For the last three
plus years many Democratic and Independent political observers have been trying
to figure out how Donald Trump was elected president of the United States. Because the Electoral College was the vehicle
that appeared to allow his victory, a large chorus has arisen demanding its
abolishment. People should be careful what they wish for.
In a recent opinion
piece in the New York Times, a member
of the newspaper’s editorial board described the Electoral College as “a
233-year old institution cobbled together at the last minute by a few dozen men
who had never elected a president before, and built a country where the vast
majority of people were denied the right to vote.” Rarely, do you read such a
hostile view of the framers of the US Constitution. True, they were not generous with the
franchise, but the degree of self-government embodied in that document was
substantial in the context of the times. And the Electoral College was hardly
“cobbled together at the last minute.”
The fifty-five men
who convened in Philadelphia in May 1787, accepted a monumental challenge when
they set out to craft a real national government for the original thirteen
American states. They had to overcome a broadly shared reluctance among the
states to yield power to a central government as well as a general suspicion of
executive authority in any form. But fear that the new nation would succumb to
internal economic chaos and to external threats from foreign adversaries
embolden the framers to act.
Enduring a long hot
summer in Philadelphia, they first established a bicameral legislature including
one house in which representation was based on population, with the added
requirement that each state would have at least one representative, and a second
house in which there were two members from each state regardless of population.
When it came to the executive branch, two concerns came in to play: 1) how to
insure there would be some equity among the states regardless of population in the
choice of an executive, and 2) how to guard against the danger of a demagogue achieving
power. To answer those concerns, the framers created an indirect representative
process by which a president and vice president would be elected. Thus was born
the Electoral College.
Although the same
formula that determines membership in the Congress shapes the Electoral College,
the framers sought to maintain clear separation between the legislative and
executive branches of the new government. Therefore, no sitting member of
Congress nor any other official of the US Government may serve as an elector. Skepticism
about the ability of the general population to make informed choices for public
officers as well as the desire to give some recognition to state sovereignty
led to the framers to give the individual states control over the manner in
which electors are chosen and how their votes are allocated in each state. These
provisions remain in place today.
Originally, each
elector cast two votes and the top candidate with the highest number of votes
from a majority of electors was elected president and the candidate with the
second highest number of votes from a majority of electors became vice
president. This created problems in 1796 when the two winners were from
different political parties and again in 1800 when presidential nominee Thomas
Jefferson and his Democratic-Republican running mate Aaron Burr received the
same number of votes. It took 36 ballots for the House of Representatives to
resolve the stalemate in Jefferson’s favor.
Shortly thereafter, the Twelfth Amendment to the Constitution was
adopted requiring electors to vote separately for president and vice president.
Prior to the election
of 2000, there were only three elections (1824, 1876 and 1888) in which the
candidate receiving the most popular votes for president lost; only the 1888 decision
can be blamed on the Electoral College. Of the twenty-four states in existence
in 1824, a popular vote was not allowed by seven, including both Carolinas. In the
1876 election, returns from three Southern states, Louisiana, Florida and South
Carolina, were challenged along with a single disputed elector from Oregon. The
popular vote winner, Samuel Tilden, lost as result of a bipartisan
congressional commission ruling in favor of Rutherford Hayes, part of a deal
ending Reconstruction in the South. The
Electoral College did thwart Grover Cleveland’s re-election bid in1888, handing
the presidency to Benjamin Harrison despite Cleveland popular vote edge.
The fact that there
were 112 years and 25 presidential elections before another conflict occurred
between the Electoral College results and the popular vote indicates factors other
than the structure of the Electoral College itself are responsible for our
recent donnybrooks. Three circumstances deserve
our attention: population growth and distribution, the election strategies of
the two major political parties and the winner-take-all allocation of electors.
When first adopted,
the discrepancy between the influence of the smallest state and the largest in
the Electoral College was not nearly as great as it is today. Total US population in 1788 was estimated at
3.9 million. The smallest state, Delaware, had a population of around 60,000
and three electoral votes. Virginia, the
largest state, was given 14 electoral votes with a population of 748,000. The
latter’s 300,000 slaves added significantly to its population thanks to the
infamous three-fifths clause, which was not part of the Electoral College per
se. Five other states had populations of over 300,000, four had between 100,000
and 300,000 and two others below 100,000.
Mathematically speaking, an elector from Delaware represented
approximately 20,000 people, one from Virginia represented about 53,000 people.
As the chart below
indicates, the discrepancy today is far greater. And the gap is growing
rapidly. One estimate indicates that by 2040, only eight states will have half
the US population. Not only is the population growing exponentially, but it is
continuing to be concentrated.
The impact of the
increase in population has been exacerbated by the fact that the number of
voting members of House has been fixed since 1911. Up until that time in order
to insure each state had at least one representative and to allow states to
retain their existing representation, Congress increased the size of the body
after each census. Given the link between congressional representation and the
number of electors for each state, this practice helped maintain some balance
of power among the states in both the House and the Electoral College.
Since 1911, the US
population has grown from 92 million to an estimated 332 million. Obviously, the resulting sense of unfairness
has undermined respect for both institutions. Correction of the problem
requires drastic action. If the House ceiling were removed, the number of
voting members could grow from 577 to little over 600 depending upon the system
of apportionment used.
