There are a lot of people who know more about the Electoral College than I do. A quick WorldCat search reveals that more than 350 books and 1600 journal articles have been written with the words “Electoral College” in the title since 1970; there are many other books and articles about the Electoral College that don’t have the actual words in the title.
That being said, I’m going to write about the Electoral College today anyway. I’ll examine why and how it was created, how it works, how its impact has changed over time, and what can be done about it.
Why Was It Created?
Cast your mind back to August of 1787. The Constitutional Convention had been meeting since May to construct a new constitution for the United States of America. The county had been governed under a structure established under the Articles of Confederation, promulgated in 1777 but not ratified by the states until 1781, although the Continental Congress observed the Articles as its de factor structure of government. The sticking point for ratification was western land claims – in particular, Maryland refused to ratify until Virginia agreed to give up its claims to land north and west of the Ohio River.
The Articles of Confederation are usually dismissed as a failed first draft of government; however, the Confederation Congress did pass two important pieces of legislation.
The Land Ordinance of 1785 set up a standardized system of land surveying and sales that continued in effect until the passage of the 1862 Homestead Act. This ordinance also established a mechanism for funding public education.
The Northwest Ordinance of 1787 established the process by which new states would enter the union. This was not a trivial accomplishment. Existing states basically agreed to allow new states to enter the union on an equal footing with the existing states – essentially diminishing the political power of each state when a new state was admitted. In addition, the ordinance called for new states to establish public universities as a requirement for admission. The ordinance also prohibited slavery in the Northwest Territory, although other territories did not immediately adopt this policy.
Beyond these two accomplishments, however, the Confederation government didn’t have much going for it.
It had only a legislative branch – no Executive or Judiciary.
Each state had only one vote in Congress, and nine of the 13 states had to approve a bill for it to pass.
A unanimous vote was required to amend the Articles
Congress did not have the power to tax or to regulate either foreign or interstate commerce
By 1786, serious concerns had arisen about the state of the government – serious enough to lead four of the states to meet in Annapolis, Maryland, to discuss the state of affairs. Their major decision was to call another meeting – this one in Philadelphia – for May of 1787. The advertised purpose was to revise the Articles of Confederation; but from the very beginning of the Philadelphia Convention, writing a new Constitution was the only agenda.
The group spent most of its time in the first couple of months talking about the Legislative Branch. Parliament had been the source of much of the colonists’ conflict with England prior to the Revolution, so figuring out the legislature – how many houses, how they would be elected, how representation would be determined – was their first priority. This took until the end of July.
How Was It Created?
The method of electing the President and Vice President didn’t get much attention at first, because at first there was little disagreement about it. The Virginia Plan and other early ideas assumed that the Executive would be chosen by the legislature – by the Congress – much like we see in a Parliamentary system today. But once the issue of the structure of the legislature was settled, the focus turned to the executive, and three other processes were suggested:
election by state governors
election by state legislatures
direct election by voters
The longer the delegates to the Constitutional Convention discussed this issue, the greater were their disagreements. Finally, they referred this problem to the “Committee of Eleven on Postponed Matters” – my all-time favorite name for a committee. I think every organization should have a Committee on Postponed Matters.
This Committee – made up of Roger Sherman (CT), John Dickinson (DE), Abraham Baldwin (GA), Daniel Carroll (MD), Rufus King (MA), Nicholas Gilman (NH), David Brearley (NJ, Hugh Williamson (NC), Gouverneur Morris (PA), Pierce Butler (SC), and James Madison (VA) – reported their Electoral College plan to the Convention on September 4, 1787. It is worth noting that this plan was hardly debated once it was presented – the entire Constitution was ratified two weeks later. This hybrid plan — which no one had suggested before the whole issue was turned over to the Committee at the beginning of August — became part of the Constitution without much thought being given to it.
