The Electoral Collage
The British Prime Minister William Gladstone once described the United States Constitution as “the most wonderful work ever struck off at a given time by the brain and purpose of man.” It IS wonderful, but wonderful and perfect aren’t the same thing. The original document had its flaws involving the protection and perpetuation of slavery, and the absence of guidance for federal courts (technically, under the Constitution, you don’t have to be a lawyer to be a Supreme Court justice—really). Its biggest surviving flaw is the system it created for choosing a president.
When the framers emerged with the Constitution, a woman asked one of the delegates, “Well, Doctor, what have we got, a republic or a monarchy?” Benjamin Franklin replied, “A republic, if you can keep it.” It certainly was no democracy. The Constitution left open the questions of who would vote, and where and how. At the time, property-owning adult white men comprised most of the population that could vote.
Long before he became a rapper, Alexander Hamilton described the public as “a great beast.” Although he was among the more conservative founding fathers on that score, his disdain for democracy was nothing unusual. They could not envision that, in 2016, any citizen at least 18 years old and meeting certain requirements—in some states, not being a convicted felon, for example—would have the right to vote. Since they made it possible to amend their own document, they might have been less surprised that, 125 years after ratification, Americans decided that they should elect their U.S. senators directly instead of leaving it up to their state legislators. The expansion of suffrage has been sometimes violent and rarely pretty, but the arc of history has bent toward its growth.
Yet the Electoral College survives. It has changed from its origins, constitutionally and politically. At first, electors met and chose the best candidates. The top vote-getter became president, and the runner-up became vice-president. The problems became apparent when George Washington retired and presidential elections became competitive. In 1796, John Adams and Thomas Jefferson ran against each other and wound up as president and vice-president respectively, despite deep ideological differences. In 1800, Jefferson clearly was his party’s presidential candidate, and Aaron Burr was just as clearly his running-mate, but their electors voted equally for both of them, throwing the election into the House of Representatives. The 12th Amendment made clear that there would be votes for the presidential and vice-presidential candidates, and that problem was solved.
But why does it exist at all? The traditional view has been that the founding fathers, generally if not completely sharing Hamilton’s attitude toward democracy, wanted to leave the decision to the elite—maybe the financial and propertied elite, but certainly the elite who were educated and thoughtful enough to make more informed decisions.
Except that while legislators chose electors, caucuses and popular votes soon became part of the process in most states, and the electors often ratified those choices. This tendency grew as political parties became more important with the rise of the Jacksonian Democrats and Whigs by the 1830s.
Yet electors kept choosing presidents, and sometimes the system ran aground. In 1876, Democrat Samuel Tilden won the popular vote by about 250,000 nationally against Republican Rutherford B. Hayes. But with Democrats having regained control in most southern states, and the three southern states that Republicans still controlled submitting two sets of returns, the result wound up in the hands of an Electoral Commission created by Congress. The Republicans who controlled the commission managed to decide in favor of Hayes. A dozen years later, Democrat Grover Cleveland won the popular vote by just under 100,000 votes, but the Electoral College gave the victory—233-168—to Republican Benjamin Harrison.
As for the 2000 election, we may never know all that happened. Here’s what we do know: Al Gore won the popular vote by more than 500,000 but lost the Electoral College, 271-266, after a Supreme Court ruling on the 25 disputed electoral votes from Florida. But if Gore had carried New Hampshire, Nevada, or his home state of Tennessee, he would have had the required 270, and Florida wouldn’t have mattered.
Why Florida or any of the others mattered at all may have had nothing to do with the fear of democracy the Constitution’s framers shared. Akhil Reed Amar, one of the nation’s most distinguished scholars of the Constitution and the Sterling Professor of Law at Yale, is among the leaders of a group of experts arguing that the reason for the Electoral College was not a fear of democracy, but in fact the most undemocratic and unappealing aspect of the origins of American society.
Amar has noted that one of the most important figures at the Constitutional Convention, James Wilson of Pennsylvania, suggested the direct election of the president. The “father of the Constitution,” James Madison, perhaps the key figure at the convention and one of the most subtle thinkers of that gifted generation, said, “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.”
At the convention, the 3/5 Compromise counted five slaves as three residents for the purposes of determining a state’s delegation in the House of Representatives. But it served an additional purpose: a state’s vote in the Electoral College equaled the number in its congressional delegation. Thus, the South derived an important benefit from using the Electoral College.
How important? In 1800, when Jefferson won, he (and Burr) received 73 electoral votes to 65 for John Adams. If each slave had not counted as three-fifths of a person, the South would have had, Amar estimates, 13 fewer electoral votes. All of those votes went to Jefferson. Remove them, and Adams wins a second term.
Indeed, the history of presidential elections until the Civil War is inseparable from slavery. Slaveowning Virginians served as president for 32 of the republic’s first 36 years. Until 1850, the Adamses were the only presidents who didn’t own at least one slave. And in the 1850s, the two presidents who were elected, Democrats Franklin Pierce and James Buchanan, were acceptable because they fit the definition of a “Doughface,” a term used to describe “northern men with southern principles.” When the North’s population, already too large for Madison’s taste in 1787, grew enough, in 1860, Abraham Lincoln could win the Electoral College without a southern vote. The South’s response was to secede from the Union.As Amar noted, “After the 1800 census, Wilson’s free state of Pennsylvania had 10% more free persons than Virginia, but got 20% fewer electoral votes. Perversely, the more slaves Virginia (or any other slave state) bought or bred, the more electoral votes it would receive.” He added, “In light of this more complete (if less flattering) account of the electoral college in the late 18th and early 19th century, Americans should ask themselves whether we want to maintain this odd—dare I say peculiar?—institution in the 21st century.”
Amar’s droll question requires an answer. Courts have interpreted the Thirteenth Amendment, which ends slavery and empowers Congress to enforce abolition, as giving the legislative branch the right to attack “the badges and incidents of slavery.” The Electoral College is not only undemocratic in an increasingly democratic republic. It also is a badge and incident of slavery.