When it came time in 1787 to set the rules for choosing a president of the US, three of the principal authors of the Constitution — James Madison, Gouverneur Morris and James Wilson — argued that the best approach, the one most likely to inspire public confidence and national feeling, would be a nationwide popular vote.
All three also understood the prospects of this happening were, as Wilson put it, “chimerical.” It was obvious the method would instead have to reflect the two great (or awful, if you prefer) compromises hammered out at the Constitutional Convention over political representation. To keep the slave-holding states on board, the delegates had apportioned seats in the House of Representatives on the basis of a population count that considered slaves to be three-fifths of a person. And to assuage the smaller states they had created a Senate with two members per state, regardless of population.
States were thus allotted presidential votes on the basis of how many Senators and House members they had. At first the plan was simply to have the members of Congress vote. But fears this would make the legislature too powerful led the delegates to create what later came to be known as the Electoral College, with the manner of its choosing left to the individual states. If no candidate got a majority of the electoral votes, then the decision went to the House of Representatives — albeit with each state delegation getting only one vote, in yet another concession to the small states.
It’s fair to say the men who designed this system did not entirely think it through. Complaints began springing up almost as soon as it went into effect and have continued ever since. In 2004, the Congressional Research Service found “more proposed constitutional amendments have been introduced in Congress regarding electoral college reform than on any other subject.”
Only one amendment directly addressing the method of electing the president has ever been ratified (in 1804), while another (ratified in 1933) had some impact on the contingent election in the House.
There have been two periods, the 1810s-1820s and 1960s-1970s, when broader reform seemed possible or even likely, as Harvard Kennedy School historian Alexander Keyssar describes in his excellent new book “Why Do We Still Have the Electoral College?”
But most of the time, political factions convinced that they benefit from the system as-is have stood in the way of change.
As I learned last year while writing about the near-miss 1960s-1970s effort to replace the Electoral College with a national popular vote, these political factions and perceived benefits have not remained constant. The US presidential election system definitely favors particular brands of politics at particular times, as it did in 2016, when it gave Donald Trump the presidency even as Hillary Clinton received almost three million more votes. But it can perhaps best be thought of as a sort of random-number generator, with unpredictably shifting biases, that usually churns out the same result as the popular vote but occasionally does not.
With an election coming up in which the makeup of the Electoral College appears to favor Trump again but probably not by enough to get him reelected (when last I checked, FiveThirtyEight’s election model gave him a 3% chance of winning the popular vote and an 10% chance of winning the electoral vote), a brief(ish) review of its post-Constitutional-Convention history seems in order.
The electoral-system amendment ratified in 1804 was the 12th, which arranged that vice presidents and presidents be chosen separately. In the original setup the vice presidency went to the runner-up in the presidential race, and in 1800 Thomas Jefferson and his running mate Aaron Burr ended up with the same number of electoral votes. The subsequent tiebreaker in the House of Representatives proved quite problematic, putting the election in the hands of a Federalist majority that had just been voted out of office in a Democratic-Republican landslide. Two state delegations couldn’t agree on how to vote until, as you may have heard set to music, Alexander Hamilton persuaded just enough of his fellow Federalists to let Jefferson win on the 36th ballot.
By changing when members of Congress and the president take office after an election, 1933’s 20th Amendment at least ensured newly elected House members, rather than lame ducks, would do the voting. But the threat of deadlocked state delegations and a deadlocked House remains.
The aspect of the real-world Electoral College that seemed most to surprise its designers, though, was how quickly it evolved into a rubber stamp for the partisan leanings of state legislators and voters. Many delegates at the Constitutional Convention assumed that — after voting for George Washington in the first election, of course — electors would choose independently for a variety of well-qualified men, leaving most elections (19 out of 20, predicted George Mason) to be decided in the House.
Instead, state political leaders quickly began insisting electors pledge to vote for specific candidates and increasingly arranged that all electors in a state vote for the same candidate, to maximize the national political clout of that state’s majority party. Maryland and Pennsylvania were the trendsetters, awarding all their electoral votes in the 1788-1789 election to the winner of each state’s popular vote (Washington, of course). By 1832 every state but two had adopted this winner-take-all approach. That’s where things stand now, with only Maine and Nebraska choosing some of their electors by House district instead.
As scholars started to put in mathematical terms in the 1940s but politicians suspected almost from the start, winner-take-all negates most of the small-state advantage the delegates to the Constitutional Convention had attempted to insert into the system. This is because when individuals or blocs control differing numbers of votes — as with corporate shareholders, the Council of the European Union or the Electoral College — the likelihood that a big bloc will cast the deciding vote is usually higher than its share of the overall votes (the exception is when there are multiple big blocs with identical numbers of votes).
Sure enough, four of the first five presidents came from Virginia, the most populous state in the 1790 and 1800 censuses and No. 2 in 1810. Not until New Hampshire’s Franklin Pierce in 1852 was a president elected from a state in the bottom half of the population ranking, and that didn’t happen again until Dwight Eisenhower of Kansas was elected a century later. (Since then there’s just been Bill Clinton from Arkansas, although Delaware’s Joe Biden would be the fourth.) Thirty-seven of the 44 men who have served as president have come from a state in the top 25% of the population rankings, 26 from a state in the top 12%.
Possible paths for change
Electoral College opponents have in recent years tried an end-run of sorts with the National Popular Vote Interstate Compact, in which states pledge to award all their electoral votes to the popular-vote winner as soon as states representing an Electoral College majority of 270 votes are on board. This does not seem at odds with the Constitution, which lets states select electors by any manner they choose. It’s not an approach the framers of the Constitution envisioned, but neither is the current setup.
The weakness of the NPVIC might be its fragility. States can back out at any time, and basing everything on the national popular vote when the counting of those votes and the determination of voter eligibility remains entirely in the hands of the states seems potentially fraught. Still, it’s a lot easier to achieve than a constitutional amendment, and is currently only 75 electoral votes short of going into effect.
Another reform that could shake up although not replace the Electoral College would be expanding the House of Representatives. Keeping its membership constant at 435 since 1912, even as the US population has more than tripled, has been an affront not only to representative government but to George Washington, whose only speech at the Constitutional Convention was a plea for each House member to represent no more than 30,000 people.
At the current US population of 330 million, this would mean a House membership of 11,000 and an Electoral College with 11,103 votes. A constitutional amendment that was thought to fall one state short of ratification in 1792 but maybe actually didn’t put the maximum at 50,000 constituents, which implies a House membership of 6,600. That’s a lot! But doubling or tripling the House membership seems like a reasonable reform that could be achieved without a constitutional amendment. Given that it would further diminish the voting power of smaller states in the Electoral College, it might force some movement toward a popular vote.
“The history recounted here has a Sisyphean air,” Keyssar concedes near the end of his book. But Sisyphus had to keep rolling his boulder up a hill for eternity. We’ve only been trying to fix the Electoral College for about 230 years!
Bloomberg
