In both 2000 and 2016, an election anomaly occurred that had only happened once before in American history: The victor in a presidential election got fewer popular votes than the loser, because he won a majority in the Electoral College.
Predictably, the losing party screamed that the system had failed, that democracy had been subverted.
Well, not really. Actually, the system fulfilled its original design. And what was that?
The system intentionally privileges representation by individual states over naked, direct popular vote.
As we approach this November’s election, fears have grown that it could happen again. To explore this highly relevant and contested issue, I want to take an unusual detour. Picture this scenario . . .
The infection threatened to shut down the government, as officials contracted the disease or fled the national capital. As it spread, terrifyingly, the poor felt the ravages most and kept others at a distance. Folks on the street donned vinegar-soaked masks. Twenty thousand residents fled the city. Four thousand died. The overworked secretary of the treasury, then his wife, sickened. Despite a surprisingly swift recovery, he, too, determined he had to take his family away.
Government hit pause. Economic activity shrank. Medical authorities disagreed on treatments. The disease further polarized the already divisive partisan politics.
Sound familiar? The year was 1793. The capital was Philadelphia. The epidemic was yellow fever. The secretary of the treasury was Alexander Hamilton (whose biographer, Ron Chernow, recounts the tale in the book that inspired the musical).
If the parallels seem remarkable, clear differences must also be noted. The slower instruments of public information, to say nothing of the primitive level of medical knowledge, meant no coordinated science-based response could be mounted.
Yet visualizing that vastly different world can help us, believe it or not, understand the Electoral College.
Yes, it’s quite a leap of logic and topic. But in 2020 as in 1793, a public health crisis intertwines with partisan politics. As today’s pandemic continues to roil societies and economies worldwide, it has become a central talking point in the presidential campaign. National anxiety over Covid-19 — and its economic and social consequences — bleeds into sharpened fears and hopes as a momentous presidential election looms. People, politicians, and pundits alike worry whether the ancient system for choosing a president will serve us or subvert us.
So on this Constitution Day 2020, I want to take a close look at the oddly named Electoral College — both the reasons the framers of the Constitution created it, and whether any of their reasons still apply.
Most obviously, the Constitution of 1787 was drafted in a different time. A time when political leaders in the 13 states could (and did!) correspond regularly and read one another’s newspapers, but rarely had occasion to meet face to face. The Electoral College was designed to offset that difficulty. Two hundred thirty-three years later, has it become not a help but a threat? Should we view it today, metaphorically, as an infection to be cured or as a vaccine against a continuing threat to the body politic?
Should we keep it, reform it, or abandon it?
*United States Constitution
Back then: Why
The Constitution’s framers had to balance conflicting fears as they invented a structure of representative government — a “republic.” First was the specter of the “tyranny” of Britain’s monarchy, against which they had just rebelled. But the opposite fear, even more recently experienced in an uprising in western Massachusetts, Shays’ Rebellion, was that too weak a national government would breed disorder and disintegration.
Their brilliant solution was a system, as everyone knows, of checks and balances — in two directions. Horizontally, “separation of powers” spread national authority across legislative (Art. I), executive (Art. II), and judicial (Art. III) branches to prevent any governmental function from overextending its authority. Vertically, “distribution of powers” between central and state governments (“federalism,” as detailed in my 2005 essay) would preserve liberty against both fragmenting local impulses and centralizing national power.
An underlying nightmare loomed in the framers’ psyches, based on their own education and experience. What if a particular interest — a populous state, say or a conniving faction — manipulated its way to power, then ganged up on minorities like smaller states or factions less skilled in intrigue?
Such a scenario seemed especially plausible in choosing a national chief executive. Most voters would not know the candidates adequately enough to properly weigh the options. Popular judgment simply could not be trusted. Well-read and well-connected state leaders surely would be better informed and exercise better judgment.
So the framers created a federal mechanism to empower local citizenry yet guard against a takeover by what today might be called “populists.” They rejected any centralized unitary regime run by a kinglike ruler. Individual states remained real, if subsidiary, sovereignties (not mere geographic subdivisions, like counties). But those states would have to vie for their respective interests by somehow appealing to a general good, thus balancing majority rule and minority rights.
Accordingly, the states indirectly, not the people directly, would choose the president. All states, large or small, original 13 or new admits, would have a minimum say, though more populous states would gain proportionately more electoral votes. It might be summarized like this: In November is the election for the president; in December, when electors cast their ballots, is the election of the president.
This would be the American answer to the British parliamentary system, so susceptible to corruption and self-serving cabals.
In sum, the Electoral College was designed both to respect state integrity and to insulate the choice from the momentary whim of voters. Like much of the American system, it’s a realistic and carefully reasoned compromise.
