The Electoral College: Don’t Abolish It, Change It

Without question, the Office of the President of the United States is the most powerful position ever held by a single man. Only forty-three different men (Grover Cleveland having served non-consecutive terms) have been entrusted with such authority over the 223-year history of the office. Accordingly, the men who created the position sought to ensure its occupant was selected carefully and fairly; they wanted a chief executive that reflected the will of the majority without threatening the rights of the minority or the structure of our federated, constitutional system of government.

All told, the system they erected was largely effective to that end – after all, the union they established continues today despite the steady erosion of constitutional limitations on the government itself. But the Electoral College, as the Framers intended it to operate, was one provision that never truly achieved its purpose. Surely, it has served as a relatively sound system of selecting the president throughout its existence, but like the Constitution as whole, it is not perfect and ought to be redesigned.

According to the Constitution, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…” (Article II, § 1, clause 2). Prior to the emergence of political parties, the electors were, theoretically, unbound. They could (and ought to have) cast their votes for whomever they felt was most appropriate for the office of the presidency (assumingly, though, out of the men who were actively seeking the office). At the time, the men who received the second greatest number of electors became the vice president. The intent of the Electoral College, as Hamilton and Madison outline in the Federalist, was to dampen the “spirit of faction” and other temporary “passions” of the voting population. In the same manner as having Senators selected by the legislatures, having the president chosen by designated electors (who were supposed to be well-respected within the state or community) could mitigate “a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project” (Madison, The Federalist, No. 10).

By design, the Electoral College intentionally gives disproportionate representation to those living in sparsely populated states (again, like the Senate), providing a rather effective bulwark between the wishes of the majority and the rights of the minority. Though the public could still select electors who reflected the potentially irrational attitudes of the public itself, the risk is diffused. A simple majority of voters could not merely agree on any given policy position, nor even candidate, in order to enact irrational policies – they must also agree upon the man who will represent that position in the Electoral College (who, if deemed a man of thought and cool intellect, could ideally be much less affected by fleeting “passions” than the initial voters).

As far as personal knowledge extends on this subject, this model for the Electoral College only functioned as intended in the selection of a single president: George Washington, who was unanimously chosen by the Electoral College twice before retiring from politics voluntarily in 1797. Since the election of 1796, electors generally pledged allegiance to one party or another – indeed, electors probably even pledged to vote for Washington rather than truly serve as free agents acting in the interests of the public will (many citizens did, after all, select Washington as their candidate of choice at the polls, per the electoral structure of their respective states).

This alone does not produce a problem. Rather than selecting the president in an entirely indirect manner, the voters can cast a vote for an actual candidate which, in turn, will lead to the selection of an elector who will do the same. Though some may complain that this makes the Electoral College superfluous, arguing that there is no reason not to have a simple direct election if the electors themselves are pledged to a candidate, this is not a “defect” any more than is the notion that the Electoral College limits the ability of the majority to enact its will. Rather, that’s the point.

As the Framers were clearly aware, the “will of the majority” is not moral dicta. 51% of the population has no legitimate authority to enslave the other 49% (or, as is the more modern argument, the 99% has no legitimate authority to enslave the 1%). The perennial problem of republican governments is, in fact, balancing the will of the majority and the rights of the minority – a problem which for the most part, the Framers took great strides to solve. They wove into the fabric of our political structure certain safeguards against a “democratic tyranny”: multiple branches of government with separate powers (often ones which could not be used unilaterally); a divided legislature with a Senate in which seats are allocated equally across all the states regardless of population, requiring that legislation be popular across a vast and diverse geographic expanses rather than by a simple majority living in populous states; a process for amending the Constitution which requires the assent of two-thirds of the membership in both houses of Congress and three-fourths of all the state legislatures; etc.

When determining how the governing apparatus of an entire nation should operate, a simple democratic majority is insufficient.

That said, the current nature of the Electoral College grants undue authority to a few select states. Rather than merely providing a safeguard for the minority, the system itself has squelched the opinions of millions of American voters living somewhere other than Ohio or Florida (et al.). Millions of voters in California are quadrennially doomed, by virtue of where they live, to have their state’s Electoral College delegation support the Democratic nominee – and certainly, there are analogous situations in which Democratic voters in states such as Texas suffer the same fate. Though there should be measures in place to prevent sudden and violent surges of voter sentiment in one region of the country from overwhelming the voters in another, the system itself has become an enemy to its own purpose – it has squelched the attitudes of a single voter in favor of those of his two differently-minded neighbors, and thus has cast a collective ballot for all three.

In all but two states (those of Maine and Nebraska, not exactly diverse in their voting demographics anyway) electors are decided by a winner-takes-all system. Whoever wins the assent of the majority within a single state is unjustly granted the assent of all. Assume, for argument’s sake, that the presidential race in Ohio was determined by a single vote. Should all those millions in the minority be usurped by a single vote? Certainly, that single vote was the determiner for the majority, but does this mean the voice of the minority is now irrelevant? Or even more directly related to the Electoral College itself, should the fate of Republican voters in California be decided every four years by those in Ohio, when their own voices were not heard in the first place? Decidedly not; as stated, vox populorum, vox Dei is no moral mandate.

