DECEMBER 19, 2016
TODAY, DECEMBER 19, presidential electors will meet in the states to cast their ballots for the president. Barring some unforeseen event, Donald Trump will have the most electoral votes. When these votes are later counted by the US Congress he will be president. The latest tally of the popular vote shows Hillary Clinton with a margin of more than 2,860,000 votes. This makes her the most popular candidate to ever lose a presidential election.
But, she is not the first candidate to win the popular vote and lose in the Electoral College. In 2000, Al Gore beat George Bush in the popular vote by about 544,000 votes. The 2016 election demonstrates, for the second time in 16 years, that having more popular votes does not guarantee that a candidate will win the election.
Here is your electoral trivia question: What do John Adams, Andrew Jackson, Samuel J. Tilden, Grover Cleveland, Albert Gore, and Hillary Clinton have in common? You already know the answer: they won the popular vote and lost in the Electoral College. Andrew Jackson won 151,271 popular votes to John Quincy Adams’s 113,122 votes. Henry Clay ran third with 47,531 and William Crawford ran fourth, with 40,856 votes. Jackson won 99 electoral votes, Adams 84, Crawford 41, and Clay 37. With no electoral majority, the contest went to the House, where each state cast a single vote, and Adams was elected president. In 1876, massive voter fraud and the intimidation of black voters in the South, make it impossible to know who had the popular majority, or who would have had it, if the election had been conducted fairly. However, the official tally shows that Samuel Tilden won 4,288,191 popular votes and Hayes won only 4,033,497. In 1888, Grover Cleveland won 5,539,118 popular votes while Benjamin Harrison won 5,449,825. However, Harrison had the majority of the electoral votes. There are no records of popular votes in the 1800 election, because the electors were chosen by the state legislatures. Thomas Jefferson won 73 electoral votes while John Adams won 65. However, Jefferson’s margin of victory came from electoral votes created by counting slaves for purposes of representation; since slaves could not vote, it seems likely that Adams would have won the popular vote.
The Electoral College is deeply undemocratic. Because presidential electors are allocated by adding the two senators to the number of representatives each state gets, the smallest states have proportionally more power in electing the president than the large ones. Under the 2010 United States Census, the 10 largest states have a combined population of about 167 million people, or 54 percent of the population, and 256 electoral votes. The remaining 40 states have about 142 million people and are allocated 282 electoral votes. It does not take a mathematical genius to figure out that under the present system, 46 percent of the population can outvote 54 percent of the population.
Of course it would be unusual for all the small states to vote one way, and all the large states to vote another way. But the undemocratic nature of the Electoral College is obvious in other ways. In this last election, Donald Trump won 66 electoral votes from 14 small states, with a total population of about 26,297,000. Hillary Clinton won 55 electoral votes from California, with a population of 37,254,000. The math is clear. Twenty-six million people substantially outvoted 37 million people. Something is clearly wrong.
How did we get such an insane, undemocratic system for choosing our president?
The origin of the Electoral College is almost as depressing as the outcomes it often produces. The system was explicitly designed to protect slavery. One hundred and fifty years after the Thirteenth Amendment abolished slavery, this proslavery provision lurks in our political backyard, like some horrible monster waiting to spring on us and undermine the very notion of democratic government in the world’s oldest constitutional democracy.
Before looking at the evidence for this, it is worth taking a moment to consider the classic explanations for the Electoral College — the ones we were taught in high school or in Political Science 101 in college. They are mostly or completely incorrect. They are urban legends of political scientists and historians that cover up the real origin. How do we know this? Because the records of the debates from the Constitutional Convention tell the real story. But first, let’s look at these legends.
The first (mostly) wrong explanation for the Electoral College is that it was created because the Framers did not want to allow common voters to choose the president. This is the story I learned in public school, and it was still being told in college textbooks in the late 1970s when I began teaching United States history at the University of California, Irvine. The argument was that the men who wrote the Constitution were elitists who feared that the average voter would be unable to choose a national candidate or, worse yet, would vote for some demagogue. So, instead, the voter would choose a local “elector” who would cast a more informed vote for president.
At the Constitutional Convention, Elbridge Gerry of Massachusetts (a shrewd politician, and the father of “Gerrymandering”) did take this position, and proponents of this explanation quote Gerry’s assertion at the Convention that “the evils we experience flow from the excess of democracy.” Gerry believed that “[t]he popular mode of electing the Chief Magistrate would certainly be the worst of all” and argued that “the people are uninformed, and would be misled by a few designing men.” He further elaborated, “The people […] are the dupes of pretended patriots.” Such comments by Gerry are the origin of the belief that the Framers feared the people.
