-all allocation of electoral votes, or because, in Senator Sam Ervin’s colorful language, “it would be almost like chasing a fly with an elephant gun.”

For more fundamental changes, the difficulty has been in altering electoral institutions when they are already in operation and have attracted support because of the political advantages they provide. Some state political leaders have worried that the elimination of the Electoral College might lead the federal government to impose uniform voting qualifications and take over the administration of elections, in effect undermining state prerogatives. In the mid-twentieth century, some African-American leaders and Democratic liberals opposed eliminating the Electoral College, viewing the influence it secured for populous Northern states as balancing off the conservative influence of Southern states in which black voting was suppressed. However, Keyssar documents that the strongest opposition to the elimination of the Electoral College came from Southern members of Congress, who recognized that the switch to a national popular vote threatened to reduce Southern influence. Under the Electoral College, the suppression of the black vote did not affect the political influence of Southern states because their electoral votes depended on their population, not on the number of votes cast. Put bluntly, the three-fifths compromise had been transformed into a five-fifths advantage. But election of the president by a national popular vote would penalize Southern states for their disenfranchisement of African-Americans and thus threaten the post-Redemption political order.

This Southern opposition was decisive in defeating the most significant attempt to replace the Electoral College with a national popular vote, which occurred in the late 1960s. Keyssar identifies several factors bolstering the campaign to replace the Electoral College. Among these was an emerging popular commitment to simple democracy, in part promoted by the civil-rights movement, which was reflected in poll data showing that more than three-quarters of respondents favored electing presidents by a national popular vote. Also fueling the campaign was concern about the hazards of the Electoral College, particularly the danger of an election being thrown into the House of Representatives, a concern underscored by the independent candidacy of George Wallace in 1968 and the potential for a repetition of that candidacy in 1972. In addition, the party system was in flux in the 1960s, partially fueled by increased black voting in the South. Neither party could be sure that the Electoral College would continue to benefit them, and political uncertainty reduced their commitment to its continuation. Seizing on the moment; Senator Birch Bayh of Indiana introduced a national-popular-vote amendment in 1969. The amendment was overwhelmingly endorsed by the House of Representatives, with support from both large-state and small-state representatives. But it failed in the Senate, where supporters of the amendment did not have the votes to invoke cloture when Democratic senators from the South mounted a filibuster. In later congressional sessions Bayh would reintroduce the amendment, but it never again came as close to passage. And over time the exodus of Southern conservatives to the Republican Party and the emergence of a new Solid South that is reliably Republican in presidential elections have undermined the support of Republican politicians for eliminating the Electoral College.

As Keyssar notes, the conversation has shifted. Contemporary critics of the Electoral College typically propose that it be eliminated, insisting that the single constitutional officer with a national constituency should be chosen by the popular vote of a national electorate. In contrast, contemporary defenders of the Electoral College view its reliance on the states as a recognition of the federal character of our union and reject the national popular vote as a departure from the more complex understanding of popular government that underlies the Constitution. Here Keyssar’s history seems particularly valuable. It shows that critiques of the Electoral College have changed over time, and so too have the proposals for Electoral College reform. Not until the mid-twentieth century did most critics of the Electoral College favor its replacement by a national popular vote. Prior to that, they favored retaining the Electoral College while using district-based choice of electors within states or distributing a state’s electoral votes based on the percentage of the popular vote each candidate received, thereby reducing the likelihood of a candidate winning the popular vote while losing the Electoral College vote. Put differently, the emphasis historically has been on reform of the Electoral College rather than on its elimination, and the current emphasis on its elimination or on its retention in its current form unduly constricts the range of alternatives that might reasonably be considered.

In a letter sent to Benjamin Harrison shortly after the Philadelphia Convention, George Washington confided that “I wish the Constitution had been made more perfect,” but he was reassured by the presence of a “constitutional door for amendment thereafter.” Keyssar’s book raises the question whether Washington was too optimistic, for as Donald Lutz’s research has demonstrated, the U.S. Constitution is among the world’s most difficult to amend. Certainly the history of the Electoral College is one of repeated failure to address acknowledged defects, both great and small, and the difficulty of constitutional amendment has enabled their opponents to resist even needed changes. The prospects for an amendment reforming or eliminating the Electoral College remain bleak. This is implicitly recognized in the current campaign for the National Popular Vote Interstate Compact, which seeks to introduce fundamental changes while circumventing the amendment process. To understand why we not only still have the Electoral College but also why we can expect to have it for the foreseeable future, one cannot do better than Keyssar’s perceptive analysis.

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