The Electoral College: A Compromise Never Meant to Last
For the fifth time the Electoral College, the constitutional compromise principally forged to get slaveholder states to sign the constitution, elected the candidate with fewer actual votes than the popular vote winner. Again questions are being raised about why the framers came up with scheme. Is it time to do what all 50 states and every other democracy does – directly elect the president through the popular vote?
Having the loser of the popular vote win has never been the only, or the greatest of the college’s problem for a participatory and representative democracy. But before going there, it is helpful to reflect on the reality of how this artifact came into being in the post-revolutionary war push towards unification and self-government.
Where Did It Come From
The Electoral College emerged as one of many compromises designed to get all 13 original states to sign the Constitution in the transition from monarchy to a fledgling republic. One the most persistent myths is that it was meant to help small states. James Madison, architect and chief lobbyist for the constitution, made it clear then that its roots lie in fact not to protect “small states” but was one of several compromises between slaveholder states and free states. Madison remarked “states were divided into different interests not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from [the effects of] their having or not having slaves.”
The Electoral College built on another critical concession, “three-fifths rule”, to partially count non-voting slaves and boost the census number that would determine how many Congressional districts and therefore electors each state ended up with. Thus in the 1800 census, the state of Pennsylvania had 10% more free persons then the largest of slave states, Virginia, yet it ended up with 20% fewer electoral votes. With both the Electoral College and three-fifths rule, Virginia came up the big winner. Not surprisingly, a slave-holding Virginian won the presidency in the first eight of nine presidential elections.
On paper, small states get a small boost from the college. In reality, they are sidelined like any other non-battleground state. Consider the small states with only one Congressional district today – Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming. None were swing states in 2016, nor were they on the radar of campaigns or candidates. In any case, why should some states and some voters get a special advantage in the election for the president who is meant to represent every one? The Senate was created to address needs of small states, as were a host of rights and protections all states share.
Beyond conceding slave states an artificial advantage, the drafting of the constitution reflected an uncertainty about turning over the outcome of the presidential election to a popular vote. This held some logic at that time. While Madison and others favored the popular vote, some worried that with the seemingly great distances and slow or lack of communications of the era that voters couldn’t learn enough about the candidates to make an informed decision. Even with these hesitations, it is important to give them credit for taking the initial step of creating a popular election for the Congress. That was a bold move by historical standards, albeit in the context of a very limited franchise. the Electoral College only served to further incentivize keeping the franchise limited, as it still does today, especially in swing states where the stakes are high and fights over voter access continue.
Distorted democracy: Divided red and blue, battleground or sidelined
Having a national election decided by a small number of swing states rather the general population was problematic from the beginning. Over time it has divided states and voters into two tiers. The much contested swing states. And the rest of the country which is taken for granted. The irrelevance of most states – red and blue alike – has helped to drive bi-partisan support for reform in recent years. Votes and voters are devalued by where they live in contradiction to democracy’s most fundamental principle of one person, one vote affirmed again last year by a unanimous Supreme Court.
36 states and 2/3s of voters on the sidelines
Instead of a national election we have a presidential contest focused on the outcomes and voter preferences of a subset of swing states. This year it left close to two-thirds of the nation’s 231 million eligible voters residing in non-battleground states as spectators and outsiders. Most Americans watched ads aimed at boarding states. Campaign volunteers skipped their local contests to take weekends away from their state to travel to ones that decided the bigger prize. As a nation, we ended it all watching results of a handful of swing states and wondering whether votes in Florida’s panhandle, Virginia’s suburbs, Wisconsin’s rural vote, or Michigan’s Upper Peninsula would tip the balance.
All money and attention go to a handful of states
Campaigns target all their money and attention to few states. Consider this past election. Presidential campaigns and allied groups spent 99% of ad dollars in just 14 battleground states. Of 216 campaigns stops by presidential and vice presidential candidates, only a dozen took place outside of swing states. Four super states alone – Florida, North Carolina, Ohio and Pennsylvania – had 57% of all visits and 71% of the ads!
The presidential election turns out to be a party most of us, 147 million eligible voters this year, weren’t invited to, except to ratify our state’s likely results and to watch the real contest unfold on TV or online.
Grassroots democracy sacrificed
Through this process, we lose the essence of democracy – neighbor to neighbor, peer to peer politics. We miss the chance to fully engage in elections as a voter or campaigner in our own backyard, and to have local media focus on our local races or ballot measures as well as national trends. We miss the incentive to start a conversation with a neighbor or friend regardless of where they live.
Our nation’s newest voters lose the most. campaigns focus their resources and voter contacts on likely voters and swing states. This concentration of competition within a few states is one reason more than half of Americans report never being personally contacted by a major campaign about voting. For 18-35 year olds it jumps to three of four young people never being contacted.
Divided red and blue
The Electoral College drives another source of civic polarization in an election decided by states rather than the nation as a whole – the division of red and blue states. This is something our farmers could not have predicted, nor did they have time to concern themselves with this possibility under the weight of war debt and a constitution to ratify. Yet, these divisions persist between election years. We form opinions about various states and their inhabitants, without considering the diversity of views that exist in any state. The colors have become “a proxy for all the differences in values and lifestyle that seemed to be cleaving the country into warring tribes.” A focus on state voter turnout, rather than state partisanship, might make for a healthier civic exercise, harnessing the citizenship benefits from active and informed participation in all spheres.
