The Elegant 18th Century Solution to the Electoral College, Even More Relevant in the 21st

On November second, 2004, Americans expressed their opinions on who would be the executive of their government. There was the Global War on Terror, the recent economic recession, the No Child Left Behind Act, the USA Patriot Act, and environmental concerns, but there was an additional and mighty underlying issue in the legacy of the 2000 election. The incumbent president had received the votes of fewer Americans than his opponent.

President George W. Bush ran his re-election campaign on the importance of all Americans pulling together. The key-note address at the Republican National Convention, a time-slot filled in the Democratic Convention that year by Barack Obama, was given by Democratic Senator Zell Miller. Crisis was averted. Bush was re-elected winning a plurality of the popular vote, and the Electoral College, broken since inception and running since 1804 (after only the second contested presidential election) on a rushed hotfix, continued on because it only caused problems every once in a while.

Another method of choosing the head of government was proposed at the 1787 Constitutional Convention by George Mason. A method that more elegantly addressed the same difficulties surrounding electing the executive of a federal republic. The weaknesses of this proposal compared to the electoral college have been lessened in the intervening centuries, its strengths deepened, and it is worth a look with the new eyes of today.

History

It is first helpful to investigate how an American President is elected and why that manner is used. There are several popular explanations for the existence or necessity of the Electoral College. The main two are the fear of urban states dominating rural ones and slavery. Neither of these is satisfactory.

The proposition that the Electoral College was intended to protect the countryside from the cities is completely indefensible. Most of the population of every American state was rural in 1787. Rhode Island, the most urban state, was still over 80% rural. However, the writers of the Constitution were concerned about some states coming together to dominate political discourse; except they were concerned about states with high total populations, not large cities. Oliver Ellsworth of Connecticut complained that if states were represented by population, “4 States containing a majority of People will govern 9 other States.” The four most populous states at the time were Virginia (1.8% urban), Massachusetts (13.5%), Pennsylvania (10.2%), and North Carolina (0%) [New York (11.5%) would replace North Carolina if adjusted for the 3/5th Compromise]. Three states with over 10% urbanization were in the top five population-wise, but only Rhode Island (19%), the second smallest state, was left, no other state had over 6.6% urban population. City dwellers could not have even dominated state politics in any state, let alone national elections.

A modified version of this argument recognizes that all the states were agrarian in 1787, but suggests that the Electoral College should live on now, having gained the new raison d’etre of defending the agrarian mid-west from the coastal cities, a turn-about of Gouverneur Morris’s 1787 warning that the “poor but numerous” people who would settle in western states would “destroy or oppress the Atlantic States.” The watershed moment in moving the center of political power to the cities came in 1929 when “Congress, [having been] dominated by rural politicians who stood to lose clout in a quickly urbanizing nation, failed to reapportion its seats following the 1920 census, [passed an Act] so that apportionment would occur automatically following the 1930 enumeration.” Today, only four states have a rural majority: Maine, Vermont, West Virginia, and Mississippi. They are not known for their political similarity. If any other state today appears ruled by agricultural interests, it is attributable either to gerrymandering and other intrigue or else voters are individuals who take a more nuanced view of political decisions than whether or not they can see their neighbor’s house from their front door.

Slavery and Who Gets to Vote

Proponents of the slavery explanation point to the 3/5th Compromise in apportionment of Representatives (and indirectly, presidential electors). According to this argument, slaves, who obviously could not vote, counted toward the “vote total” of a state in the presidential election, giving slave states an unfair advantage over free states, without actually giving voice to a part of their population. However, at the advent of the Union, only two states eliminated slavery and allowed laborers to vote (Vermont and New Hampshire; although New Hampshire required payment of a poll tax). Pennsylvania had begun a phased abolition of slavery and had no property requirements beyond payment of a poll tax, but took the right to vote away from blacks in 1838. Massachusetts had eliminated slavery, and had no racial requirement for suffrage, but only allowed land owners to vote until 1821 and required voters to pass a literacy test. Delaware and Rhode Island allowed only whites to vote until 1870 (the 14th Amendment to the US Constitution) and 1842 respectively. New York and New Jersey, soon to be in the process of phasing out slavery, all had property requirements for decades after the Constitution; New York retained the property requirements longer for blacks after eliminating them for whites, while New Jersey limited suffrage to whites males when it dropped the property requirement in 1844. Therefore, almost all states had large numbers of people counted toward apportionment of Representatives who were disenfranchised because of their economic class or race, even if they were not enslaved (in 1792 Georgia, despite having about a third of its population enslaved, had among the highest number of votes cast per Congressional district, possibly because of its absence of property qualifications). This is not to mention that no state allowed anyone under twenty-one years old to vote, and only Georgia (in its 1789 constitution ) and New Jersey did not have constitutional provisions limiting suffrage to males (New Jersey barred women from voting in 1844 when it eliminated its property clause, and Georgia exempted women from poll taxes, which also effectively prevented them gaining voter eligibility under most circumstances — Georgia also did not disenfranchise non-whites in its constitution, but since acts of its legislature in 1799 granting citizenship to certain named “free persons of colour” specified that those individuals could not vote or serve on juries deciding the fate of white people, it seems unlikely that this policy was limited to those named individuals).