The Electoral College made some states happy by letting the states pick the voting methods for “electors” who would meet as a group (or college) and cast their votes for President and Vice President several weeks after the general election. It also pleased the “small states” – this means small in population, like many states in the agricultural South where enslaved persons were partially included in the population counts. Each state got two electors for having Senators and the rest were equal to its membership in the House of Representatives. This gave some greater weight to smaller states and it also kept members of Congress from picking a President unless there was no clear winner with a majority of the Electoral Votes.
In the current discussion of the Electoral College, some of its critics claim that is specifically racist. I don’t think that’s true, although, again, we have almost no information about what the Convention as a whole thought about this plan. It was specifically elitist, that’s for sure, in that it was based on the assumption that elections would routinely be thrown in the House, where the election would proceed independent of the will of the voters.
The racism was more fundamental than this – it was built into the structure of the Senate and the method of representation in the House. The Senate, whose membership is part of the calculation of how many Electoral Votes each state gets, was structured to increase the power of Southern (smaller) states so that the Congress would have more difficulty getting rid of slavery
In addition, the fact that 3/5 of the “other persons” – the enslaved – were included in population statistics increased the number of members of the House allocated to Southern States and thus the number of Electoral Votes these states had. The northern states had originally wanted the enslaved persons not to be counted at all, and the southern states wanted them to be counted as a whole person. This had nothing to do with who accorded personhood to the enslaved and who didn’t; it had everything to do with how much political power southern states would hold – which would be increased if enslaved individuals were included in population statistics.
This certainly had an effect on the 1800, 1824, and 1888 Presidential elections, which resulted in Electoral Vote controversies. The 1876 election, which involved Electoral College machinations but was not decided by the House of Representatives, ended Reconstruction and had its own problems.
How Well Did It Work?
Not well at all, frankly. The people who came up with the idea didn’t anticipate the emergence of political parties that undercut the Electoral College almost immediately. That’s not because they were stupid – political parties grow only in representative democracies, and the United States was in the process of inventing this form of government. Based on what they knew about politics when they wrote the Constitution, they assumed that each state would come up with a slate of “favorite son” candidates, and thus no candidate would get a majority of the Electoral Votes. They predicted that most elections would then be settled by the House of Representatives, where the actual selection would be made. They could ensure that the “right people” would be elected while deluding the voters into thinking that they were selecting their leaders. Clever folks.
Of course, it didn’t work that way. Parties emerged almost immediately. In addition, there was no standard for how the states were to choose their electors, so the states all did what they felt like doing. This is what happens when you make decisions in a hurry, as the members of the Constitutional Convention did in September of 1878. Chaos ensued during the first presidential election, which occurred in 1788-1789.
And the chaos continued. The Electoral College in its original form lasted only 17 years. The 1796 election forced the winner, Federalist John Adams, to serve awkwardly alongside his opponent, Democratic-Republican Thomas Jefferson, as his Vice President. That was bad enough. But after the 1800 election was thrown into the House of Representatives -- a situation that almost killed the entire Constitutional experiment – the 12th Amendment was passed which shored up the Electoral College.
How Well Has It Worked Since Then?
I’d give it about a C+ through the middle of the 20th century. There were a few elections after 1800 where the Electoral College scrambled the Election results – 1824, 1876, and 1888 most notably – but so long as the Electoral College results generally mirrored the popular vote results, the institution was accepted — or at least tolerated.
It gets an F, however, after about 1990. In two elections since then – 2000 and 2016 – the winner of the popular vote did not receive the majority of the Electoral Votes. I remember telling my High School students during the 1990s that the Electoral College was a quaint relic of the 18th century but that if it ever reversed the results of an election again, it would be abolished.
What Happened?
The problem of the Electoral College is primarily a problem with the structure of the Senate. Let me explain.
The number of electors each state gets is the total of its representatives in Congress – the House and Senate. So that means every state starts with two Electoral Votes (for its two Senators) and then gets additional Electoral Votes based on its representatives in the House – which is based on population. So, for example, Virginia, with two Senators and 11 Representatives, has 13 Electoral votes. Overall, the 435 members of the House plus the 100 Senators gives us 535 Electoral votes (the 23rd Amendment gave Washington, DC, three Electoral Votes – before that residents of DC couldn’t vote for President). So there are a total of 538 Electoral Votes. The winning candidate has to cobble together 270 Electoral Votes – a 269-269 tie does not produce a winner.