But no one at the Convention accepted Gerry’s argument. (At the Convention on the last day, Gerry was one of the few delegates who refused to sign the Constitution. He was disgruntled because he did not get his way on many issues.) The other delegates rejected Gerry’s arguments because local electors could also be “designing men” who would mislead the people at the local level, just as a national candidate might while campaigning for the presidency. Given the quality and fame of the national leaders — Washington, Adams, Jefferson — it was unlikely the people would be “misled” by those seeking the nation’s highest office. Indeed, the nationalists who dominated the Convention — like Madison, Washington, Gouverneur Morris, Rufus King, Roger Sherman, and Charles Cotesworth Pinckney — generally despised local politicians like Patrick Henry in Virginia and George Clinton in New York. The Framers were more likely to trust national politicians — like themselves. From the perspective of the Framers, the main goal of the Convention was to maneuver around the local politicians to secure a national political structure. The Electoral College, however, was clearly antithetical to the Framers’ goal of reducing the power of local politicians. Thus, its inclusion in the Constitution is all the more surprising.
In addition, the voters were hardly the common people. It is true that Massachusetts had universal adult male suffrage, without regard to property or race. Perhaps this is why Gerry was so disdainful of “the people” and why he argued that “the evils we experience flow from the excess of democracy.” But most states had property and racial requirements to vote. At this time, only New Jersey allowed women to vote. Office holding was even more restrictive. With the exception of New York and Virginia, every state had a religious test for office holding, requiring that officeholders be Christians, and most excluded Catholics. And most of the states had property requirements for office holding that were even higher than those for voting. Given who could vote and hold office, the Framers did not need to fear the rabble would elect some unknown person as president. In most places the rabble could not vote or hold office.
The Framers fully assumed that this electorate of literate property owners would be reasonably well informed regarding the issues and the candidates, and it is likely that American voters in the 1780s, even without the benefit of television, mass production of newspapers, or the internet, were on average better informed than those who vote today. Besides, most of the delegates at the Convention were accomplished and successful politicians who had held elective office in their states. They knew that the people who had elected them were not incompetent or unreliable.
The second wrong explanation for the Electoral College is that it was designed to protect the small states from dominance by the large. However, in all the debates over the executive at the Constitutional Convention, this issue never came up. Indeed, the opposite argument received more attention. At one point the Convention considered allowing the state governors to choose the president but backed away from this in part because it would allow the small states to choose one of their own.
To understand the actual origin of the Electoral College, we first must see the various methods of picking a president that the delegates to the Constitutional Convention considered.
On May 29, Governor Edmund Randolph of Virginia proposed that the national executive “be chosen by the National Legislature” for a specific term of years and the president “be ineligible a second time.” A day later, Madison suggested that the president be selected by the lower house of Congress, which Madison believed should be chosen by popular election. On June 1, the delegates debated a proposal that the “National Executive” be a “single person.”
The discussion that followed produced serious disagreements among the delegates. Roger Sherman of Connecticut argued that the executive should be seen as “nothing more” than a vehicle “for carrying the will of the Legislature,” which should be free to expand or contract the number of executives, as needed. Randolph feared an executive made up of a single person was the “foetus of a monarchy,” and proposed an executive made up of three different men. John Rutledge did not fear a strong executive, held by “a single person,” as long as the executive did not have the power to unilaterally make war or peace. The debate was clearly going nowhere, and at Madison’s suggestion the discussion was postponed until the Convention had determined the “extent of the Executive authority.”
James Wilson of Pennsylvania, one of the leaders of the Convention, then proposed that the chief executive be elected by “the people,” citing the successful experience of the popular election of governors in New York and Massachusetts. He argued that only the most famous people would be chosen under such a method. Roger Sherman, on the other hand, favored having the legislature elect the president. Under this system, modeled on the British Parliament, the president would be “absolutely dependent” on the legislature.
With nothing decided, the Convention then considered the president’s term. Wilson and Sherman favored three years, with the notion that the president would be eligible for reelection. Sherman opposed “the doctrine of rotation as throwing out of office the men best qualified to execute its duties.” Charles Pinckney of South Carolina favored seven years, as did George Mason of Virginia, but only if the chief executive was limited to one term. Gunning Bedford of Delaware favored a three-year term, but would have limited the president to three terms. Madison, on the other hand, was against term limits, but argued that the president could “be impeached and removed” for any “malpractice.” The Convention then voted for a seven-year term, but without term limits.
