“The right of suffrage was much more diffusive in the North than the South; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty.” – James Madison
So if we take Madison’s words at face value, I think we can start our examination by making the bold assertion — and perhaps obvious today to many – that the modern framing of the Electoral College is flawed. The common argument, or current conventional wisdom, that would have us believe that the Founders deliberately and uniformly decided on the system in order to insure that candidates would not restrict campaigning to the most populous states and that the system would prevent just California and New York from picking the president is not based in historical fact. To start with, such a claim falls victim to the assumption that dominates debates about the American Constitution — that the Founders were a unified group whose decision-making was monolithic in nature. This assumption is nothing more than a comforting thought. Rather, the Electoral College, like most of the Constitution (and the democracy that was meant to ensue), was a matter of immense compromise. Ironically, the result of this particular compromise ended in the antithesis of a democractic ideal and instead produced a convoluted and decidedly undemocratic system whose intricacy makes the will and voice of every voter vulnerable to suppression. Add to this the pretty sober reality that our modern debate about the Electoral College often overlooks the fact that the Electoral College has never actually functioned as it was intended, except when Washington was elected, which, honestly, hardly gives credit to the system of electorates as he would have won, anyway. So it should come as no surprise that the Electoral College is a system almost universally condemned among political scientists because of these weaknesses. So, let’s get into it.
For the sake of expediency, we’ll start with the basics. First, it’s important to note that at the time of the Constitutional Convention, where the Electoral College was decided upon, there were no political parties and how the President was elected was not a top priority to figure out. Second, we need to appreciate the context of the time when the Electoral College was being decided. It was following the disastrous Articles of Confederation, the original governing document of the United States, when there was almost no central government. In this absence of a national system, the Constitutional Convention in 1787, then, was an urgent assembly designed to fix the problems of the system that left vulnerable a young and fragile nation. The Constitution had to be decided at the Convention or else there may not have been a United States, but a bunch of individual countries. This forced compromise, because if they couldn’t come up with something, the nation would splinter off into separate nations, making them more prone to be conquered by Europe, who already saw them as vulnerable and in political turmoil. This possibility of fracture, not some principle of fairness and fear of tyranny of the majority, is why smaller states have disproportionate power.
The Convention’s decision-making process that resulted in the Electoral College that informs our elections today was not a smooth one. For one thing, there were 30 different votes on 30 different proposals, demonstrating how fragmented the Founders’ thinking was on how our democracy was going to go about electing its Executive. In the end, there were three main options: the President would be selected by Congress; the President would be picked by the state legislators, with the person winning the most states becoming President; the President would be elected by direct popular vote. As the Founders debated these three options, it was clear that there were multiple concerns regarding the efficacy of each one. So, let’s take a look at those concerns to better understand how we ended up with the system that continues to determine our President today.
First, there was the concern of legislative intrigue. Whatever system was to prevail, schemes amongst members of Congress for self-interested reasons had to be guarded against. Then there was the concern of Presidential independence. If Congress were to elect the President, he would be beholden to Congress and, among other potential conflicts of interest, vulnerable to impeachment every time he didn’t fall in line with their will.
Next was the issue of voter parochialism. The concern was that the country was too large at the time — which is wild, considering how much bigger it is today — and the thought was that the people would be too uninformed about Presidential candidates (other than leaders from their own state). What if all 13 states were likely to choose 13 different candidates? How would that translate into a majority? It followed that something beyond a direct election would be necessary to make the Presidential choice a national one. However, there was also concern about the intermediaries, the electors, between the public and the election, which was pretty prescient given the way intermediaries have ended up acting and could potentially act. In terms of direct election, some thought that this would make the President too powerful, as he would have the whole support of the nation, whereas congress would not.
While all of these concerns occupied a good deal of the Founders’ attention, perhaps the biggest concern that drove debate was over the role of small states. You see, under the Articles of Confederation, each state was equal. Every law passed in Congress required a 2/3rd majority, essentially giving the small states veto power. So small states didn’t want to lose that power. The biggest concession the small states got was what happens if no one got a majority of electoral votes, which is what many of the delegates at the convention believed would happen after Washington. In such a scenario, each state in congress gets one equal vote, and the person with a majority wins. So, to give you the modern implication of this system, in this year’s election, if Donald Trump and Joe Biden had tied, Montana and California’s vote would have counted the same.
At least equal in significance to these negotiations for the electoral system that would inform how we were to elect our President was the tension between slave states and free states, a tension that would define America for generations, and whose impact is still felt today in the Electoral College. The slave states worked hard to make sure they were overrepresented. Hence, the 3/5ths compromise, which counted each enslaved person as 3/5ths of a person in the census, thus giving slave states more representation in Congress and the Electoral College. If there were a popular, direct election, slave states would then lose this boost in power because enslaved people obviously could not vote.
