The Danger of the
Attacks on the Electoral College
Hillsdale College
Imprimis
June 2019 • Volume 48, Number 6 • Trent England
Trent England
Director, Save Our States
Trent England is executive vice president and the
David and Ann Brown Distinguished Fellow at the Oklahoma Council of Public
Affairs, where he also directs the Save Our States project. He earned his B.A.
in government from Claremont McKenna College and his J.D. from the George Mason
University School of Law. He previously served as executive vice president of the
Freedom Foundation and as a legal policy analyst at the Heritage Foundation. He
hosts the podcast, The Trent England Show, and has written for numerous
publications, including The Wall Street Journal, Christian Science
Monitor, and The Washington Times. He is a contributor to The
Heritage Guide to the Constitution.
The following is adapted from a speech delivered on
April 30, 2019, at Hillsdale College’s Allan P. Kirby, Jr. Center for
Constitutional Studies and Citizenship in Washington, D.C.
Once upon a time, the Electoral College was not
controversial. During the debates over ratifying the Constitution,
Anti-Federalist opponents of ratification barely mentioned it. But by the
mid-twentieth century, opponents of the Electoral College nearly convinced Congress
to propose an amendment to scrap it. And today, more than a dozen states have
joined in an attempt to hijack the Electoral College as a way to force a
national popular vote for president.
What changed along the way? And does it matter? After
all, the critics of the Electoral College simply want to elect the president
the way we elect most other officials. Every state governor is chosen by a
statewide popular vote. Why not a national popular vote for president?
Delegates to the Constitutional Convention in 1787 asked
themselves the same question, but then rejected a national popular vote along
with several other possible modes of presidential election. The Virginia
Plan—the first draft of what would become the new Constitution—called for “a
National Executive . . . to be chosen by the National Legislature.” When the
Constitutional Convention took up the issue for the first time, near the end of
its first week of debate, Roger Sherman from Connecticut supported this
parliamentary system of election, arguing that the national executive should be
“absolutely dependent” on the legislature. Pennsylvania’s James Wilson, on the
other hand, called for a popular election. Virginia’s George Mason thought a
popular election “impracticable,” but hoped Wilson would “have time to digest
it into his own form.” Another delegate suggested election by the Senate alone,
and then the Convention adjourned for the day.
When they reconvened the next morning, Wilson had taken
Mason’s advice. He presented a plan to create districts and hold popular
elections to choose electors. Those electors would then vote for the
executive—in other words, an electoral college. But with many details left out,
and uncertainty remaining about the nature of the executive office, Wilson’s
proposal was voted down. A week later, Elbridge Gerry of Massachusetts proposed
election by state governors. This too was voted down, and a consensus began to
build. Delegates did not support the Virginia Plan’s parliamentary model
because they understood that an executive selected by Congress would become
subservient to Congress. A similar result, they came to see, could be expected
from assigning the selection to any body of politicians.
There were other oddball proposals that sought to salvage
congressional selection—for instance, to have congressmen draw lots to form a
group that would then choose the executive in secret. But by July 25, it was
clear to James Madison that the choice was down to two forms of popular
election: “The option before us,” he said, “[is] between an appointment by
Electors chosen by the people—and an immediate appointment by the people.”
Madison said he preferred popular election, but he recognized two legitimate
concerns. First, people would tend toward supporting candidates from their own
states, giving an advantage to larger states. Second, a few areas with higher
concentrations of voters might come to dominate. Madison spoke positively of
the idea of an electoral college, finding that “there would be very little
opportunity for cabal, or corruption” in such a system.
By August 31, the Constitution was nearly finished—except
for the process of electing the president. The question was put to a committee
comprised of one delegate from each of the eleven states present at the
Convention. That committee, which included Madison, created the Electoral
College as we know it today. They presented the plan on September 4, and it was
adopted with minor changes. It is found in Article II, Section 1:
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.
Federal officials were prohibited from being electors.
Electors were required to cast two ballots, and were prohibited from casting
both ballots for candidates from their own state. A deadlock for president
would be decided by the House of Representatives, with one vote per state.
Following that, in case of a deadlock for vice president, the Senate would
decide. Also under the original system, the runner up became vice president.
This last provision caused misery for President John
Adams in 1796, when his nemesis, Thomas Jefferson, became his vice president.
Four years later it nearly robbed Jefferson of the presidency when his
unscrupulous running mate, Aaron Burr, tried to parlay an accidental deadlock
into his own election by the House. The Twelfth Amendment, ratified in 1804,
fixed all this by requiring electors to cast separate votes for president and
vice president.
And there things stand, constitutionally at least. State
legislatures have used their power to direct the manner of choosing electors in
various ways: appointing them directly, holding elections by district, or
holding statewide elections. Today, 48 states choose their presidential
electors in a statewide, winner-take-all vote. Maine and Nebraska elect one
elector based on each congressional district’s vote and the remaining two based
on the statewide vote.
