Many people believe that the Electoral College was primarily created by the Framers of the Constitution because they were afraid of democracy or because they wanted to protect small states. These notions are widely repeated, even by Factcheck.org and HistoryCentral, but are not supported by historical research. What became known as “the Electoral College” was not a central element of a carefully considered plan, but instead a last-minute compromise that seemed to address the shortcomings of the alternative methods proposed, approved by weary delegates anxious to go home after months of contentious debate. The system never worked as intended, starting with the first contested election in 1796. The defects in the system produced a constitutional crisis at the very next election, which led to a technical fix — the Eleventh Amendment — that addressed some but not all of the problems. Many key features of the system — the mechanical role of electors, the central role of political parties, the winner take all rule, and the party nomination process — are not in the Constitution but evolved independently. The system has been frequently criticized, including by Jefferson and Madison in their final years, but is still with us today largely because it is so hard to formally amend the Constitution, and in part as a consequence, a series of ad hoc justifications have developed to rationalize a system that is indefensible in a modern democracy.
Alternatives Considered for Electing the President in 1787
There were sharp differences of opinion among the delegates to the Constitutional Convention in Philadelphia in 1787, including about the method of electing the “chief magistrate.” The alternatives considered were:
1. Direct election by the people
James Madison, the chief architect of the Constitution, favored direct election by the people because he wanted a national government representing people, not states (as opposed to the then-existing constitution, the Articles of Confederation, which gave each state a veto). James Wilson and Gouverneur Morris also promoted direct election.
Although a few delegates such as Elbridge Gerry and Alexander Hamilton had aristocratic pretensions and were fearful of popular rule, most delegates were democrats by the standards of the day and favored a democratic republic. Reviewing the records of the Constitutional Convention, one finds that “most opponents to popular election at the Convention provide reasons that are not consistent with the common assumption today that the founders distrusted the common man and representative democracy as a mechanism for choosing the chief magistrate.” (Bugh, 2010, pp. 25-26). The arguments against a direct national election were instead:
- The difficulties of organizing a national election in a large country with slow communication and transportation technology.
- The fear that direct election would favor the large states, since the delegates assumed that most people would only vote for someone from their own state, given that other than General Washington there were few nationally-known figures.
- The delegates from slaveholding states recognized that direct election would disadvantage them, compared to the alternative of election by Congress, because they would lose the 3/5 bonus for slaves that was already part of the agreement for representation in the proposed House of Representatives.
2. Election by Congress.
At the time of the drafting of the Constitution, eight of 13 states elected their governors indirectly, by the state legislature. However the British Parliamentary model in its current form did not yet exist. In England, the Executive was the King, and a monarchy was a model that Americans had specifically rejected. On five separate occasions during the Convention, the delegates voted in favor of election of the president by the national legislature. However, the opponents of this plan argued that the President, even if elected to the proposed single seven-year term, would be beholden to Congress. They argued that the executive needed to be independently elected.
3. Selection by state legislatures.
Another option that emerged was to have the president selected by state legislatures. A variant of this proposal was to have the legislatures choose 25 “electors” who would in turn select the president. This proposal was attractive because it provided for a president completely independent of Congress.
As the summer wore on and no agreement was reached as to the method of selecting the president, the delegates assigned the question to a Committee on Postponed Matters.
A Last-Minute Compromise
In September the Committee announced its plan: a hybrid of the first and second options. The state legislatures would select electors, now in the same number as the state’s representation in Congress. The electors would not meet as a body, but in their own states, thereby making it impossible for them to coordinate their actions. Each elector would have two votes, but to discourage parochialism, one of the two would have to be for a resident of a state other than the elector’s home state. The candidate with the most votes would be President and the runner-up would be Vice President. However, if no candidate were to receive a majority of the total votes cast, the Senate would make a selection among the top five vote-getters. This proposed system gave a role to the states (who would determine how the electors were selected), preserved the independence of the President (since the candidates would be nominated by a group of electors selected only for this task), but would also preserve a role for Congress, in making the final selection. Some delegates argued that the proposal gave too much power to the Senate as a body, since the it was also proposed to have the power to ratify treaties, consent to presidential appointments, and judge the president in case of impeachment. Therefore the proposal was modified so that the House of Representatives would make the decision, but voting by state, thus maintaining the support of the small states (who had equal votes in the existing constitution, in votes taken by the Convention, and in the proposed ratifying process).
Historian Jack Rakove says of this proposal: “The electoral college . . . owed more to the perceived defects in alternative modes of election than to any great confidence that this ingenious mechanism would work in practice.” (Rakove 1996, p. 267). The convoluted proposal involved four competing sets of decision-makers: state legislatures, the voters, the Electors, and Congress. In defending the Constitution to the Virginia ratifying convention, Madison claimed that “the president will be the choice of the people at large,” adding that the electors were necessary as intermediaries because of the difficulties of holding a direct vote in a big country. The choice of how to select electors was given to the state legislatures, but from the very first election more than half held public elections. Moreover, few of the Framers “expected the electors to do anything more than nominate candidates.” (Rakove, p. 265.). Thus it was expected that in most cases the ultimate decision would be made by Congress. The Convention accepted the use of electors not, as is widely assumed today, as an elite check on popular passions, but as a means of keeping the decision at least in part out of the hands of Congress.
