With a presidential election looming, it should be a good time to examine again the efficacy of the Electoral College, but if the electoral vote follows the popular vote this time, the topic’s urgency will dissipate. There is, however, another good reason to consider the Constitution’s original electoral system. The insertion of Amy Coney Barrett onto the Supreme Court has made many think again about our Constitution and how to interpret it. A strain of constitutional interpretation regards the original men who framed the Constitution as so sagacious and farsighted that their constructs of 1787 are still perfect for us now. Some believe that God inspired the Constitution.
The Framers did write an amazing document. The governance it started continues on in a somewhat recognizable form to that of 1789, an extraordinary achievement. Nevertheless, an examination of the Electoral College the originators adopted reveals their foresight to have been quite limited. We should remember these limitations when some seek to deify the Framers and the Constitution.
After reading some contemporary comments suggesting that the point to the Electoral College was to preserve the powers of the small states so that the large states would not dominate the presidential selection, I pulled out The Records of the Federal Convention of 1787 edited by Max Farrand and The Federalist Papers to see what these sources said about the method of selecting the president. The issue was debated again and again in the Constitutional Convention of 1787. The delegates would agree to a method, but potential flaws in that selection process would circulate. A different scheme would be proposed and problems with the new proposal would be pointed out. This merry-go-round continued until near the end of the convention when the delegates finally settled on the Electoral College as it appears in the original Constitution.
The convention first voted to have Congress choose the President, but criticisms soon emerged. In James Madison’s words: “If the Legislature elect, it will be the work of intrigue, of cabal, and of faction: it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.” Foreign governments would try to influence Congress in the selection of the President because they would think it important “to have at the head of Government, a man attached to their respective politics and interests.” In addition, a basic goal of the Constitution, the separation of powers, would be compromised because the President would be beholden to Congress for his selection. In addition, as Alexis de Tocqueville, the astute observer of the United States, wrote in Democracy in America forty years later, Congress, chosen to make laws, “would represent but imperfectly the wishes of the nation in the election of its chief magistrate; and that, as they are chosen for more than a year, the constituency might have changed its opinion in that time.”
This and many other methods were proposed and rejected: The state governors should select the President; electors selected by Congress should make the choice; electors drawn by lot from Congress should choose the President.
Madison said that the “fittest” way to select the President was to have a direct election, but he then noted two problems. “The first arose from the disposition of the people to prefer a Citizen of their own State, and the disadvantage this would throw on the smaller States.” Madison did not find this problem insurmountable and said “that some expedient might be hit upon that would obviate it.” The next speaker, however, differed with Madison’s optimism by saying, “The objection drawn from the different size of the States, is unanswerable. The Citizens of the largest states would invariably prefer the Candidate within the State; and the largest States would invariably have the man.” The delegates thought that a direct election would prejudice the smaller states, but what concerned them was that candidates from small states could not get elected because the parochial electorate in the large states would favor candidates from their states and those large-state votes would overwhelm the candidates from small states. (Reminder. In the last presidential election, Trump was then a lifelong resident of a large state, but New York overwhelmingly voted against the hometown boy. Perhaps the Founders were not familiar with the adage, “Familiarity breeds contempt.”)
Madison also maintained that a direct vote would undermine the South. Many northern states had eased the traditional requirement that only white male citizens who owned property could vote by allowing white males who paid taxes also to have the franchise, and in New Jersey, even women had the vote. Madison recognized that the “right of suffrage was much more diffusive in the Northern than the Southern States.” A higher proportion of people in the North could vote than in the South, and the South’s power would be diluted by a direct election.
Madison and others maintained that an electoral college, however selected, would obviate some of the concerns of a congressional selection. The electors would be chosen for only one purpose and would meet just once, and in the adopted version, not meet together but in the separate states so that there would be little opportunity for cabals, intrigues, and foreign influence.
An electoral college, however, does not necessarily alleviate the small-state concerns. Today many see the founders protecting the small states by giving them a slightly greater number of electors than is justified by their populations. The founders, however, addressed the small-state problem in a different way. The concern was that a candidate from a small state, even if worthy, would inevitably lose because the large-state electors would vote for one of their own. The solution: each elector would vote for two people, one of whom must not be from the elector’s state. The delegates thought that while one vote may go to someone from the home state, the second vote would be for the person seen as the best in the rest of the country, and if that person was from a small state, he could be elected with a collection of second-choice votes.
The Founders added another “accommodation to the anxiety of the smaller States,” as Madison wrote in a letter in 1823. If no person got a majority of the appointed electors, then the House of Representatives would choose the President from the five highest on the electoral list with each state having one vote. The largest and smallest states would be equal in this process, which, according to Alexander Hamilton in The Federalist Papers, would be “a case which it cannot be doubted will sometimes, if not frequently, happen.”
That Senators as well as Representatives were included in determining each state’s electors may seem to have been a major protection of the small states, but delegates knew that the large states would dominate the Electoral College. Luther Martin writing to the Maryland Legislature after the draft Constitution was promulgated but before it was adopted said that the “large states have a very undue influence in the appointment of the President.” Gouverneur Morris, a delegate to the Constitutional Convention, writing in 1803, noted that it was recognized that the large states would dominate the Electoral College. Only if the matter went to the House of Representatives did the small states have a substantial voice in the presidential selection.
(concluded October 30)