Votes don’t really count
Finally, people living in non-battleground states have come to learn that their vote really does not matter, and that has a very unfortunate impact on voter turnout. Voter turnout in non-battleground states is on average 5-8 percentage points lower than in battleground states. If we want to foster a more engaged electorate – in every state, in every county, and in every precinct – then we should send a clear message that the vote of every citizen matters, regardless of where they live.
National Popular Vote
Pennsylvania’s James Wilson – a major force behind the Constitution and one of six chosen by Washington for the country’s first Supreme Court -proposed the presidency be decided by popular vote. It became clear that wouldn’t work for slaveholder states or those favoring at the time a more elite model of choosing the president.
Lately some have suggested alternatives that work within the framework of states. Most commonly what Nebraska and Maine already do – allocate the electors by district and allot Electoral College votes to the winner of each district. This can have the small effect of putting a few sections of a state in play. The two congressional districts around Omaha, Nebraska and northern Maine made the list this year as battleground votes. Given deeply gerrymandered districts drawn to create safes seat for the two major parties, it’s a non-starter as a national solution. Only 37 of 435 congressional seats were considered competitive for 2016. You could color in the winner of 90% of the districts well in advance of the general election, making the problem worse, not better.
The popular vote is the standard used by all 50 states for governor and every other election, the same way it is for every democracy that directly elects its leaders.
What do people say are drawbacks to a popular vote?
One is the contention by some that less populated areas will be passed over or big cities will dominate.
The reality is that The large majority of Americans live in suburbs or rural areas. All voters of every kind of political leaning who must be appealed to. Compared to what happens now, campaigns would have to compete in far more media markets both large and small in all parts of the country. America’s largest 50 cities only represent 15% of the U.S. population.
In the larger scheme, things have changed since 1787. Information disseminates everywhere and through multiple channels. But more to the point of democracy, beyond the media, in a national vote there’s a greater incentive for people, campaigns and civic organizations to engage with neighbors, friends and voters locally and across states where engagement, education and democracy really happens.
A national election brings the challenge and potential cost of a national recount. The popular vote margin was less than one percent in six of our 58 presidential elections and could have triggered a recount. Our large states already manage this. In addition, the changes made by the Help American Vote Act in 2002 have improved balloting, audits and recount procedures and progress is ongoing. The infrequency of recounts gives us time to spread out the cost. It’s something to plan for. Democracy and full participation of all citizens is worth it.
How do we replace the Electoral College?
One way is a constitutional amendment. It would take either a two-thirds vote in both the House and Senate or a vote of support by two-thirds (38) of our state legislatures. This poses special challenges in the case of the Electoral College that affects some states more than others. Though perhaps not as much from small states that the historical record shows are not necessarily against a popular vote. More likely from political elites who find it easier to manage a national election in a few states. Or from swing states themselves. , Why forgo the extra revenue from being targeted (though spare me the phone calls) or extra support from federal programs by the parties wooing your highly valued elected leaders and voters for the next go around.
Article Two of the US Constitution provides another route. It is based on the power vested in states to instruct how their Electoral College electors are appointed. Article two says each state shall appoint, “in such manner as the Legislature thereof may direct” the presidential electors allotted to them. Therefore State legislatures are free to select electors be based on the outcome off the national popular vote. If enough states whose combined electoral votes add up to 270 or more do so, then the president will effectively be chose by the popular vote.
The National Popular Vote organization and its civic allies are pursing this route. It has gained bi-partisan support of constitutional scholars, elected officials and nonpartisan civic organizations. It has passed in Republican and Democratic led legislative bodies in 33 legislative chambers in 22 states. To date the legislatures of 11 states representing 165 electoral votes have voted to join what is called the National Popular Vote Interstate Compact, an agreement to award all their respective electoral votes to whichever presidential candidate wins the overall popular vote. Inter-state compacts can require Congressional approval. Views differ on whether it applies here. Either way, the leading supporters of the National Popular Vote have made it clear they will seek Congressional approval to forge a national consensus.
The Challenge Ahead
It won’t be easy. With two hundred years of inertia and time to build up myths of why the Electoral College even exists, it’s a challenge.
Looking back to 1787an indirect election may have made some sense as a bridge between colony and free nation. But the standard and expectations of democracy in the U.S. have changed. For decades a majority of Americans across state and partisan lines have opposed the Electoral College. The time for change is long overdue. It was flawed then, it is flawed now. Divisive then and divisive now.
If our founders were with us on election night watching CNN’s iconic red and blue map to see 38 of 50 states and two-thirds of the U.S. population left on the sidelines, they might well agree it’s time as well.
Madison surely would. The Electoral College was always a compromise for him. Hamilton would too. He mainly wanted to leave the selection of the president to a small august group of appointed “electors” rather than to either Congress, as some then suggested, or to the public. Hamilton’s elite model never happened. Who the electors were and their qualifications quickly became irrelevant.
But Thomas Jefferson perhaps said it best.
“…(N)o society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct [time of use]. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years [each generation]. If it be enforced longer, it is an act of force, and not of right.” Thomas Jefferson to James Madison, 6 Sept. 1789, Papers 15:392—97