But is it undemocratic?
That depends on how committed Americans still are to some original premises.
The foundational logic of the American system
The United States is a democracy, we say — a government of, by and for the people (as Lincoln memorably described it). But few pause to think about how the American system conceives its government to function democratically — “by the people.”
As we have noted, it is a federal democracy. Whatever one’s view of government responses to the pandemic, the American system of federalism — reserving some authority to officials within states — was on full display. Governors and state health officers managed the response and sought advice and aid from one another. Yes, federal inaction and state-based action have both sparked criticism, and, yes, the balance between national and state power remains contested on many fronts. But decentralized exercise of power is a historic, intentional, and still relevant core aspect of the continent-spanning U.S. federal system.
It is also a representative democracy. From their states, citizens elect agents, if you will, to do the governing. Unlike the classic town meeting, Americans do not rule themselves through a direct or “plebiscitary” democracy.
This representative system became fully embodied in the legislative branch, but in famously counterbalanced ways. The “lower house,” or “people’s house,” the House of Representatives, would represent states, but in proportion to their population. Indeed each state would split itself into districts of roughly equal population, each with its own representative. That’s why Californians today elect 53 House members — nearly one in eight — while Delaware chooses but one. Against this population-based representation, the framers set up the Senate, representing whole states, two to each. California gets two, and Delaware two. This is basic civics, but it’s worth reviewing.
That’s why, by the same logic, we elect the national executive indirectly from states, by choosing pledged “electors” — as many in each state as the total of their senators and representatives. Adding in three more electoral votes granted by the 23rd Amendment to residents of the District of Columbia (the same number of votes as if they were a state) yields a total of 538 electors — 270 to win (50% + 1).
This federal republic is, truly, of the people, and hopefully always for the people, but only indirectly by the people. The Electoral College keeps faith with that logic.
Today: Why not?
At a surface level two quirks about how those electoral votes count have been questioned. First, each state in its sovereign status gets to decide how its votes will apply. Ever since the early 1800s, most have opted for winner-take-all: Whichever presidential ticket gets the most popular votes (even if not 50% of the total votes cast) gets all the electoral votes. Second, the Constitution assumes those electors might exercise judgment in casting their vote, though in practice almost always those faceless electors pledge to a particular candidate and vote that way.
But not always. Rogue electors on occasion have tried to game the system, as recently as 2016. Several chose to cast their ballots for someone other than the ticket they had pledged to, including three in Washington state. Just this past July, the Supreme Court affirmed that states could by law insist that electors vote as pledged.
More fundamental indictments of the system range widely. Many of these, frankly, seem self-serving, trying to justify partisan advantage or disadvantage. Even so, the critiques must be given their due. The math does allow the presidential winner to garner fewer popular votes than the loser.
Another reasonable complaint undermines one of the concerns of the 1787 framers: Information now available to voters would seem to eliminate the worry that the Electoral College members would be better informed than the average citizen. (The cynic dismisses this by wondering how many voters choose based on knowledge, reason, and virtue, rather than emotional responses to manipulative spin.)
Among other dispassionate objections, the system is criticized because it over-weights less populous states at the expense of more populous ones. (But even that argument is constitutionally suspect, because the same can be said of the Senate, and pragmatically risky, as we shall see.)
Today: Why still?
Granting the critiques, yet recognizing the basic fit of the Electoral College into America’s constitutional system of a federal republic, is it possible to sort through the arguments to weigh the merits, and perhaps discern alternatives that serve justice but reject naked partisan crusading?
If needed, a precedent for change does exist. The 12th Amendment (1804) tweaked the process by mandating separate ballots for president and vice president. This reform fixed the flaw revealed in the results of 1800: A tie that forced the House of Representatives to choose between the intended presidential nominee, Thomas Jefferson, and the intended vice presidential nominee, Aaron Burr.
But Constitutional amendments are rare and hard. That’s a good thing. A story told by the British wit, G.K. Chesterton, offers a caution to those who would get rid of a longstanding structure like the Electoral College. A traveler comes to a village and notices an apparent oddity: a fence blocks a road. “Why?” he queries a local. “No one remembers,” is the reply, “so we’re going to tear it down.” “That’s precisely why you shouldn’t,” says the visitor. “It was erected for logical reasons at the time. Unless you know those reasons, and know they no longer apply, you should leave it up, to fulfill its original purpose.”
The Electoral College was created on reasonable grounds. Some reasons may no longer apply, but some remain.
To return to an earlier question: If the electoral vote contradicts the popular vote, isn’t that a violation of democracy? As we have seen, not if you define democracy in the American way: representative democracy, not majoritarian democracy. States still matter.