I repeat. The Senate is the problem. It was designed to give all the states equal representation in the Senate despite the state’s population – this was part of the “Great Compromise” that kept the Southern States in the game at the Constitutional Convention. But here’s why it’s more of a problem today – no one at the Constitutional Convention envisioned the enormous population inequality among the states that we see in America today. The first census (1790) showed that the largest state (Virginia) had a population about 10 times larger than the smallest state (Rhode Island). The 2020 census revealed that the largest state (California) had a population almost 70 times larger than the smallest state (Wyoming). This population disparity skews the intentions of the people who wrote the Constitution and leads to distortions of the electoral vote.
What Can We Do About It?
Abolishing the Electoral College would require a Constitutional Amendment – which must be passed by Congress and ratified by 2/3 of the states, including the states that would lose political power through its ratification. This is highly unlikely.
There are reform proposals that avoid the necessity for a Constitutional Amendment. Since the Constitution doesn’t prescribe how electors are to be chosen – it’s only a 20th-century tradition that they are allocated winner-take-all according to popular vote in a state – the states could change the way they allocate their electors. Two states already allocate their Electoral Vote proportionally – Maine and Nebraska. This is a fairly simple change that would more nearly reflect a close election in purple states like Virginia or Pennsylvania. This would have other positive effects – state winner-take-all laws encourage candidates to focus disproportionately on a limited set of swing states rather than campaigning more broadly. Winner-take-all laws also decrease voter turnout in states without close races, to the detriment of all elections in the state, both at the presidential level and down-ballot. Moving to proportional representation could be done independently by each state legislature.
Another more complicated proposal is the National Popular Vote Interstate Compact, by which states agree to award all their electoral votes to whichever presidential candidate wins the overall popular vote across the country. This plan was introduced in 42 states in 2007, and has now been introduced in all 50 states. As of 2022, it has been adopted by 15 states and the District of Columbia, for a total of 195 electoral votes – 72% of the 270 votes needed for this agreement to go into effect. It has passed one chamber of the state legislature in seven states – Arizona, Arkansas, Michigan, Minnesota, North Carolina, Oklahoma, and Virginia. If these states were to approve this plan, it would add 79 electoral votes, for a total of 274 electoral votes. This result would trigger the implementation of the plan, as it would create a block of 274 electoral votes pledged to the winner of the nationwide popular vote.
Conclusion
The Electoral College was not part of a well-thought-out plan carefully crafted by wise men at the Constitutional Convention. It was hastily put together and approved by men who were tired of being away from home, who were hot and sweaty from spending months in an enclosed space (remember the closed doors and windows thing?) in the summer in Philadephia, who wanted to get home to harvest their crops (these were the southerners). The people who wrote it didn’t even like it: in a letter he wrote to Jefferson in Paris, James Madison (who was a member of the Committee that drafted the plan!) said that the plan would come back to haunt posterity. He later claimed that it was a shoddy piece of work that had obvious flaws that would have to be corrected by later constitutional amendments
It is essential for the maintenance of American democracy that the problems with the Electoral College be solved. The current political arguments over two elements of our political system – the Electoral College and the legislative filibuster – feature people on one side who believe that minority rule is somehow what the framers of the Constitution intended.
In brief – well, it’s not.
Any more-than-cursory examination of what the founders were thinking when they wrote the Constitution reveals that they saw rule by the minority as the antithesis of how they thought the government should work. If you don’t believe me, take a look at some of the thousands of scholarly books and articles that I referenced earlier.
However, you could simply believe me. Just sayin’.
At last! I think this explains the Electoral College so that even I can now understand it!
Great article, Karen. Really enjoy your writing.