On the first anniversary of the very odd election of 2000, it's
hard to look back without fixating on Florida and the courts. But
these absorbing soap operas should not obscure the other historical
headline: the national popular vote loser nonetheless won the
electoral college vote.
Is this a flaw in our Constitution? Should we scrap the electoral
college in favor of direct popular vote? Practically speaking, can
we do so?
Our analysis proceeds in three parts. Today, we will critique
standard historical accounts of, and justifications for, the
electoral college. In our next column, we will consider prominent
modern arguments on behalf of the current system. In our final
column, we shall show how Americans could adopt popular election
without amending the Constitution.
Let's begin by considering why the Philadelphia Framers invented
an intricate electoral college contraption in the first place, and
why, after its gears jammed in the Adams-Jefferson-Burr election of
1800-01, the Twelfth Amendment repaired the thing rather than
junking it. Why didn't early Americans simply opt for direct
national election of the President? The typical answers taught in
grade-school civics miss much of the real story, both by misreading
the evidence from Philadelphia and ignoring the significance of
later events, especially the Twelfth Amendment.
The Electoral College Does Not Really Help Small States - Nor
Was It Designed To
It's often said that the Founders chose the electoral college
over direct election in order to balance the interests of big (high
population) and small (low population) states. The key Philadelphia
concession to small states was the Framers' back-up selection
system: if no candidate emerged with a first-round electoral-vote
majority, then the House of Representatives would choose among the
top five finalists, with each state casting one vote, regardless of
population. According to the standard story, although big states
would predictably dominate the first round, small states could
expect to loom large in the final selection.
But as James
Madison insisted, the deepest political divisions in early
America were not between big and small states as such; rather, the
real fissures separated north from south, and east from west.
Moreover, once the modern system of national presidential parties
and winner-take-all state contests emerged-a system already visible,
though not yet entrenched, at the time of the Twelfth Amendment-the
big states obviously had the advantage.
With two national presidential parties, one candidate almost
always had an electoral majority in the first round, rendering the
Framers' pro-small-state back-up system irrelevant. (Three or four
strong candidates, in contrast, might have split the vote so that no
one garnered a majority.) And winner-take-all rules - under which a
candidate who won a state got all of its electoral votes, not a
number proportional to the extent of his win - compounded the
advantage of big states.
Indeed, before the Civil War Amendments (which changed the
electoral college yet again), only one of the sixteen presidents
hailed from a small state-Franklin Pierce of New Hampshire. And of
the twenty-six men to hold the office since the Civil War, only Bill
Clinton of Arkansas claimed residence in a small state.
In sum, if the Framers' true goal was to give small states a leg
up, they did a rather bad job of it. (We shall suggest below,
however, that their chief goal was something rather different.)
How the Founders' Concern About Voter Information Was Rendered
Another Founding-era argument for the electoral college stemmed
from the following objection to direct election: ordinary Americans
across a vast continent would lack sufficient information to choose
intelligently among leading presidential candidates.
This objection is sometimes described today as reflecting a
general Founding distrust of democracy. But that is not quite right;
after all, the Framers required that the House be directly elected
every two year, sharply breaking with the indirect election of
Congressmen under the Articles of Confederation. Many leading
Federalists also supported direct election of governors.
The key objection at Philadelphia was thus not to democracy per
se, but to democracy based on inadequate voter information. The
Founders believed that although voters in a given state would know
enough to choose between leading state candidates for House races
and for the governorship, these voters would likely lack information
about which out-of-state figure would be best for the presidency.
This objection rang true in the 1780s,when life was far more
local. But the early emergence of national presidential parties
rendered the objection obsolete by linking presidential candidates
to slates of local candidates and national platforms that explained
to voters who stood for what.
The 1800-01 Election and the Twelfth Amendment's
Transformation of the Electoral College
Although the Philadelphia Framers did not anticipate the rise of
national presidential parties, the Twelfth Amendment (proposed in
1803 and ratified a year later) was framed with such parties
in mind in the aftermath of the election of 1800-01. In that
election, two rudimentary presidential parties--Federalists led by
John Adams and Republicans led by Thomas Jefferson--took shape and
squared off. Jefferson ultimately prevailed, but only after an
extended crisis triggered by several glitches in the Framers'
electoral machinery. In particular, Republican electors had no
formal way to designate that they wanted Jefferson for President and
Aaron Burr for Vice President rather than vice versa. Some
politicians then tried to exploit the resulting confusion.