A day later, on June 2, James Wilson proposed what would ultimately evolve into the electoral college. The draft document then under consideration provided for the election of the president by the national legislature, which Wilson opposed. He had already indicated his interest in direct election of the president, but he clearly did not have much support for this. So, instead, he suggested that each state be divided into “districts” and that voters in each district vote for “electors of the Executive Magistracy.” This idea went nowhere.
At this point the Convention ceased to spend much energy on the executive branch until July 17 when the Convention considered the entire draft of the Constitution. Gouverneur Morris began the debate by arguing for election by the people:
He ought to be elected by the people at large, by the freeholders of the Country. […] If the people should elect, they will never fail to prefer some man of distinguished character, or services; some man, if he might so speak, of continental reputation. If the Legislature elect, it will be the work of intrigue, of cabal, and of faction: it will be like the election of a pope by a conclave of cardinals; real merit will rarely be the title to the appointment.
Wilson supported this as well.
Charles Pinckney opposed direct election of the president, arguing that “[t]he most populous States by combining in favor of the same individual will be able to carry their points.” This statement cannot, however, be taken at face value. Throughout the Convention Pinckney had voted with the large states, as had the rest of the South Carolina delegation. South Carolina saw itself as a large state. The issue here was not population, but the voting population. With slaves comprising half the people of South Carolina, Pinckney could not afford to support the direct election of the president.
Hugh Williamson of North Carolina was less coy than Pinckney. He bluntly noted that the South could not support popular election: “The people will be sure to vote for some man in their own State, and the largest State will be sure to succeed. This will not be Virginia. However. Her slaves will have no suffrage.” This was a critical observation. If the president was directly elected by the people, then southerners, especially Virginians, might not get elected. Virginia had the largest population of any state, but about 40 percent of its people were slaves and none of them could vote.
After this debate, the Convention rejected popular election of the president, with only Pennsylvania supporting it. The next day, the delegates rejected the idea of the legislature choosing the president because if he were eligible for reelection, he would be “absolutely dependent” on the legislature. This system would destroy the separation of powers that the delegates wanted to build into the new constitution.
Thus, the delegates had to find another method of electing the president. On July 19, 1787, Oliver Ellsworth of Connecticut proposed “electors” appointed by the state legislatures. Under Ellsworth’s plan these would be apportioned on the basis of population, and thus the small states would have no special advantage.
At this point, James Madison, a slaveholding Virginian, weighed in. The most influential delegate, Madison argued that “the people at large” were “the fittest” to choose the president. But “one difficulty […] of a serious nature” made election by the people impossible. Madison noted that 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 the Negroes.” Thus Madison favored the creation of the Electoral College.
The Convention quickly moved to accept the idea of an Electoral College, following the lead of Ellsworth, from the North, and Madison and Williamson, from the South. This sectional balance is revealing. Ellsworth almost always voted with the South on slavery-related matters, and the agreement here seems part of the same New England–Deep South coalition that led to the Slave Trade clause. The Convention tied presidential electors to representation in Congress. By this time, the Convention had already agreed to count slaves for representation under the threefifths compromise, counting five slaves as equal to three free people in order to increase the South’s representation in Congress. Thus, in electing the president the political power southerners gained from owning slaves (although obviously not the votes of slaves) would be factored into the electoral votes of each state.
The truth of Williamson’s observation about the need of the South to have its slaves counted in choosing the president becomes clear when we examine the election of 1800 between John Adams, who never owned a slave, and Thomas Jefferson, who owned about 200 at the time. The election was very close, with Jefferson getting 73 electoral votes and Adams 65. Jefferson’s strength was in the South, which provided 53 of his electoral votes. If Jefferson had received no electoral votes based on counting slaves under the three-fifths clause, John Adams would have won the election.
Over 135 years ago the United States rid itself of slavery. Perhaps it is now time to rid ourselves of the last constitutional vestige of the peculiar institution: the Electoral College. After all, it is surely the most peculiar aspect of our political system. Moreover, as the elections of 2000 and 2016 show, it does not seem to be working very well. Now that slavery is no longer an issue, perhaps it is time to reexamine James Madison’s original statement: “The people at large” are “the fittest” to choose the president, because “the people generally could only know & vote for some Citizen whose merits had rendered him an object of general attention & esteem.”
Perhaps it is time to heed Madison’s advice.
Paul Finkelman is the Ariel F. Sallows Visiting Professor of Human Rights Law at the University of Saskatchewan College of Law, and in January he will be the John E. Murray Visiting Professor of Law at the University of Pittsburgh School of Law.