The Enduring Usefulness Of The Electoral College: A Constitutional Essay

Recently I received in my inbox an email from moveon.org that urged my support of a petition to abolish the Electoral College and put in its place a national election that would elect the winner of a plurality.  This petition views the Electoral College as an archaic remnant of the anti-democratic tendencies of the 18th century founding generation that has outlived its usefulness to our nation’s would-be progressive elites.  Is it possible that the Electoral College has something yet to provide us as a reminder of not only our nation’s historical origins but also its present identity?  It is the purpose of this particular constitutional essay to follow the previous parts of this series [1] in looking at a particular part of the Constitution with a focus both on American history as well as contemporary politics, so that one can see a reason for the existence of the Electoral College that does not merely depend on inertia or a Burkean defense of that which is old simply on the grounds of it being traditional.

Before we examine why the Electoral College ought to be retained, it is worthwhile to discuss why some people would want to remove it.  A handful of times throughout American history, there have been differences in the winner depending on whether the electoral college or popular vote is used.  Twice that situation has happened in the last two decades, when George W. Bush won a contested election in 2000 over Vice President Al Gore and this year when Donald Trump won a particularly ugly contest against Hillary Clinton.  Previously it had happened several times during the 19th century when various Republican candidates of the Guilded Age defeated their Democratic competitors in 1876 and 1888, to give two examples.  It is unclear if this particular phenomenon is a trend, but it is striking to note that this particular tendency for there to be a divergence between the popular vote and electoral vote has, at least historically, gone against the Democrats.

We might ask why this is the case.  In the late 19th century, for example, the divergence was due to the lack of genuine republican institutions within the South.  With the active suppression of black votes in the South, the popular vote of the Democratic party was artificially high relative to the Republicans, meaning that Republicans depended on winning states where they were competitive among the Mid-Atlantic and Midwestern states that had the largest number of electoral votes because they could not compete in the South due to the corruption of its state politics.  To have conceded in the elimination of the Electoral college in the 19th century would have allowed these antidemocratic voter suppression efforts to decisively corrupt the American political process even more than it already was by making it possible to suppress enough Southern Republican votes to make it extremely difficult for the national Republican party to overcome the unnatural disparity.  Similarly, to abolish the electoral college today would be to encourage the registration of illegal immigrants and any other possible technique (like the abuse of absentee ballots) that could skew the election in favor of one party over another.  As it is, the sheer inefficiency of the election discourages such corruption by making it necessary to compete in many smaller races as opposed to one big one.

What does the Constitution have to say about the Electoral College in the first place?  Article II, Section I, Clause 3 of the United States Constitution reads as follows:  “The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President [2].”

Although this manner of choosing the president and vice president worked well enough to give us two terms of Washington-Adams and one term of Adams-Jefferson, the election of 1800, which led to a tie between Jefferson and Burr where it was obvious that Jefferson was supposed to be the President but where Burr refused to concede the point, leading to 36 votes in a deadlocked House of Representatives, forced a change to the system after only twelve years of operation.  The revised method of choosing the president and vice president via the Twelfth Amendment was as follows:  “The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; — the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; — The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. — The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States [3].”

Since this time there have been only very minor adjustments, including a change in inauguration day and an amendment that specifically gave 3 electoral votes to the District of Columbia.  Other than that, for more than two hundred years the electoral college has been the means by which the voters in individual states have been aggregated into a national choice.  Once, this resulted in a presidential election being decided in the House of Representatives in 1824, where the second place vote getter won the election in a coalition with a like-minded candidate who was the fourth-place contender.  Once the election was decided when contested delegate slates in Oregon, Louisiana, and Florida were decided by an ad hoc panel, and once the election was decided de facto via a Supreme Court decision.  At times elections that were very close in terms of votes, like the 1860 election, were landslides in the electoral college because a candidate that got many votes nevertheless was unable to win very many states, namely Stephen Douglas, while another candidate won the North but was not even on the ballot in ten of the Southern states due to the failure of their republican institutions, namely Abraham Lincoln.

Yet despite the imperfections of our republic that remain, the Electoral College tells us something fundamental about our nation and its identity.  Even now, we are not an entirely united state.  On the contrary, there remain wide cultural differences among regions, to the point where there is great diversity and considerable localism among Americans.  There is no firm trust in the goodness of people from other parts of the United States, little empathy for the struggles faced by people across cultural boundaries, and a great deal of contempt for the people in some states dealt with by those in other states.  The electoral college is one of the aspects of our Constitution that reminds us that we are a Union of somewhat disparate parts rather than a unitary state with one national identity and a consistent national culture.  So long as there exists a mistrust between the people of some states and regions and others, it is likely that the Electoral College will remain necessary as a way in which federalism is preserved.  Certainly the distance between some areas of the United States and others do not appear to be going away, and some regions are growing increasingly far apart, making those aspects of our Constitution that preserve the dignity of local governments increasingly important because of the contentious nature of national elections and the power that is decided through them.  Until we can trust our neighbors and the people of other states, it is likely that the Electoral College will be seen as one of the preserving elements of that diversity which we celebrate in word but fail to truly understand or appreciate in deed.  To be sure, it makes votes in some states seemingly pointless and makes elections in other states far more bitter and contentious, but there are surprises, as there were this year when Republicans stormed to victory in Pennsylvania, Wisconsin, and (likely) Michigan, states that were previously assumed falsely to be part of a Democratic firewall and beyond the reach of Republican appeals.  Perhaps such areas should not have been taken for granted.  It is not the Electoral College, after all, that makes some states uncompetitive, but often the assumptions and behavior of the people in those areas.  A constitution cannot fix such matters of motive and behavior, but it merely sets the ground rules based on what level of union can achieve consensus and mutual agreement among all constituent parts of our republic.  Perhaps it is too easy for forget that we are not one wholly united people, but rather a state that lacks the cohesion for comfortable unitary government even now.

[1] See, for example:

https://edgeinducedcohesion.wordpress.com/2011/02/09/powers-denied-to-the-states-a-constitutional-essay/

https://edgeinducedcohesion.wordpress.com/2012/01/30/powers-denied-to-congress-a-constitutional-essay/

https://edgeinducedcohesion.wordpress.com/2012/11/09/puerto-ricos-road-to-statehood-a-constitutional-essay/

https://edgeinducedcohesion.wordpress.com/2016/07/30/the-fugitive-slave-clause-a-constitutional-essay/

[2] http://www.heritage.org/constitution/#!/articles/2/essays/80/electoral-college

[3] http://www.heritage.org/constitution/#!/amendments/12

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About nathanalbright

I'm a person with diverse interests who loves to read. If you want to know something about me, just ask.
This entry was posted in American History, History, Musings and tagged , , , , . Bookmark the permalink.

3 Responses to The Enduring Usefulness Of The Electoral College: A Constitutional Essay

  1. Pingback: A Pre-Mortem Thought Experiment On The Second American Civil War: Part One | Edge Induced Cohesion

  2. Pingback: And That You Will Faithfully Discharge The Duty Of Elector | Edge Induced Cohesion

  3. Pingback: Book Review: The Law Of Peoples | Edge Induced Cohesion

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