It is easy for Americans to forget that when we vote for
president, we are really voting for electors who have pledged to support the
candidate we favor. Civics education is not what it used to be. Also, perhaps,
the Electoral College is a victim of its own success. Most of the time, it
shapes American politics in ways that are beneficial but hard to see. Its
effects become news only when a candidate and his or her political party lose a
hard-fought and narrowly decided election.
So what are the beneficial effects of choosing our
presidents through the Electoral College?
Under the Electoral College system, presidential
elections are decentralized, taking place in the states. Although some see this
as a flaw—U.S. Senator Elizabeth Warren opposes the Electoral College expressly
because she wants to increase federal power over elections—this
decentralization has proven to be of great value.
For one thing, state boundaries serve a function
analogous to that of watertight compartments on an ocean liner. Disputes over
mistakes or fraud are contained within individual states. Illinois can recount
its votes, for instance, without triggering a nationwide recount. This was an
important factor in America’s messiest presidential election—which was not in
2000, but in 1876.
That year marked the first time a presidential candidate
won the electoral vote while losing the popular vote. It was a time of
organized suppression of black voters in the South, and there were fierce
disputes over vote totals in Florida, Louisiana, and South Carolina. Each of
those states sent Congress two sets of electoral vote totals, one favoring
Republican Rutherford Hayes and the other Democrat Samuel Tilden. Just two days
before Inauguration Day, Congress finished counting the votes—which included
determining which votes to count—and declared Hayes the winner. Democrats
proclaimed this “the fraud of the century,” and there is no way to be certain
today—nor was there probably a way to be certain at the time—which candidate
actually won. At the very least, the Electoral College contained these disputes
within individual states so that Congress could endeavor to sort it out. And it
is arguable that the Electoral College prevented a fraudulent result.
Four years later, the 1880 presidential election
demonstrated another benefit of the Electoral College system: it can act to
amplify the results of a presidential election. The popular vote margin that
year was less than 10,000 votes—about one-tenth of one percent—yet Republican
James Garfield won a resounding electoral victory, with 214 electoral votes to
Democrat Winfield Hancock’s 155. There was no question who won, let alone any
need for a recount. More recently, in 1992, the Electoral College boosted the
legitimacy of Democrat Bill Clinton, who won with only 43 percent of the
popular vote but received over 68 percent of the electoral vote.
But there is no doubt that the greatest benefit of
the Electoral College is the powerful incentive it creates against regionalism.
Here, the presidential elections of 1888 and 1892 are most instructive. In
1888, incumbent Democratic President Grover Cleveland lost reelection despite
receiving a popular vote plurality. He won this plurality because he won by
very large margins in the overwhelmingly Democratic South. He won Texas alone
by 146,461 votes, for instance, whereas his national popular vote margin was
only 94,530. Altogether he won in six southern states with margins greater than
30 percent, while only tiny Vermont delivered a victory percentage of that size
for Republican Benjamin Harrison.
In other words, the Electoral College ensures that
winning supermajorities in one region of the country is not sufficient to win
the White House. After the Civil War, and especially after the end of
Reconstruction, that meant that the Democratic Party had to appeal to interests
outside the South to earn a majority in the Electoral College. And
indeed, when Grover Cleveland ran again for president four years later in 1892,
although he won by a smaller percentage of the popular vote, he won a
resounding Electoral College majority by picking up New York, Illinois,
Indiana, Wisconsin, and California in addition to winning the South.
Whether we see it or not today, the Electoral College
continues to push parties and presidential candidates to build broad
coalitions. Critics say that swing states get too much attention, leaving
voters in so-called safe states feeling left out. But the legitimacy of a
political party rests on all of those safe states—on places that the party has
already won over, allowing it to reach farther out. In 2000, for instance,
George W. Bush needed every state that he won—not just Florida—to become
president. Of course, the Electoral College does put a premium on the states in
which the parties are most evenly divided. But would it really be better if the
path to the presidency primarily meant driving up the vote total in the deepest
red or deepest blue states?
Also, swing states are the states most likely to have
divided government. And if divided government is good for anything, it is
accountability. So with the Electoral College system, when we do wind up with a
razor-thin margin in an election, it is likely to happen in a state where both
parties hold some power, rather than in a state controlled by one party.
Despite these benefits of the current system, opponents
of the Electoral College maintain that it is unseemly for a candidate to win
without receiving the most popular votes. As Hillary Clinton put it in 2000:
“In a democracy, we should respect the will of the people, and to me, that
means it’s time to do away with the Electoral College.” Yet similar systems
prevail around the world. In parliamentary systems, including Canada, Israel,
and the United Kingdom, prime ministers are elected by the legislature. This happens
in Germany and India as well, which also have presidents who are elected by
something similar to an electoral college. In none of these democratic systems
is the national popular vote decisive.
More to the point, in our own political tradition, what matters
most about every legislative body, from our state legislatures to the House of
Representatives and the Senate, is which party holds the majority. That party
elects the leadership and sets the agenda. In none of these representative
chambers does the aggregate popular vote determine who is in charge. What
matters is winning districts or states.
