There is hardly anything in the Constitution harder to explain or easier to misunderstand than the electoral college. And when a presidential election hands the palm to a candidate who comes in second in the popular vote but first in the electoral college tally, our democratic viscera balks and asks why the electoral college shouldn't be dumped as a useless relic of 18th-century white gentry privilege.
There have been only five occasions when a closely divided popular vote and the electoral vote failed to point in the same direction. No matter. After the recent election results, we're hearing the electoral college is undemocratic, the electoral college is unnecessary, the electoral college was invented to protect slavery.
All of which is strange because the electoral college is at the core of our system of federalism. The Founders who sat in the 1787 Constitutional Convention lavished an extraordinary amount of argument on the electoral college, and it was by no means one-sided. The great Pennsylvania jurist James Wilson believed that "if we are to establish a national Government," the president should be chosen by a direct national vote of the people. But wise old Roger Sherman of Connecticut replied that the president ought to be elected by Congress, since he feared that direct election of presidents by the people would lead to the creation of a monarchy. "An independence of the Executive [from] the supreme Legislature, was in his opinion the very essence of tyranny if there was any such thing." Sherman was not trying to undermine the popular will but to keep it from being distorted by a president who mistook popular election as a mandate for dictatorship.
Quarrels like this flared all through the convention until at almost the last minute, James Madison "took out a Pen and Paper, and sketched out a mode of Electing the President" by a "college" of "Electors ... chosen by those of the people in each State, who shall have the Qualifications requisite."
The Founders also designed the operation of the electoral college with unusual care. The portion of Article 2, Section 1, describing the electoral college is longer and descends to more detail than any other single issue the Constitution addresses. More than the federal judiciary, more than the war powers, more than taxation and representation. It prescribes in precise detail how "Each State shall appoint ... a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress"; how these electors "shall vote by Ballot" for a president and vice president; how they "shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate" the results of their balloting; how a tie vote must be resolved; what schedule the balloting should follow; and on and on.
The electoral college had nothing to do with slavery. Some historians have branded the electoral college this way because each state's electoral votes are based on that "whole Number of Senators and Representatives" from each State, and in 1787 the number of those representatives was calculated on the basis of the infamous 3/5ths clause. But the electoral college merely reflected the numbers, not any bias about slavery (and in any case, the 3/5ths clause was not quite as pro-slavery a compromise as it seems, since Southern slaveholders wanted their slaves counted as 5/5ths for determining representation in Congress and had to settle for a whittled-down fraction). As much as the abolitionists before the Civil War liked to talk about the "pro-slavery Constitution," this was more of a rhetorical posture than a serious historical argument. And the simple fact remains, from the record of the Constitutional Convention's proceedings (James Madison's famous Notes), that the discussions of the electoral college and the method of electing a president never occur in the context of any of the convention's two climactic debates over slavery.
If anything, it was the electoral college that made it possible to end slavery, since Abraham Lincoln earned only 39 percent of the popular vote in the election of 1860 but won a crushing victory in the electoral college. This in large measure was why Southern slaveholders stampeded to secession in 1860-61. They realized that the electoral college would only produce more anti-slavery Northern presidents.
Yet it is hard for Americans to escape the uncomfortable sense that by inserting an extra layer of "electors" between the people and the president the electoral college is something less than democratic. But even if we are a democratic nation, that is not all we are. The Constitution also makes us a federal union, and the electoral college is pre-eminently both the symbol and a practical implementation of that federalism.
The states of the union existed before the Constitution and long before the revolution. Nothing guaranteed that in 1776 the states would all act together, and nothing guaranteed that after the Revolution they might not go their separate and quarrelsome ways. The genius of the Constitutional Convention was its ability to entice the American states into a "more perfect union." But it was still a union of states, and we probably wouldn't have had a constitution or a country at all unless the route we took was federalism.
The electoral college was an integral part of that federal plan. It made a place for the states as well as the people in electing the president by giving them a say at different points in a federal process and preventing big-city populations from dominating the election of a president.
Abolishing the electoral college now might satisfy an irritated yearning for direct democracy, but it would also mean dismantling federalism. After that, there would be no sense in having a Senate (which represents the interests of the states), and no sense even in having states except as administrative departments of the central government. Those who wish to abolish the electoral college ought to go the distance and do away with the entire federal system and perhaps even retire the Constitution, since the federalism it was designed to embody would have disappeared.
None of that is liable to produce a more democratic election system. There are plenty of democracies, like Great Britain, where no one ever votes directly for a head of the government. But more important, the electoral college keeps presidential elections from going undemocratically awry because it makes unlikely the possibility that third-party candidates will garner enough votes to make it onto the electoral scoreboard.
Without the electoral college, there would be no effective brake on the number of "viable" presidential candidates. Abolish it, and it would not be difficult to imagine a scenario where, in a field of a dozen micro-candidates, the "winner" only needs 10 percent of the vote, and represents less than 5 percent of the electorate. And presidents elected with smaller and smaller pluralities will only aggravate the sense that an elected president is governing without a real electoral mandate.
The electoral college has been a major if poorly comprehended mechanism for stability in a democracy, something which democracies are sometimes too flighty to appreciate. It may appear inefficient. But the Founders were not interested in efficiency; they were interested in securing "the blessings of liberty." The electoral college is not a bad device for securing that.
Editorial on 11/20/2016