Defending the Electoral College

Preface (2024)

Looking back on my essay after 24 years, finishing this preface the day before Election Day in 2024, I am struck both by how prescient my original thoughts were and how shocked I would later be by the end stage of Trumpism, utterly horrified by the attack on the Capitol on January 6, 2021, and the evolution of the MAGA movement into exactly what the framers most feared: “Historically, it is the Electoral College system which has made it effectively impossible for [Ralph] Nader, or Pat Buchanan, or Ross Perot, or George Wallace, or Eugene V. Debs, or the ‘Bull Moose,’ or the ‘Free Silver,’ or even Nazis and Communists, ever to stand a credible chance of winning a presidential election.” Where MAGA succeeded when all such precursors failed is that it seems to command the support of about 40% of the voters, despite a Donald J. Trump rally Oct 27 in Madison Square Garden that featured speakers and rhetoric so extreme that it evoked comparisons to a literal Nazi rally at the same location in 1939.

The purpose of the January 6 Capitol riot was to introduce fake electors to interfere with the ceremonial and ministerial counting of Electoral College ballots, exploiting century-old statutory ambiguities that had to be fixed in 2022. Whatever else it did, the unprecedented violence during the counting of Electoral College ballots brought enormous public attention to what had remained until then a dry and obscure matter of constitutional law.

Importantly, as I predicted 24 years ago, the Electoral College successfully prevented the emergence of a significant far-right or far-left party as we have seen in that period throughout Europe, with supra-national parties such as Identity and Democracy and Europe of Sovereign Nations, with national components such as Alternative für Deutschland (Germany), Brothers of Italy, and Rassemblement National (France). While the American constitution has prevented the development of extremist third parties, for the first time in almost 250 years the system is being stress-tested by the degradation of one of the two major political parties careening away from the center to become an extremist and populist party under a strongman authoritarian. As I noted in a review of Strongmen by Ruth Ben-Ghiat, the United States has no magical immunity from those who seek to undermine democratic principles, hardly a new phenomenon as I noted one week before the 2016 election, but there is a history and tradition of rule-of-law, of which the Electoral College is a prominent example.

Preface (2020)

I wrote this op-ed in 2000 before the election that landed George W. Bush and Al Gore in a court fight over Florida. It was rejected after repeated back-and-forth with the editorial page editor of The Providence Journal because a split between the popular and electoral vote was then thought so unlikely, having last occurred in 1888, as to render my op-ed irrelevant. It was clear to me the 2000 election would be closely polarized in very much the same way as the 1888 election and, while a split seemed unlikely, it was a very real possibility. Now, 20 years later, these prescient observations remains relevant.

If I wrote this from scratch today, I would acknowledge the surprising popularity (due to the 2015 musical) of Alexander Hamilton, who wrote Federalist No. 68. That is actually a minority view: his expressed lack of trust in the people to choose the president has come down to us as indicative of the consensus of the Constitutional Convention, which it was not. Hamilton was an extreme outlier on the issue, having advocated a lifetime appointment of the president, an idea that got no support from anyone else because of its uncomfortable similarity to monarchy. Hamilton unrealistically wanted the president to be above politics and therefore, like a king, not susceptible to bribery or undue influence from factions or foreign powers. He doubtlessly had in mind, as did everyone else, the man he most admired in his life, his mentor and father figure George Washington.

As a result, Hamilton’s anonymously published explanation spins the actual result, the Electoral College, as a good thing — consistent with his own priority that no one of corrupt character should become president. (Hamilton would have assumed that a billionaire would be an ideal president because his wealth would make him impervious to emoluments, but he would have been horrified by Trump.)

Direct election of the president was never seriously considered because neither the slave states nor the less populous states would have accepted it, and they favored selection by the Congress or some similar system. The Electoral College was a political compromise that was as close to direct popular election as the slave states would allow, but Hamilton, who hated slavery with a passion, could not explicitly say that for fear of hurting the cause of ratification.

I could not have known when I wrote this about the emergence of the Tea Party movement a decade later, but it turned out to have roughly the same ten-year maximum shelf-life as the Know Nothing Party of the 1840s and the Reform Party of the 1990s. In hindsight, it was the election of Donald Trump in 2016 that proved to be the most extreme split between the popular and Electoral College vote in American history, but his candidacy was possible as the end stage of the process set in motion by the Tea Party. Whatever else one may think of Trump, he has retained a consistent 40-45% approval rating since his election, and that much political support is not a marginalized faction of the sort the Electoral College was designed to suppress.

The Electoral College and Its Benefits (2000)

Text within square brackets was added in 2020 for contextual clarity.