As I noted before, the stakes were high at the Constitutional Convention. By the time the Founders got around to choosing how the President was selected, which again was not the writing of the Constitution’s top priority, there was fatigue and a fear of failure. So you can imagine that it was, at some point in the negotiations, easier for the bigger states to acquiesce to slave and small states, who were willing to walk away if they didn’t get what they wanted, just to reach some kind of agreement that would allow the Constitution in its entirety to be agreed upon. Accordingly, the Electoral College became a messy compromise: a popular vote funneled through the rules of each individual state with Congress having the final say.
The modern justification — which like much of American education ignores the inconvenient historical reality that the Electoral College was intended to keep a tyranny of the majority from occurring — isn’t as much wrong as it is misinformed. The biggest driving factor for the Founding Fathers was keeping each state unified in one nation. So the Electoral College system was not the result of a deliberate, carefully thought-out Socratic discussion of the ideal way for a democracy to elect a President; it was simply a negotiation fraught with lots of conflict and impassable stand-offs. So if you hear people justify the Electoral College based on any other premise — they’re wrong.
There is also often an assumption that the debate over the Electoral College’s efficacy is a fairly recent development because Democrats don’t like the fact that only once since 1992 has a Republican won the popular vote but still won the presidency twice. This is not the case. There have been multiple amendments to the Electoral College over the years, over 300 proposed changes to its structure in our history, and a massive movement in the 1960s to abolish it.
So, let’s get into what this messy compromise that has continually invited scrutiny and criticism has resulted in. Right now, there are 538 electoral votes, with each state receiving the total number of its electorates based on its representatives (the sum of House and Senate seats). The minimum, then, is three electoral votes. Two senators plus one congressperson. This obviously gives states like Montana massively disproportionate power in Congress and the Presidential election because they get automatically two extra votes because of their senators despite their tiny population. As it stands now, a vote by a person in Montana is worth roughly 40 times more than one in California. Washington D.C. gets three, because that’s the minimum, as they don’t have representatives in congress. Before the 70’s, they got none. A candidate needs a majority to win, which is 270 electoral votes.
So, how’d we get here? The electoral votes are cast by electors from each state. How are they selected? Well, it’s up to each state. But basically the state party nominates party elites or donors, who can’t be holding federal office, as a sort of reward for their support. Technically, when you cast your vote on election day, you’re not actually voting for the candidate for President or Vice President; you’re voting for the slate of electors to then vote for the President and Vice President. I WONDER HOW MANY AMERICANS ACTUALLY KNOW THE LEVEL OF INTERMEDIARY STEPS BETWEEN THEM AND THEIR VOTE? There is no Constitutional guarantee that the majority popular vote gets to decide the electors. This is significant in terms of the democratic values of our elections. In fact, in the mid-19th century, a lot of states just used their state legislator to pick the electors themselves. The votes of each state are distributed by a winner-take-all model, except in Maine and Nebraska, which award votes by congressional district. For example, this year Joe Biden got one vote from Nebraska and Donald Trump got two. If it seems intricate and confusing, you’re right, it is. And you would be right to question if the most powerful nation in the history of the world should choose its leader this way.
Back to the nitty gritty, which I know seems tedious, but I want to show you the intricacy of the system. Once all the votes are counted, they’re certified. All the electors meet on the first Monday after the second Wednesday in November in their respective state capitals and mail their votes to congress. They do not have to vote for the person who won their state’s popular vote. And in fact, almost every time, there’s someone who does just that. It’s what’s called a faithless elector, and it’s a problem.
If you’ve been paying attention, this process was quite the ordeal in 2020, given President Trump’s endeavors to prevent this certification from happening and have the states pick faithless electors to support him, disregarding the popular vote nationally and in each state. This is obviously a massive existential threat to the Republic. The ability of the sitting President to bully states in the Electoral College into keeping him in power is ripe for the potential of a breakdown in trust of the system and its exploitation. It’s important to note that this is possible in large part because of how prominent political parties are now, which, again, did NOT exist at the time of the Constitutional Convention and the system was designed with zero partisanship in mind. But, because of how intricate the system is and Trump’s control over his party, he still can technically overturn the election, because at the time of this recording, the process is not over. Congress must still certify the votes of each state. The result of the election is not official until 1pm on January 6th when congress does so.
So how does this certification work? Well, the president of the Senate, the Vice President, presides over a session of the new congress to count each electoral vote. The VP then certifies the votes while they’re being counted. Which must be super awkward for any sitting Vice President who lost re-election or was seeking election like Mike Pence and Al Gore. However, Congress can object to the certification of certain states if one Representative and Senator both challenge them. The House and Senate then each vote on the objection. If they agree to reject the ballots, for any reason, then the votes don’t count.
This has happened, by the way, as recently as 1960, when Alabama’s votes did not count, and possibly handed Kennedy the election.