Although complicated, what became known as the electoral college answered the objections to the other proposals put forward previously. The delegates had been away from home for months and were ready to call it a day. Everyone knew that George Washington would be elected the first president, so if there were problems with the method of electing the president in subsequent elections they could always deal with the problems later (or so they thought).
Never Worked as Intended
With the first competitive election in 1796, it become clear in just a few years, the delegates hadn’t thought through the details clearly. The system they designed never worked as intended. Although the Framers tried hard to prevent faction, cabals, and intrigues, the system they created diffused power so much that alliances–political parties–became a necessity. In large measure, political parties developed because of the constitutional framework, if only accidentally so: “No feature of the Constitution stimulated the organization of political parties more than the recognition that control of the national government depended on control of the presidency. That was hardly the result the framers intended, nor was it even an outcome that they could plausibly imagine” (Rakove 1996, p. 268).
By this time members of Congress had coalesced around the Federalist party of Vice President John Adams or the anti-Federalist, Democratic-Republican grouping around former Secretary of State Thomas Jefferson. Both parties realized that they needed to make sure that their electors did not all cast two votes for the same two people, since there was no way to differentiate between votes for the intended Presidential and Vice Presidential candidates. When the electoral votes were counted, Adams had the most, but his Federalist electors scattered their second votes so that Jefferson ended up with more votes than the Federalist Vice Presidential candidate. Thus the election resulted in a President and Vice President of opposing parties.
Already in this first real election, the electors had become “a faceless component of a state-by-state counting device” (Longley and Peirce), thanks primarily to the rise of parties. Electors who actually exercised discretion–as envisioned by the founders–were repudiated as “faithless,” asis demonstrated by the comment of one Federalist, outraged that an elector voted for the candidate of the other party: “What, do I chuse Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I chuse him to act, not to think.”
Constitutional Crisis of 1801
The election of 1800 was a rematch between Adams and Jefferson. Partisan domination of state legislatures led to changes in the rules for selecting electors. “Partisans on both sides sought any advantage they could find. In several states, this included changing the process of selecting electors to ensure the desired result. In Georgia, Democratic-Republican legislators replaced the popular vote with selection by the state legislature. Federalist legislators did the same in Massachusetts and New Hampshire.” This time the Federalist electors managed to game the system: all voted Adams and all but one voted for his running mate. But all the Republicans voted for their ticket of Thomas Jefferson and Aaron Burr, thus provoking a constitutional crisis when both Jefferson and Burr had the most votes. The tie sent the election to the House. Through a quirk in the dates of the first election and the first presidential inauguration, the decision would be made by the previously elected House, dominated by Federalists, not the newly elected House dominated by Jefferson’s Republicans. Jefferson as the sitting Vice President was required by the Constitution to preside over the vote counting although he had an obvious conflict of interest.
The Republican Governors of nearby Maryland and Pennsylvania threatened to call out the state militias. The Federalist-controlled New England states could not bring armed men to DC as quickly. Armed conflict might have broken out but that President Adams had recently disbanded the national army.
Although the Federalists dominated the House (57 to 49), they only controlled six delegations when voting by state as constitutionally required. The Republicans controlled eight, and two were evenly divided and thus produced no vote. Thus no candidate received the necessary majority of the 16 states. This deadlock persisted over 35 ballots cast over seven days. Finally, the single Representative from Delaware changed his vote to an abstention, giving Jefferson a majority and the presidency. These events led to the adoption of the 12th Amendment in 1804, which specified that electors would cast a joint ballot for President and Vice President running as a team. Thus the Constitution was modified to implicitly accept the role of political parties. However, the amendment did not alter the other key elements of the system: the ability of state legislatures to chose a method of selecting electors, the ability of electors to make an independent choice, and the contingent election in the House.
After this fix, and with the rise of political parties, the vote for electors became determinative. Also, there was a trend towards popular election (rather than state appointment) of electors, starting with the newly created states, but spreading to all except for South Carolina by 1828.
The system “broke down”–that is, devolved into the system that the Framers thought they were creating–only once, in 1824. The Jeffersonian Republicans were the single dominant party, but instead of picking a single candidate four candidates competed. Since each was a regional favorite, all received some electoral votes and none a majority, sending the election to the House, which chose John Quincy Adams even though Andrew Jackson had the most popular votes and the most electoral votes. Speaker of the House and Presidential candidate Henry Clay, placing fourth, was not part of the House contingent election but supported Adams. This was highly controversial, as recounted in Wikipedia: “Jackson and his followers accused Adams and Clay of striking a “corrupt bargain“. The Jacksonians would campaign on this claim for the next four years, ultimately attaining Jackson’s victory in the Adams-Jackson rematch in 1828.”