It is not a very popular idea these days to defend the Electoral College. There is a widely believed myth that it was created because the writers of the Constitution did not trust the people to elect the president directly, and so required the “electors” to serve as middlemen. In fact, the reasons for the creation of what seems at first an unnecessarily complicated process are well known, as the people who designed the process were fairly clear about their purposes. More importantly, the existence of an Electoral College has already [in advance] played a major role in the 2000 presidential election that is not often recognized.

For those who may be less familiar with the arcane issue, the Constitution provides that the president is actually elected by an “Electoral College” whose members are themselves usually elected by the people. Each state is entitled to have the same number of electors as it has congressional representatives. For example, Rhode Island, with two members of the Senate and two members of the House, is entitled to four electors, and California, with two members of the Senate and [as of 2000] 52 members of the House, is entitled to 54 electors. Although each state can decide how to allocate its own electors, all but two states [Maine and Nebraska] award their entire electoral vote to whichever candidate wins the most popular vote in the state.

A majority of the electoral vote, or 270 votes, is required to win the presidency. If no candidate receives a majority of the electoral votes, the Constitution provides that the House of Representatives, counting one vote per state, will choose the president. The Electoral College never actually meets: the votes are all cast on paper, with the electors actually voting in their own respective state capitals.

On the one hand, this system favors the more populous states, since a slim margin in a large state, such as California or New York, counts for a great deal toward winning the electoral vote count. On the other hand, the allocation favors the less populous states because of the practice of counting senators: a single electoral vote in a less populous state, such as Wyoming or Vermont, reflects fewer voters than does a single electoral vote in a more populous state. As with nearly everything else in the Constitution, this arrangement was worked out as a delicate compromise.

Certainly, it was not a desire to separate the people from the election process which led to the creation of the Electoral College. The same men who wrote these rules also required the entire membership of the House of Representatives to stand for election every two years, and they specifically intended that as a mechanism for the people to maintain close control of their government. They wanted to avoid some very specific dangers which they saw looming in the nation’s future. And, to a remarkable extent, their worst fears proved to be perfectly on target.

The most serious concern of the founders was to prevent the election of a president who would favor one region against another: farm states against commercial states, northern states against southern states, urban states against frontier states, and so on. The founders also expected that each region would put forward its own candidate, usually resulting in four or five candidates competing in an election. The founders seem to have expected that most presidential elections would end up decided by the House of Representatives, not by the Electoral College. This is not, of course, how things worked out, and the House has not had to choose a president since John Quincy Adams was elected in 1824, when a four-way split of electoral votes with Andrew Jackson (who received more electoral and more popular votes than Adams), Henry Clay, and William H. Crawford prevented any candidate from receiving a majority.

The historical impact of the Electoral College has been to provide a strong incentive for a two-party system with both parties trying to stay centrist. Whether this is good or bad is another matter, but there is no doubt that the best hope for a strong third-party candidate would be to force the election into the House, and the best hope for a weak third-party candidate would be to siphon votes from one of the two major candidates. In 1992, for example, Ross Perot managed to amass about 20 million votes against Bill Clinton’s 45 million and George H.W. Bush’s 39 million without winning a single state or electoral vote. Although much less successful in 1996, Perot still received about 8 million votes against Clinton’s 46 million and Bob Dole’s 38 million. Many analysts hold the opinion that Perot’s candidacy in 1992 cost Bush the presidency, although there really is no way to know.

Paradoxically, it is the Electoral College that makes third-party candidates viable, even if not electable. In a close election such as between George W. Bush and Al Gore in 2000, the Green Party candidacy of Ralph Nader would be doomed if not for the existence of “safe” states. Everyone tacitly acknowledges that Bush is as likely to win, say, Rhode Island and Massachusetts as he is to part the Red Sea, so Nader supporters in such safe states are confident that they can vote their consciences without having to worry about the political consequences of voting for Nader instead of Gore, since most of them would rather see Gore than Bush elected. Nader, it is understood, is really trying to reach the 5% threshold needed to qualify the Green Party for federal matching funds in 2004, and without the Electoral College system that would be a great deal more difficult in a close election between the two major party nominees. [Nader unexpectedly proved the spoiler in Florida, tipping the presidency from Gore to Bush.]

The most frequently heard objection to the Electoral College, however, is that it makes it possible for a candidate to win the popular vote but lose the electoral vote, and this is often said to be grossly undemocratic. Again, this was part of the intention of the founders in writing the Constitution, to prevent larger states from dominating smaller states. It is also, judging by history, very unlikely.