Some fail to identify this as a problem. Rather, they believe that the winner-takes-all systems in place throughout a majority of the Union are an effective barricade to anti-republican “passions.” The Electoral College, they argue, prevents politicians from trying to inundate the polls with supporters in a minute number of significant locations such that they tip the scales, disregarding the rest of the nation. They maintain that under a direct election, a candidate like President Obama would not need to appeal to the nation as a whole but rather just to New York City, Boston, San Francisco, Los Angeles, etc. If he incites enough of them to march on the polling stations, these rather homogenous voters could, in their “passion,” decide the fate of the entire nation before other voters recognized the urgency of the situation and the need to allay it. This is a weak argument for two reasons: first, the current design of the Electoral College already has candidates appealing to voters in select areas for support rather than the consensus of the nation as a whole, and secondly, it assumes that a direct election is the only alternative.

James Madison, Fourth President and “Father of the Constitution”

However, this argument does deserve some level of commendation. That was the precise logical reasoning which led the Founding Fathers to reject the notion of choosing a president via direct popular vote. As Madison states succinctly in the Federalist, No. 25:

“In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the sceptre from reason. Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob.”

Hamilton further elaborates in the Federalist, No. 70:

“The republican principle demands, that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breese of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.”

Such was why the minds who drafted the Constitution saw fit to produce a confederated republic rather than a national one; i.e., single union of several semi-sovereign republics (the states) which with power divided between themselves and a federal government which oversaw the affairs of the union as a whole. Though their intentions were flawed insofar as they believed the states themselves to have authority to enact any that was not expressly forbidden by the Constitution in Article I, § 10 or in Article IV, they were not wrong in the belief that the states as political entities could check one another. Thus, a “passion” in a single part of the country could not easily endanger the rights of those in another. At this point, reexamine the original quote from Madison in the Federalist, No. 10, but this time in its complete form:

“The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.” [Emphasis, mine.]

They structured the government such that sudden torrents of public opinion would not throw America’s proverbial “ship of state” off its course. Just as they designed Congress to ensure that any legislation would require careful consideration and rational argument before enactment, they structured our government so that irrational swells of “passion” in a single state might not be injurious to the others.

On this point, those who favor the Electoral College as it stands are entirely correct. Direct election should not favor the Electoral College. Instead, the Electoral College should merely adopt a different form.

While states like Massachusetts, New York, California, Texas, South Carolina, and my own home of Georgia can probably count the number of candidate visits they experience each election on their fingers, states like Ohio, Florida, Virginia, Iowa, etc. have suffer an unrelenting barrage for several months before Election Day. While voters in the states with preordained destinies have important local and statewide elections, slightly less than fourth-fifths of the states never experience significant presidential campaign presences from either party. The reason is simple: it is not valuable for candidates to spend their money appealing to the citizens of states whose outcome is already a foregone conclusion.

Case and point, the Electoral College already allows politicians to pursue the favor of voters in a select number of states. Couple this with the fact that, though all due defenses should be made against the “passions” the Founders sought to suffocate through geographic isolation, the political convictions of so many Americans are simply not accounted for in the winner-takes-all system in the majority of the states, and one cannot produce a solid argument for the continuance of the Electoral College as it now stands.

But before a solution can be reached, the heart of the problem must be understood clearly – to treat the symptoms rather than the source only allows for a cancer to fester and find new means to manifest itself. In this case, glitch in the system is easily found: the states were improperly granted the authority to determine the means by which electors are chosen.

At the time of its drafting, one of the most vociferous arguments against the Constitution was that it removed from the states many of the powers to which they were otherwise entitled as complete sovereigns. And indeed, it did, and properly so. The government which existed under the Articles led to countless abuses on the part of one state against its sisters, or even against the Union itself – excises on goods imported from one state to another, states pursuing a foreign policy independent of that of the Union as a whole, states refusing to enforce provisions of the 1783 Treaty of Paris, etc. The ensuing chaos of the Union’s inability to respond to insurrections like Shay’s Rebellion led the Framer’s to conclude that a “more perfect” union was necessary.

But again, many feared what would come of weakening the states toward the aggrandizement of a federal government. Even the Federalists (those in favor of the new government), either failing to see the opportunity before them or believing it to be the cause of a future generation, allotted the states far too much authority to govern their own affairs. At the time, even that monument to the individualist, rights-centered morality of the Founders known as the Bill of Rights only applied to the federal government. Though the states all had their own constitutions and variant forms of a “bill of rights,” they retained the all authority to ignore (should their own people call for it) the rights enumerated in the federal Constitution as inviolate – an authority which was not curtailed until the Civil War.

Man’s rights are unalienable – it matters not whether the government abusing them presides over an entire empire or a single region of it.