So far, the qualifications discussed have only been for the lower house of the state legislatures (and by extension federal Representatives). That is, the officers with the fewest constituents. But the requirements tended to get steeper as the constituencies grew. For instance, North Carolina imposed a property requirement for electing the upper house but not the lower, and many states, representing the majority of the national population, elected their governors through the state legislatures:

And nowhere in America could laborers vote for the President of the United States or electors for the President of the United States:

As leaders represent more citizens and are more remote, it becomes far less likely that individual voters have the time or attention to hold them accountable or assess their abilities before they take office. In 1790, each presidential elector would have represented 28,471 people, but half of those people would be female, about half would have been under 21, and of the remainder, many would have failed property ownership or racial tests. In reality, fewer than 5% of Americans voted in presidential elections until 1824 when most states started holding popular votes for president and the number jumped to nearly 10%. Ten percent of 28,471 is a voter pool of fewer people than elect some prom queens and is broadly consistent with the number of people who voted for U.S. Congressmen in 1792, ranging from around a thousand to just over six thousand per Congressman. Every eligible voter could reasonably be expected to know the candidates, at least in passing, since they were geographic and economic neighbors (not everyone knows the prom queen, but they have seen her in person and know someone who knows how she works in a group project).

Today, the average presidential elector (assuming they were evenly distributed and not lumped together by state) would represent 573,876 people, far more of whom would be eligible voters. Over 40% of the total population voted in recent elections. Somehow, someone must be found who will have the trust, through personal knowledge, of 230,000 people. Fortunately, Representatives already exist for these constituencies. There is unlikely to be much personal knowledge between those Representatives and their voters, leading campaigning and advertising (meaning money) to play a much greater role in these elections (my own district became temporarily famous for the amounts of out-of-state funding candidates received in 2017). But at least they face those voters every two years for an account of their performance, unlike Presidential Electors who disappear after casting their vote for the executive. The Founders’ defense that Electors would be free from foreign interference because they were not a sitting body did not anticipate either the expansion of the electorate or the advent of wire transfers.

One possible remedy to this would be to expand the Electoral College to its original scope. There would be 10,341 electors. Of these 1,243 would be in California; 840 would be in Texas. Each Elector would represent 30,211 people (or about 12,000 voters). This reduces the problem of voters not personally knowing who is on the ballot, but it makes the deliberative work the Electors were supposed to do more difficult (though less difficult than expecting the same be done by 150 million or so American voters today).

Federalism

As stated above, some were concerned that a few populous states would capture the Union and use it to force their will on the smaller states. James Wilson was concerned that the seven smaller states containing less than a third of all the population could do the same if each state had equal representation. Thus the two-chambers of the legislative branch each prevented one extreme.

Choosing the executive similarly had the potential to threaten the powers of the states. Charles Pinckney regretted the possibility that a popular election (even an indirect one) could mean that “the Citizens will be free and equal but the States will be unequal, and their sovereignty will be degraded.”

The Constitution does not establish the power to administer elections at the national level, nor does it allow Congress to determine voter eligibility. Article 1, Section 8 gives Congress the authority to “establish an uniform Rule of Naturalization,” which was done in 1790, but few of the states required citizenship in the United States as a qualification for voters until much later. Georgia did not limit votes to United States citizens until 1865, but then modified the language in 1868 to include any man “who has legally declared his intention to become a citizen of the United States.” States themselves had been in a similar position in regards to cities and towns. Urban centers, under English common law, could designate people as “freemen” of the town. A freeman was not simply a person not enslaved, but was a person given a specific grant of “freemanship” by the town or city that included certain rights (including voting, generally). A freeman was expected to be wealthy and of good character, but city leaders had discretion since in-town wealth was harder to measure than acres under tillage in the countryside. In America, New York’s property requirement could be met by being made a freeman of New York City or Albany.

By giving each state a finite number of votes, the Federal Government did not need to establish voter qualifications. States could restrict suffrage to the super wealthy or allow every resident to vote; those decisions would not affect the weight of a voter in the other states. The 14th, 15th, 19th, 24th, and 26th Amendments limit what criteria states can use to qualify voters, but there is still no national standard for who can actually vote. For instance, states differ on voting rights for convicted felons, on absentee voting, and on identification requirements, but there are other possibilities: a state could allow non-citizen residents to vote as some did in the past, or could deny the vote to enlisted members of the armed services as South Carolina did in 1810; in either case, the increase or decrease in the electorate of one state would not strengthen or cheapen that state’s position in the presidential election.