Enter the Twelfth Amendment, which allowed each party to
designate one candidate for president and a separate candidate for
vice president. The Amendment transformed the Framers' framework,
enabling future presidential elections to be openly populist and
partisan affairs featuring two competing tickets. It is the Twelfth
Amendment's electoral college system, not the Philadelphia Framers',
that remains in place today. Yet the Amendment typically goes
unmentioned in standard civics accounts of the Constitution.
The election of 1800-01 also helped allay another early anxiety
about a popularly elected President. At the Founding, some saw a
populist Presidency as uniquely dangerous-inviting demagoguery and
possibly dictatorship with one man claiming to embody the Voice of
the American People. The dictator/demagogue concern was greater for
a president than a governor, given the president's broader electoral
mandate and status as continental commander-in-chief.
But beginning with Jefferson's election, Americans began to
embrace a system in which presidential aspirants ran national
campaigns, sought direct voter approval, and claimed popular
mandates upon election.
The Key Role of Slavery in the History of the Electoral
The biggest flaw in standard civics accounts of the electoral
college is that they never mention the real demon dooming direct
national election in 1787 and 1803: slavery.
At the Philadelphia convention, the visionary Pennsylvanian James
Wilson proposed direct national election of the President. But
in a key
speech on July 19, the savvy Virginian James Madison suggested
that such a system would prove unacceptable to the South: "The
right of suffrage was much more diffusive in the Northern than the
Southern States; and the latter could have no influence in the
election on the score of Negroes."
In other words, in a direct election system, the North would
outnumber the South, whose many slaves (more than half a million in
all) of course could not vote. But the electoral college-a prototype
of which Madison proposed in this same speech-instead let each
southern state count its slaves, albeit with a two-fifths discount,
in computing its share of the overall electoral college.
Virginia emerged as the big winner-the California of the Founding
era-with 12 out of a total of 91 electoral votes allocated by the
Philadelphia Constitution, more than a quarter of the 46 needed to
win in the first round. After the 1800 census, Wilson's free state
of Pennsylvania had ten
percent more free persons than Virginia, but got twenty
percent fewer electoral votes. Perversely, the more slaves
Virginia (or any other slave state) bought or bred, the more
electoral votes it would receive. Were a slave state to free any
blacks who then moved North, the state could actually lose electoral
If the system's pro-slavery tilt was not overwhelmingly obvious
when the Constitution was ratified, it quickly became so. For 32 of
the Constitution's first 36 years, a white slaveholding Virginian
occupied the Presidency.
Southerner Thomas Jefferson, for example, won the
election of 1800-01 against Northerner John Adams in a race
where the slavery-skew of the electoral college was the decisive
margin of victory: without the extra electoral college votes
generated by slavery, the mostly southern states that supported
Jefferson would not have sufficed to give him a majority. As pointed
observers remarked at the time, Thomas Jefferson metaphorically rode
into the executive mansion on the backs of slaves.
contest between Adams and Jefferson had featured an even sharper
division between northern states and southern states. Thus, when the
Twelfth Amendment tinkered with the electoral college system rather
than tossing it, the system's pro-slavery bias was hardly a secret.
Indeed, in the floor
debate over the amendment in late 1803, Massachusetts
Congressman Samuel Thatcher complained that "The representation
of slaves adds thirteen members to this House in the present
Congress, and eighteen Electors of President and Vice President at
the next election." But Thatcher's complaint went unredressed.
Once again, the North caved to the South by refusing to insist on
direct national election.
How the Electoral College Hurt Women's Suffrage, As Well
The Founding fathers' electoral college also didn't do much for
the Founding mothers.
In a system of direct national election, any state that chose to
enfranchise its women would have automatically doubled its clout in
presidential elections. (New Jersey apparently did allow some women
to vote in the Founding era, but later abandoned the practice.)
Under the electoral college, however, a state had no special
incentive to expand suffrage-each state got a fixed number of
electoral votes based on population, regardless of how many or how
few citizens were allowed to vote or actually voted. As with slaves,
what mattered was simply how many women resided in a state, not how
many could vote there.
In light of this more complete (if less flattering) account of
the electoral college in the late eighteenth and early nineteenth
century, Americans must ask themselves whether we want to maintain
this peculiar institution in the twenty-first century.
After all, most millennial Americans no longer believe in slavery
or sexism. We do not believe that voters lack proper information
about national candidates. We do not believe that a national figure
claiming a national mandate is unacceptably dangerous. What we do
believe is that each American is an equal citizen. We celebrate the
idea of one person, one vote-an idea undermined by the electoral
Of course, it remains possible that a system with dirty roots
nevertheless makes sense today for rather different reasons than the
ones present at the creation. In our next column, we will canvass
clever modern arguments for the college. Stay tuned.