The last time a candidate won a majority of the electoral vote and lost the popular vote was in 1888, when Benjamin Harrison, a Republican, defeated Grover Cleveland, a Democrat. Cleveland had been elected in 1884 against James G. Blaine in a very close contest, Cleveland carrying about 4.88 million votes to Blaine’s 4.85 million. In 1888, Cleveland received 5.53 million popular votes but only 168 electoral votes against Harrison’s 5.44 million popular votes and 233 electoral votes. The historical context is important, since the core strength of the Democrats in that era was in the southern states which had formed the Confederacy in the recent (1861-1865) Civil War. Harrison, a Union war hero who had received a battlefield promotion to brigadier general, was reviled by southerners, and as a result Cleveland carried most of the southern states by 2-to-1 and even 3-to-1 margins in the popular vote. The Electoral College did exactly what the founders intended by preventing these hugely lopsided regional preferences from deciding the national election.

Ironically, it may well have been a third-party candidate which cost Harrison re-election in 1892, allowing Cleveland to become the only president [so far] to return to office after a hiatus. The main issues of the day were economic, with Cleveland supporting what we would today call a free trade and tight monetary policy and Harrison supporting protective tariffs and looser monetary policy. The dispute over monetary policy manifested in the question of whether to coin money based upon silver instead of just gold, and Populist James B. Weaver, who advocated the very loose monetary policy of “free silver,” managed to carry 1.0 million popular votes and 22 electoral votes in the 1892 election, against Cleveland’s 5.6 million popular and 237 electoral votes and Harrison’s 5.2 million popular and 145 electoral votes.

Harrison gets relatively little respect from historians, but his most important achievements, such as the passage of the Sherman Anti-Trust Act in 1890, were essentially populist in nature, so the irony of his defeat at the hands of a third-party populist is profound. Cleveland would turn out to be not only the first Democrat elected president since James Buchanan in 1856, but also the last until Woodrow Wilson in 1912 – yet another beneficiary of a third-party split occasioned, in that case, by former Republican Theodore Roosevelt running under the “Bull Moose” label against incumbent Republican William Howard Taft.

One big question remains. In 2000, if the president were to be elected by winning the electoral vote while losing the popular vote, what would the public reaction be? Many experts have said that, if this were to happen, it would mean the immediate end of the Electoral College because of public outrage, but this seems very doubtful. For one thing, the only way to change the system is by amending the Constitution, and that requires proposal by the Congress and ratification by the legislatures of three-fourths of the states. The small states would tend to be opposed because direct popular election of the president would make them almost irrelevant in a national campaign, and the large states would likewise tend to be opposed because their weight would be diluted without a winner-take-all electoral vote at stake.

The American people are not stupid. They would understand that the Constitution is built upon certain compromises which make everything work. The Electoral College is no more or less an example of this than the practice of each state having two senators, regardless of population, and everyone clearly realizes why this similarly “undemocratic” allocation is not likely to change.

Most importantly, neither of the two major parties would see it in their interest to make any change to the Electoral College system, and nearly all of the members of Congress and the state legislatures, who would have to vote on constitutional amendments, are members of one or the other major party. It is the Electoral College which forces a presidential candidate to run a truly national campaign, preventing a third-party candidate from playing on strong regional strength or other limited appeal to dominate the election. Ralph Nader has made a point of saying that he sees little difference between the candidates of the two major parties, and that is hardly surprising because it is exactly the sort of consensus result which the Constitution was written to encourage. Historically, it is the Electoral College system which has made it effectively impossible for third party candidates ever to stand a credible chance of winning a presidential election.

One could argue, with a fair amount of justice, that a mechanism enshrined in the Constitution specifically for the purpose of promoting consensus and preserving the status quo is not entirely desirable. However, it must also be admitted that the United States has never been seriously threatened by any sort of extremist party of the sort which has proven so troublesome in European-style parliamentary systems. Neo-fascists and racists commanding double-digit percentages of the popular vote, such as Jean-Marie Le Pen’s Front National in France or Joerg Haider’s Freedom Party in Austria, have never been able to acquire enough of a following in the United States to become significant participants in the process of governing, unlike in Europe where proportional representation has allowed them to reach levels of strength where they could sometimes force their way into a government coalition. The few times that extremist parties seemed to gain a little bit of influence in the United States, such as with the anti-Catholic, anti-immigrant “Know Nothing” Party of the 1840s, proved to be very brief and were rendered irrelevant after roughly the same ten years or so that the Reform Party has taken to reduce itself to irrelevancy today. Every so often in the United States, we get a socialist mayor or a former professional wrestler as a governor, but that has been about the limit of our collective political experimentation.

Even if the American presidency does end up being decided in 2000 with the electoral and popular vote going in opposite ways, the most likely outcome will be a very long and involved civics lesson, possibly taking years, but the end result will be that the Electoral College survives nearly unchanged.