Nevertheless, there is a clamor of voices calling for an
end to the Electoral College. Former Attorney General Eric Holder has declared
it “a vestige of the past,” and Washington Governor Jay Inslee has labeled it
an “archaic relic of a bygone age.” Almost as one, the current myriad of
Democratic presidential hopefuls have called for abolishing the Electoral
College.
Few if any of these Democrats likely realize how similar
their party’s position is to what it was in the late nineteenth century, with
California representing today what the South was for their forebears. The
Golden State accounted for 10.4 percent of presidential votes cast in 2016,
while the southern states (from South Carolina down to Florida and across to
Texas) accounted for 10.6 percent of presidential votes cast in 1888. Grover
Cleveland won those southern states by nearly 39 percent, while Hillary Clinton
won California by 30 percent. But rather than following Cleveland’s example of
building a broader national coalition that could win in the Electoral College,
today’s Democrats would rather simply change the rules.
Anti-Electoral College amendments with bipartisan support
in the 1950s and 1970s failed to receive the two-thirds votes in Congress they
needed in order to be sent to the states for consideration. Likewise today,
partisan amendments will not make it through Congress. Nor, if they did, could
they win ratification among the states.
But there is a serious threat to the Electoral
College. Until recently, it has gone mostly unnoticed, as it has made its way
through various state legislatures. If it works according to its supporters’
intent, it would nullify the Electoral College by creating a de facto
direct election for president.
The National Popular Vote Interstate Compact, or NPV,
takes advantage of the flexibility granted to state legislatures in the
Constitution: “Each State shall appoint, in such Manner as the Legislature
thereof may direct, a Number of Electors.” The original intent of this was to
allow state legislators to determine how best to represent their state in
presidential elections. The electors represent the state—not just the
legislature—even though the latter has power to direct the manner of
appointment. By contrast, NPV supporters argue that this power allows state
legislatures to ignore their state’s voters and appoint electors based
on the national popular vote. This is what the compact would require states to
do.
Of course, no state would do this unilaterally, so NPV
has a “trigger”: it only takes effect if adopted by enough states to control
270 electoral votes—in other words, a majority that would control the outcome
of presidential elections. So far, 14 states and the District of Columbia have
signed on, with a total of 189 electoral votes.
Until this year, every state that had joined NPV was
heavily Democratic: California, Connecticut, Hawaii, Illinois, Maryland,
Massachusetts, New Jersey, New York, Rhode Island, Vermont, and Washington. The
NPV campaign has struggled to win other Democratic states: Delaware only
adopted it this year and it still has not passed in Oregon (though it may
soon). Following the 2018 election, Democrats came into control of both the legislatures
and the governorships in the purple states of Colorado and New Mexico, which
have subsequently joined NPV.
NPV would have the same effect as abolishing the
Electoral College. Fraud in one state would affect every state, and the only
way to deal with it would be to give more power to the federal government.
Elections that are especially close would require nationwide recounts.
Candidates could win based on intense support from a narrow region or from big
cities. NPV also carries its own unique risks: despite its name, the plan
cannot actually create a national popular vote. Each state would still—at least
for the time being—run its own elections. This means a patchwork of rules for
everything from which candidates are on the ballot to how disputes are settled.
NPV would also reward states with lax election laws—the higher the turnout,
legal or not, the more power for that state. Finally, each NPV state would
certify its own “national” vote total. But what would happen when there are
charges of skullduggery? Would states really trust, with no power to verify,
other state’s returns?
Uncertainty and litigation would likely follow. In fact,
NPV is probably unconstitutional. For one thing, it ignores the Article I,
Section 10 requirement that interstate compacts receive congressional consent.
There is also the fact that the structure of the Electoral College clause of
the Constitution implies there is some limit on the power of state legislatures
to ignore the will of their state’s people.
One danger of all these attacks on the Electoral College
is, of course, that we lose the state-by-state system designed by the Framers
and its protections against regionalism and fraud. This would alter our
politics in some obvious ways—shifting power toward urban centers, for
example—but also in ways we cannot know in advance. Would an increase in
presidents who win by small pluralities lead to a rise of splinter parties and
spoiler candidates? Would fears of election fraud in places like Chicago and
Broward County lead to demands for greater federal control over elections?
The more fundamental danger is that these attacks
undermine the Constitution as a whole. Arguments that the Constitution is
outmoded and that democracy is an end in itself are arguments that can just as
easily be turned against any of the constitutional checks and balances that
have preserved free government in America for well over two centuries. The
measure of our fundamental law is not whether it actualizes the general
will—that was the point of the French Revolution, not the American. The measure
of our Constitution is whether it is effective at encouraging just, stable, and
free government—government that protects the rights of its citizens.
The Electoral College is effective at doing this. We need
to preserve it, and we need to help our fellow Americans understand why it
matters.
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