Further, a Constitutional oddity forced the hand of the states in turning the Electoral College to their own purposes. When the Electors met and voted, if a majority of that vote went to one person, that person was elected President. If only a plurality existed, then the House of Representatives would vote among the top five candidates to choose the President. When the House voted, each state delegation got one vote. It is not difficult to see that if Virginia, for instance, got twenty-one votes in the first round and only one in the second, then Virginia had a strong interest in making sure the election was decided in the first round. The same was true for every state with above-average population. Thus, states very early on expected all their Electors to vote together, and the Twelfth Amendment was adopted in 1804 to prevent vice-presidential preference from preventing a majority in the Electoral College. The Electors were no longer individuals making a reasoned vote for President under their own judgement, to which the voters of their districts deferred. Rather they were functionaries, their votes already determined, to the extent that their names likely do not even appear on ballots cast by voters.

Federalism, however, was defeated in the Civil War. The 14th Amendment limited the States’ authority to make certain kinds of laws. Among these, the federal government reserved the right to reduce the number of Representatives a State receives if it does not allow all of its adult male citizens to vote. Later amendments prevent States from preventing voting by women, people not taxed, people failing a literacy test, and people older than 18. Other amendments also mandated that Senators be elected directly and allowed the National government to collect taxes directly from citizens rather than only from States and international commerce. The National Guard Act of 1903 effectively put all the armed forces of the United States under national control for the first time. The New Deal extended national authority over labor laws (after the Battle of Blair Mountain and similar eruptions of violence). The States remain the workshops of governance, but true federalism was dead in America by the middle of the 20th century.

Executive Independence

As mentioned above, many of the state governors were appointed by their state legislatures. The executives of some other democratic countries are chosen in the same way: the Prime Minister of the United Kingdom, for example (although in 1787, the King still had far more practical power). However, some of the Founders saw this as making the executive too dependent on Congress. Recent presidential elections have shown that the reverse is true. Congress is dependent on the President: presidential debates are largely over legislative initiatives rather than executive function, and legislative races often focus on who is most or least friendly toward the current president (the debate for a Georgia federal senate seat in 2002 was an argument between two men of different parties over which was most likely to support President Bush — the one who was actually in the same party as the President won).

Meanwhile, the Vice-president had to be tied to the President selected to prevent selecting a President's chief opponent as their immediate successor. This has led to Vice-presidential candidates who were chosen to add to the Presidential nominee's base of appeal rather than being a second best option for chief executive (not always with the intended results). The choice of Vice-president is left to party officials rather than a democratic process, even indirect (except as a reflection on their running mate's judgement, where the Presidential candidate benefits or loses based on their selection).

George Mason’s Plan

George Mason suggested in 1787 that the House of Representatives should elect the President to a single, non-repeatable term of seven years. It was a simple solution to the problem of electing the President. It remains simple, and the advantages of the alternate system have evaporated as the population grew and power transferred from states to the national government. A modern solution might keep the President's four-year term, limited to one term, and require that the elected President not be a sitting member of the House.

Separation of the People from the monolith of presidential election decreases the chance of unrest on a large scale while preserving the People's choice indirectly.

Presidents would be selected by a small number of people likely to have personal knowledge of the candidates and of the capabilities and temperament needed for the job, while the People would be refocused on electing those Representatives close enough to them for them to learn about them personally. Moneyed interests would be weakened in politics.

States would retain control over voter eligibility and electoral process, allowing more flexibility for innovations including ranked-preference voting, voter ID and security rules, or internet-based voting.

Very small states would retain a disproportionate role in electing the President, but their asymmetric power would be somewhat reduced by dropping two votes (the Senate votes) from each state.

The legislature could no longer blame the President (or the Supreme Court) for its actions or inactions as the President was its own selection.

The problem of the Vice-president is solved because the House, now in session full-time, can replace the President quickly in need, so the President Pro Temp of the Senate need stand in for an incapacitated President only until the House can elect a new one.

Conclusion

The most important benefit conferred by elections is the trusted process of peaceful transitions of power. Who actually becomes President is far less important than that Americans generally respect the process and are content to wait for the next election to overthrow the government. In The Federalist 68, Alexander Hamilton suggested that the Electoral College would be less given to “heats and ferments” and insulate the people from the same reckless passions.

Few in 2020 would suggest that the American public is not immolated in heats and ferments over a presidential race that might be uncontroversially described as raging across the country. Eliminating both the Electoral College and the popular vote for the chief executive as described above would quell tempers, stabilize the executive branch, limit the role of money in presidential politics, and restore legislative responsibility to the legislature by refocusing voters on their Congressional and local leaders who could no longer use the President or the Supreme Court as scapegoats for their procrastination.

The House of Representatives was always meant to be the final decider in Presidential elections. Let's return this power to its proper place before we tear ourselves apart.