TEN LARGEST STATES
STATE POP(m) % REP POP(k)/REP EC
POP(k)/EC
Calif 39.5 12 53 745.5 55
718.4
Texas 29.0 8.7 36 805.4 38
763
Florida 21.5 6.4 27 795.5 29
740.6
New York 19.5 5.9 27 720.5 29
670.8
Penn 12.8 3.9 18 711.2 20
640.1
Illinois 12.7 3.9 18 704 20
633.6
Ohio 11.7 3.5 16 730.5 18
649.4
Georgia 10.6 3.2 14 758.4 16
663.6
N. Carolina 10.5
3.1 13 806.8 15
699.2
SUM 167.8 50.6 222
(438) 232 (538)
FOURTEEN SMALLEST STATES
STATE POP(m) % REP
POP(k)/REP EC POP(k)EC
Wyoming 0.578.8 0.17 1 578.8 3 192.9
Vermont 0.624 0.19 1 624 3 208
Alask 0.731.5
0.22 1 731.5 3 243.8
N. Dakota 0.762.1 0.23 1 762.1 3 254
S. Dakota 0.884.7 0.27 1 884.7 3 294.9
Delaware 0.973.8 0.29 1 973.8 3 324.6
Rhode Is. 1.059.4 0.32 2 529.7 4 264.8
Montana 1.068.8 0.32 1 1.068.8 3 356.3
Maine 1.344.2 0.40 2 664.2 4 336.1
N. Hampshire 1.359.7 0.41 2 658.2 4 339.9
Hawaii 1.415.9 0.43 2 680.2 4 354
W. Virginia 1.787.1
0.55 3 617.7 5 358.4
Idaho 1.792.1 0.55 2 783.8 4 446.5
Nebraska 1,934.4 0.58 3 608.8 5 386.9
SUM 17.316.5
4.93 23 51
The two most commonly
discussed methods mentioned are the “Wyoming” rule and the “cube root” rule. In
the former, the total population of the nation is divided by the population of
the state with the smallest population and that number determines the size of
each congressional district. In the later, the cube root of the total
population is determined and then reduced by 100, reflecting the size of the
Senate. Although these numbers may seem
high, the Bundestag in Germany has 709 members. Germany’s population is about
twenty-five percent of the US.
Distribution of the
growing population has not been uniform across the country. It has been
concentrated in urban areas, generally along the coasts. In response, both
major political parties in recent years have chosen to emphasize election
strategies focused on maximizing turnout of known supporters instead of
attempting to broaden their base. This intensifies the various political divides,
urban v. rural, suburban v. both, labor v. corporate management, agriculture v.
manufacturing, pro-life v. pro-choice, etc.
As a result some
states are almost totally ignored by the lesser party within that state. In
most presidential contest today only about a dozen states are considered
potentially competitive, so campaign attention is concentrated on those states.
If that mindset is unchanged, any reform of the Electoral College, or even a complete
transfer to popular vote will be for naught.
The winner-take-all
allocation of electoral votes also contributes to the rigid division among the
states today. Under this system, the winning slate of electors in a state, even
with only a plurality of the popular vote, wins all the state’s electoral
votes. Forty-eight of the 50 states follow this allocation method. Only Maine
and Nebraska use an alternative system, awarding two votes to the winning
candidate statewide and one vote to the winner in each congressional district.
In the winner-take-all
system, the votes of the losing candidates are simply wasted. This also
discourages political participation down ballot by minority party members and
suppresses turnout in general. Even the likely winning presidential candidate does
not paying much attention to those states where there is little doubt about the
eventual outcome.
There is no constitutional
requirement that electors be allocated on a winner-take-all basis. Allocation
of electors has been left strictly up to the individual states. Under the Election
Clause of the Constitution (Art. I, Section 4), however, Congress has significant
authority to impose changes in elections laws without resort to the constitutional
amendment process. A uniform date for holding federal elections was established
in 1845 by congressional statute, and in 1967 legislation was passed requiring
single-member districts for the House. Congress may also challenge the
winner-take all method under the “equal protection” clause of the Fourteenth
Amendment.
Several proposals
have been suggested as alternatives to the winner-take-all system, usually
involving either the distribution of electors on a proportional basis or on a
congressional basis or on a combination of both. Neither a proportional or
congressional based system of allocating electors would guarantee victory for
the popular vote winner, but given the history of the Electoral College thus
far, either would insure greater convergence between the popular vote and the
Electoral College result. It is likely that both methods would enhance voter
participation since votes cast for the losing candidates would not be wasted.
This also could have a positive effect on competition for down ballot offices
within the states.
A more speculative
scheme for overcoming the winner-take-all practice is the National Popular Vote
Interstate Compact, currently supported by 15 states and the District of
Columbia. Participants would commit to have their electors vote for the popular
vote winner in the presidential election regardless of the vote of their
citizens. At this point the compact does not go into effect until participants
representing 270 electors are committed. It remains to be seen as to whether
state officials would have the temerity to instruct their electors to vote for
a candidate their citizens had rejected. In any case, it does not address the
current unfairness in the institution and would do nothing to encourage
competition for down ballot offices.
Clearly, the
Electoral College structure is discriminatory, but it is not the ogre it’s
critics claim it to be. Eliminating the institution and going to the popular
vote for presidential elections will not address the basic conflicts that exist
today in America’s political environment. Some reforms might be worthwhile,
eliminating the winner-take-all allocation process for sure, and adding more
representatives and electors would help reduce the imbalance between small and
large states.
The states serve an
essential function in our political system. They manage specific areas of governmental
responsibility and they provide critical oversight to local government as well.
Most federal programs are implemented through the states. And no matter what happens
to the Electoral College, the Senate will continue to be state-based with equal
representation across the board. Ultimately, it is up the political party
system to develop election strategies that can overcome the chronic dysfunction
that plagues the US today.
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