Drilling down farther, to eliminate the state basis of presidential election would thus be, in effect, to negate states, and thereby overturn the American federal system. That means undercutting the role of states as a check on national power. And that means catering to a current majority sentiment. But such dominant views may eventually slip into minority status, and need protection from the new majority.
Pragmatically, rural areas would be completely disfranchised. Campaigning would target not swing states, but swing cities. An already polarized country would become more so. The influence of money would loom even larger than now. Manipulative advertising would sink into even more misleading propaganda. Parties in power at the state level would try even harder to gerrymander their districts. An absolutist conquest mindset would worsen.
And these are not even the worst possible consequences of willy-nilly change.
I can imagine a nightmare scenario that convinces me that the Electoral College system must be retained. No, not Russian interference or failure of a mostly mail vote or delay in when the winner is known. Not even fraud or refusal of the declared loser to accept the result. Not even the fact that if the nation were to opt to amend the Constitution to elect by popular vote only, it would effectively repudiate the federal system.
Rather, my fear is what happens the next time there is a very close popular vote, too close to call. Imagine the paralysis, recriminations, lawsuits and flat-out refusal to accept the result if a national recount had to be held. Results in every precinct in the country would have to be retabulated.
In many states, a result with less than 1% separating the candidates requires a recount. In presidential elections such a hairbreadth popular vote margin is as likely as a landslide. Only four times (1920, 1936, 1964, 1972) has the winner garnered more than 60% of the popular vote. Conversely, the popular vote margin was less than 1% on a matching four occasions (1880, 1888, 1960, 2000).
Reassuringly, the Electoral College anomaly of 2000 and 2016 is even rarer: Only one other time (1888) has the eventual winner lost the popular tally (in 1824 and 1876, no one got an Electoral College majority, requiring resolution according to the 12th Amendment). On the other hand, in fully 20 elections the victor failed to win 50% of the popular vote (i.e., more than half voted against him) while winning the electoral vote.
The Electoral College system allows a necessary recount to be confined to one or two states, such as Florida in 2000. (Recall that even that single-state recount took weeks, controversial reviews, and ultimately a Supreme Court ruling.)
Relying on the popular vote alone is fraught with risk. A full national recount could lead to full national chaos.
Unless, that is, the supposed losing candidate simply congratulated the ostensible winner and let the contested result stand. Never happen, you say? Probably not in today’s polarized climate. Nor in 1824 (Andrew Jackson’s partisans made it impossible for winner John Quincy Adams to govern). Nor in 1860 (when Southern states seceded rather than live under an Abraham Lincoln presidency). Nor in 2000, when the Al Gore campaign took the Florida count to the Supreme Court.
Ironically, it did happen in 1960. John Kennedy’s electoral vote margin was a comfortable 16 points. But his popular vote advantage was microscopic, and results in Illinois and Texas by most accounts were suspect — enough to sway the electoral vote. And the losing candidate who conceded rather than challenging the tainted results? Richard Nixon, of all people — he of later Watergate notoriety.
Today: What might be done?
Several reforms could be carefully considered without violating the state-based system of the Constitution. Indeed, at the state level better objective education and enhanced election security could inspire more confidence in the system.
One minor tweak would be to eliminate what is usually a mere formality: the actual casting of votes by the Electors themselves. Just use the numbers. That erases the risk of rogue electors.
A further reform along this line would be more drastic: assigning electoral votes according to the margin of the popular vote rather than winner-take-all. But that risks reducing the national impact of states where the party balance is lopsided, so it probably could never pass in those states.
A halfway variation on this does exist. Nebraska and Maine keep faith with the basic system, but perhaps reflect the intent of the Constitution even more closely than the other 48. Each assigns an elector to each Congressional district: win in that district, as Barack Obama did in the Omaha area in 2016, and you get that one electoral vote even if you lose the state. In both states, two electoral votes are reserved for the statewide winner. It may sound fairer, but it may not change anything. Only once in each state has the electoral vote been split.
Perhaps a worthy first step is to give all voters a deeper sense of the system’s purpose, and thus a richer appreciation for the Framers’ genius in balancing states and nation.
Responses to the pandemic, as suggested above, offer heartening assurances that they got federalism right in 1787. Governors stepped in to impose anti-infection disciplines in their respective states, in immediate response to localized flare-ups. However one wishes to assess those responses (and those of the president), one cannot say the federal system is no longer relevant.
States matter. And the Electoral College — if not a potent vaccine, at least not a deadly infection — is just one more evidence of that American constitutional reality.
*“The Constitution of the United States.” National Archives and Records Administration, National Archives and Records Administration, www.archives.gov/founding-docs/constitution.