Multiple Republican members of Congress have pledged to do this for President Trump. Given the balance of power in Congress, this assuredly will not work. But what’s scary for the Republic is that it could. If one party were to control both chambers of Congress, they could throw out every state’s electoral votes and pick the President themselves. Right now, many people are calling what President Trump is doing an attempted coup. I agree that this interpretation of his actions is true in spirit. But coup implies an illegal taking of power. What Americans can’t overlook (and may not know at all) is the more important point that legally Trump could still legitimately become President by succeeding in the very steps he is trying to put in motion. You might stop and comfort yourself by thinking, well, even if there is a legal way forward, its likelihood of success is so unrealistic, so far fetched, that you don’t have to worry. And maybe you’re thinking also that if it doesn’t happen this time, when it feels like America is more divided about its democratic founding principles than ever, it won’t, it can’t happen in the future. That’s not good enough. Because even the possibility that our system can act to defy, by its own devising, the very democratic principles it sought and fought initially to live by — well, that is a massive problem, not only because it very well could happen next time. But also because our Founding Fathers created the system that allowed it to happen and we as a democracy neither fully appreciate its threat to the Republic nor have acted to redress its glaring loopholes and underlying deficits. Please note, If you’re listening to this after January 6th, 2020 and it did work — my bad.
So how exactly could these loopholes be taken advantage of? Let’s get back to the procedure. If there is no majority, each state gets one vote and must pick amongst the top five finishers. Again, this is what a lot of people at the Constitutional Convention thought was going happen almost every time. That there’d be four or five people, no one would get a majority, and Congress would decide. In that case, again, the House picks the President, with each state getting one vote. And the Senate picks the VP. If no President is picked, the VP-elect becomes President. If neither happens, the Speaker of the House becomes President. This has never happened. But boy would it be wild if it did.
You might think that the power of Congress to do this could lead to some shady stuff. And it has. Most notably in what’s called the compromise of 1877, which, for reasons I don’t understand, is not more well known given its impact on American history. That election was between Democrat Samuel Tilden and Republican Rutherford B. Hayes. Neither Tilden nor Hayes won a majority of votes and Tilden had won the popular vote. So what was the resolution? Democrats, who then were dominated by southern states, agreed to make Hayes President in return for one, huge thing: the end of Reconstruction in the South. What did this lead to? Jim Crow laws, which stripped black people of civil rights and led to segregation.
Let’s get back to modern arguments about the Electoral College. As you’ve seen, defense of the Electoral College is rarely rooted in its historical origins or applications. You’ve also seen how there are many, many built-in ways for the system to circumvent the will of the people. Donald Trump almost assuredly won’t succeed in his attempt to stay in power (again, if he does — my bad). But the support of Republican politicians in an attempt to help him do so by taking advantage of the system is more than concerning if you believe in the concept that the vote is the cornerstone of democracy. Because it could work. And if it did, the results would be disastrous. In the short term, imagine the unrest and tumult that would follow if such a scheme succeeded. Imagine the potential for civil strife on a large scale. In the long term, imagine the impact on the capacity for a democracy to survive in the face of a group of people given too much power in the right positions at the right time in history. The Electoral College is very simply the consequence of a system rooted in inequality and disproportionate power. So why is it a surprise that it is vulnerable to the very abuses of power that gave birth to it?
Sadly for all of us — those who understand the threat of the Electoral College to democracy and those for whom it remains either an obscure historical phenomenon or a mechanism for an increasing minority of Americans to hold onto power — because of the advantage the Electoral College currently gives Republicans and the 2/3rds majority required to change the system, it most likely won’t change, not anytime soon and perhaps not in time for more damage to be done to our Republic. However, some states are trying. There is the National Popular Vote Interstate compact, which consists of states that pledge to give their Electoral College votes to the winner of the national popular vote. It has been adopted by 15 states to date and is growing. I don’t know what will come of that movement. But I hope that this explanation has provided some insight for you into why the Electoral College is certainly in need of reform if it’s going to be the more equal and fair system upon which democracy is meant to be founded and upon which it relies to realize its own values.
On that note, next week, we’re going to examine one really, really big question: Why is there inequality in society in the first place? Swiss philosopher Jean-Jacque Rousseau is going to tell us and further contribute to our own examination of democracy’s relevance to our current times and struggles.
If you enjoyed the podcast please be sure to subscribe, rate it five stars, and leave a review. If you leave a question in the review, I’ll be sure to answer it on the show. I’d also love to hear from you, so email me at email@example.com with any questions or suggestions. Follow me on instagram @politicsthenandnow and on twitter @politicsthennow
I’d like to thank Harriet Leslie and Sarah and Cam McMillan for helping me put this together. And as always, my dog, Socrates, for all his support. Thank you for deciding to be a more informed citizen today.