Madison and Jefferson Support Fixing the Electoral College
There were numerous attempts in the 1820s to fix the Electoral College. Leading up to the 1824 election it seemed likely that there would be multiple candidates, leading to the use of the House contingent election (as did in fact happened). One reformer, George Hay, sent his proposed amendment to Jefferson and Madison. Thomas Jefferson replied, “I have no hesitation in saying that I have ever considered the constitutional mode of election, ultimately by the legislature voting by states, as the most dangerous blot in our constitution, and one which some unlucky chance will some day hit.” In response to the same proposed amendment James Madison wrote: “The present rule of voting for President by the House of Representatives is so great a departure from the republican principle of numerical equality, and even from the Federal rule, which qualifies the numerical by State equality, and is so pregnant, also, with a mischievous tendency in practice, that an amendment to the Constitution is justly called for by all its considerate and best friends.” Madison objected to the contingent election procedure–the House voting by states–in the event of no majority of electoral votes. He favored a joint ballot by both houses of Congress in that case. Further, he objected to the “general ticket” (winner take all) system and instead favored election of electors by district, adding that “The district mode was mostly, if not exclusively, in view when the Constitution was framed and adopted,’ and was exchanged for the general ticket and the legislative election as the only expedient for baffling the policy of the States which had set the example. A constitutional establishment of that mode will doubtless aid in reconciling the smaller States to the other change [that is, contingent election by joint ballot of both houses of Congress], which they will regard as a concession on their part.” Here Madison makes several important points:
- He and other Framers assumed that the people would be voting for President (despite the often-alleged anti-democratic tendencies of the Framers).
- They assumed that states would create districts–which if were the practice today would alleviate the problem of non-competitive states (although not completely due to gerrymandering).
- He recognized that states on their own will not adopt the district system once others start giving all of their Electors to the party controlled by that state (either by general ticket voting or by legislative selection), and thus a constitutional amendment was required to fix the problem.
- Thinking of how the small states would agree to ultimate selection by both Houses jointly (thus essentially removing the great small state advantage of the existing rule–the House voting by state), Madison proposes both reforms being enacted together, because the small states would find the district system to their advantage because the winner-take-all rule clearly advantages the large states.
Ad-Hoc Defense of the Electoral College
Over the decades many people have argued in favor of the Electoral College for reasons unrelated to those actually considered by the Framers. Here are some of the most prominent:
We’re Not a Democracy Anyway
Electoral College defenders frequently bring out the chestnut that the United States “is not a democracy, it’s a republic.” The notion that the United States is not a democracy comes from a misunderstanding of James Madison’s writings, where he makes a distinction between a Republic and a Democracy. By Republic, Madison meant representative democracy, and by Democracy, Madison meant direct democracy (such as a New England town meeting).
Protecting Small States
Although there was an element of concern for smaller states in the development of the system, it was a matter of political expediency more than principle, and it is mostly embodied in the part of the system (contingent election) that is never used. Still, some argue that the electoral college is needed to protect the interest of small states. Professor Edwards observes: “States–including states with small populations–do not embody coherent, unified interests and communities, and they have little need for protection. Even if they did, the electoral college does not provide it. Contrary to the claims of its supporters, candidates do not pay attention to small states” (Edwards 2010 p. 144). They pay attention to swing states.
Fraud and Recounts
The “electoral college does not contain the results of fraud and accidental circumstances within states. Instead, it magnifies their consequences for the .outcome nationally.” Because of winner-take-all rules, “a few votes can change the outcome of an entire state, which may affect the national result.” In fact, “the electoral college creates incentives for fraud because there may be a large payoff from stealing a few votes.” (Edwards, 2010 p. 146). For example, in the 2000 election, Bush’s winning margin was 538 votes (in Florida), but if the national popular vote were determinative, his losing margin would have been 540,000 votes — much harder to alter by fraud. The need for a recount under a direct election would similarly be less likely than under the current system
Central Part of Federalism
It is sometimes asserted that “the Electoral College preserves federalism best.” However the only part of the system that really operates on the Federal principle of equal state power is the contingent election by the U.S. House–which has never occurred since 1824 and which, as we have seen, was even then seen as an unjust violation of republican (that is, democratic) principles–and would certainly be considered by most Americans today. What preserves Federalism is the existence of independently elected state governments exercising their rights under Federal law. Direct election of the president would in no way change this, nor would it change the equal vote of each state in the U.S. Senate.
The electoral college is with us today largely because it is so difficult to amend the Constitution. However, it is also frequently supported based on reasons that do not match those that actually led to its creation. Because it is indefensible in a modern democracy, we have developed “just so” stories to explain its continued existence. Changing it will not be easy, but first we need to understand how it came to be.
Robert W. Bennett. 2006. Taming the Electoral College.
Gary Bugh (ed.). 2010. Electoral College Reform: Challenges and Possibilities.
George C. Edwards III. 2011. Why the Electoral College is Bad for America. 2nd edition.
Lawrence D. Longley and Neal R. Peirce. 1999. The Electoral College Primer 2000.
Jack N. Rakove. 1996. Original Meanings.
Jack N. Rakove, 2013. Crash Course In Our Dysfunctional Electoral College. TEDx Stanford. (historical section starts at 5:50).