In any case, the power of the states to appoint electors “in such Manner as the Legislature thereof may direct” is improper. Whereas law should exist to provide an objective standard of defining, stopping, and punishing initiations of force between men, supreme constitutional law ought to serve as an objective standard for the regulation of the government itself – how its members are to be selected, the principles by which it should conduct itself, its just limitations, etc.

But the constitutional clause pertaining to the selection of electors is far from objective. Under its present text, if the legislature of a given state decided to select its electors based on appointment by the governor, it would not be prohibited. Nothing in the current structure of this law necessitates that average citizens be allowed to vote for the president at all. Absolutely, it would be absurd to believe that any legislature or member of it would be so politically suicidal as to pass such a measure, but that it is not precluded from doing so alone is worthy of attention.

From this lack of objective criteria by which electors should be chosen, there has emerged a fairly uniform policy across most of the states: individual citizens cast their ballots for their preferred presidential candidate, and the candidate with the highest popular vote receives that state’s total allotment of electors. The reason should be fairly straightforward. Though a state’s electors were commonly split between the candidates  in the earlier races, when political parties developed, these state-level parties found it self-interested to formulate laws which would ensure that their candidate received their state’s electors in totality rather than a mere portion of them. Thus, the winner-takes-all system was born. The other states soon followed, rightfully concerned that a winner-takes-system in another state unfairly repressed the chances of the dominant party in their legislatures to achieve the presidency. (This is not, however many libertarians would like to argue, an insulative practice by the two dominant parties to keep third parties from achieving  dominance; third parties would not enter into a state of prominence regardless.)

The natural remedy is to remove from the states their ability to determine how electors ought to be chosen and instead institute a uniform standard across the entire United States. This is where the careful balancing act between the will of the majority and the rights of the minority returns. Whatever system replaces the current, it ought to have the same goals in mind: preventing abrupt and dangerous sentiments from easily influencing the course of America’s federal government while simultaneously ensuring that too much discretion regarding the outcome of presidential elections is not given to too few.

Though not a novel idea, best structure for a reformed Electoral College should be thus: each state shall allocate those electors representing its membership in the House of Representatives based on the proportion of the popular vote each candidate receives; those electors representing the state’s membership in the Senate shall be allocated to the candidate receiving the greatest portion, plurality or majority, of the popular vote.

From this objective standard, all previous complications are solved. Those living in states with immense majorities for one party or the other will have the ability to still support their candidate and assist in his election; the candidates cannot rely on a single state or region to carry an entire election for them, as the number of votes that state has to give remains capped regardless of any “passions” which may lead to a sudden influx of voting within that state; each state, with those votes representing its Senate membership, may serve on the check on the aforementioned “passions” even if their House membership is minimal; the candidates must appeal to the entire nation rather than to the few; the majority’s will still reigns, though the rights of the minority receive all due defense.

Some may contend that this does not entirely prevent situations like the 2000 election in which the popular vote may differ from the results of the Electoral College. This is true, but the risk is negligible – even under the current winner-takes-all system, such a phenomenon has only occurred four times in the history of the United States. With the electors representing the membership in the House of Representatives (well over four-fifths of all electors), it essentially becomes a statistical impossibility.

Others may argue that the proportional allocation of votes representing House membership could open an opportunity for third parties of any number of abhorrent breeds to enter the race and gain electors. This argument, too, does not stand to scrutiny. Even allowing for the possibility of a given third party being geographically concentrated enough in any state to win any electors within that state (indeed, there are none at present), they would never draw remotely close to the ability of seizing the presidency. Duverger’s Law would still reign supreme even in this instance of proportional representation. Why? Because the seat in contest can still only be filled by a single candidate, and that candidate must win a majority of the Electoral College to succeed (or at least a plurality and then a majority of the House of Representatives). Regardless of if a select number of the politically ignorant feel compelled to vote for a third party candidate (not even in a rational context), they will eternally finish third – the party that consistently comes in last will never draw enough support from voters whose goal it is to have the best available representatives of their interests come in first.

The final possible critique – aside from those who unrelentingly desire the institution of a direct democracy in the United States – is that, in the event of a third party drawing an elector here and there, there could be an increasing number of situations in which there is no candidate who receives a majority of the Electoral College. Like the others, this is a non-issue. The Framers have already provided for such a situation, giving the responsibility of selection the president to the House of Representatives (the federal branch most responsive to the sentiments of the people) and that of selecting the vice president to the Senate (as, after all, his one role besides replacing the president in the event of his death or removal from office is to break ties in that chamber).

As with all issues regarding changes to the Constitution, this one will take a great deal of time. It will require methodically convincing each state legislature to relinquish some of their power (indeed, a power which benefits them to wield) to the Constitution. Before even that, it must navigate its way through Congress and achieve the requisite two-thirds majorities to be presented to the states (alternative means of ratification are too unlikely to be relied upon or expected). But no matter the time it takes to ratify an amendment to this effect, it is the right and just policy to pursue; thus, it ought to be.

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