Blundering Into Democracy: How We Got the Electoral College

During the Constitutional Convention, one of the most vexing challenges was to design an executive branch, something that did not exist under the Articles of Confederation.  The questions were many.  How long should a president serve?  Should he be eligible for re-election?  (A “she” was at the time unthinkable.)  What powers should he exercise?  What should be the limitations on those powers?  Was it to be one man or three? All of these would be brought to the floor, discussed, voted on, then scrapped, only to have the process begin again.  More than sixty separate votes were ultimately required to complete Article II of the Constitution. 

Then there was how a president should be elected. 

The initial thinking was to assign the task to either Congress or state legislatures, but when the subject came up for debate, Pennsylvania’s James Wilson, one the Convention’s best legal minds, proposed election by popular vote.  His intent was not so much egalitarian as it was to remove legislatures from the process and create a genuinely independent branch of government.  But many saw an independent executive as “the very essence of tyranny.”

Wilson next proposed that “the States be divided into districts and that the persons qualified to vote in each district for members of the first branch of the national Legislature elect members for their respective districts to be electors of the Executive magistracy,” thus introducing the notion of independent electors, but this idea was summarily rejected as well.

After the 3/5 clause and two-senators-per-state were agreed to, the dynamics of a popular vote changed.  Large states with no slaves—like Wilson’s Pennsylvania—would be best served by popular vote, while large states with slaves, such as Virginia, doubted whether even a system that rewarded substantial white populations would offset the loss of their quite substantial 3/5 slave bonus. Small states with no slaves, such as New Jersey, would be against popular vote, especially since they had fought so hard for parity in the Senate, while smaller slave states would be the most disadvantaged. 

That meant that all the small states and likely the large slave states would oppose popular vote as a practical matter, to say nothing of the reluctance of most delegates to grant “the people” too large a say, since there was widespread fear of “too much democracy.”

South Carolina’s Charles Pinckney, a slave owner, attacked popular vote, claiming “An Election by the people being liable to the most obvious & striking objections. They will be led by a few active & designing men.”  North Carolina’s Hugh Williamson put that sentiment into perspective when he admitted that a popular vote was unacceptable to the South as “slaves will have no suffrage.”  

If Congress were to choose the president, the major difficulty was deciding how to do it.  If the houses voted separately, the Senate would be granted a veto power on the House’s choice and small states could effectively hold out for a president of their choosing or create chaos by refusing to accede to any choice acceptable to the House.  The House, dominated by large states, could similarly frustrate the will of the small states.  A joint ballot would also favor the large states, the only difference being that the small states would lose their veto.

Assigning the task to state legislatures presented a similar problem.  As James Madison pointed out, “The rule of voting will give to the largest State, compared with the smallest, an influence as 4 to 1 only, although the population is as 10 to 1.”

The delegates went back and forth for weeks but no plan seemed acceptable.  The small states were determined to veto any scheme that diminished their influence, as were slaveholders.  An annoyed Madison groused, “There are objections against every mode that has been, or perhaps can be proposed.”

Casting about for anything that might work, electors were again thrown into the mix.  New Jersey’s William Paterson, the small states’ leading spokesman, proposed “that the Executive should be appointed by Electors to be chosen by the States in a ratio that would allow one elector to the smallest and three to the largest States.”  Under this disingenuous 1-2-3 arrangement, the smallest state would have no worse than a third as much influence as the largest although having little more than ten percent of its population.   

As August drew to a close, the delegates were at dead stop.  They had been sweltering and bickering for more than three months and most could not wait to leave and go home.  Unable to resolve the question, “Hoping to get out of Philadelphia, the delegates finally pushed the problem onto the docket of a special committee charged with solving previously irresolvable issues.”

That committee returned in early September with much that was shockingly new.  The president was to be chosen by electors, “equal to the whole number of Senators, and Members of the House of representatives to which the State may be entitled in the legislature.”  Gone was the 1-2-3 formula, and instead was an arrangement that would give the smallest state three electoral votes, which granted it disproportionate power in the election process.

Ignoring the dangers of a formula that might well enable minority rule, the delegates proved surprisingly amenable to a concept they had more than once rejected earlier.  As Madison later explained, “The difficulty of finding an unexceptionable process for appointing the Executive Organ of a Government such as that of the U.S. was deeply felt by the Convention; and as the final arrangement of it took place in the latter stage of the Session, it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies.” 

And so, sprung of lassitude and desperation, the Electoral College was born.

For large states with no slave bonus, such as New York, selling the Electoral College became part of the challenge of getting the new Constitution ratified.  Alexander Hamilton, who in private detested the contrivance, defended it in Federalist 68.  “The mode of appointment of the chief magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents,” a statement that was transparently untrue.  (He had not even been present during those debates.)  Hamilton went on, “If the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages; the union of which was to be desired. It was desirable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided.”

This was also false since “the people” had been intentionally left out of the process.  In any case, the Electoral College proved to be not at all excellent and it did not take long for the nation to find that out.

In 1800, Aaron Burr, Thomas Jefferson’s vice-presidential candidate, came within a whisker of being named president rather than Jefferson himself.  They had tied with seventy-three electoral votes each, and, with no distinction made on the ballots between president and vice-president, it took thirty-six votes in the House of Representatives for Jefferson to prevail.  (The Twelfth Amendment ensured that would not happen again.) Even so, Jefferson, secretary of state at the time and presiding over the House votes, was forced to resort to chicanery to gain the post, accepting as legitimate a number of improperly submitted electoral votes.

Key details that had been ignored or sloughed over by the delegates quickly came to the fore, one of which was how electors would be selected.  Although Madison had wanted electors chosen by district, thus creating a result more representative of the nation’s preferences, that notion was eventually supplanted by “general ticket,” which was the winner-take-all system forty-eight of the fifty-states now employ.

Before general ticket became universal, since states could—and still can—choose how their electors are selected, states would constantly jiggle their mode of selecting electors to gain maximum political advantage, as Donald Trump unsuccessfully attempted to do in Nebraska. Madison became so disillusioned that he proposed a constitutional amendment to require by-district voting, but it did not make it through Congress.

The most prominent flaw of the Electoral College is that a candidate receiving fewer votes than his opponent can be awarded the presidency.  Until 2000, it had only occurred three times, in 1824 when John Quincy Adams prevailed over Andrew Jackson, in 1876 with Rutherford B. Hayes chosen over Samuel Tilden (which almost ignited a second civil war), and in 1888 with Benjamin Harrison winning over Grover Cleveland.  Since 2000, however, it has occurred twice more, both favoring Republican challengers, George W. Bush in 2000 and Donald Trump in 2016.  An even more stark example was in 2020, when Donald Trump came within forty thousand votes of defeating Joe Biden even though Trump lost the popular vote by more than seven million.

After a series of failed attempts to annul various states’ results in 2020, not only has the Electoral College become an instrument of minority rule, but the lack of clarity over what states may or may not do in appointing slates of electors has created uncertainty as to whether the winner of the popular vote would gain a state’s electoral vote.

In a sharply divided nation, which the United States has surely become, the last thing we can afford is a jerry-rigged system that has not only lost the faith of the electorate but has become a genuine threat to an effectively functioning democracy.