That Damned Electoral College

        As we approach Presidential election time once again, we Are beginning to hear the reawakening of the “abolish the electoral college” supporters’ mantra. While there are issues with the concept, my intent here is not to support the College as a concept, but rather to explain why it is as it is and why the real issue isn’t the Constitution but state legislatures

        The Electoral College idea actually derives from several concepts. Initially, in the days when many individuals may well have travelled no more than 10 or 12 miles from their home, in any given year, there was some sentiment that most would never see (or being marginally literate in many areas) read the positions or opinions of a candidate for the Presidency. This led persons like Alexander Hamilton and, at the time James Madison to originate the concept with the stated purpose of insuring that only "fit" persons (as in not Kanye West or Pat Paulson) were elected by insuring that responsible, and presumably informed  persons were chosen as electors.  The choosing of the electors, oddly enough, is not specified. Right up front this means if not mandated in the Constitution it is relegated to the authority of the states. In essence, this means that parties choose stalwart supporters to go to the state capitol and cast their electoral votes. It's a sort of pat on the head perk for being a loyal partisan.

        It is of critical relevance that, at the time of the framing and the writing by Jay, Hamilton and Madison of the federalist papers, there were certainly regional interests but no true parties and even 8 years later, George Washington in his farewell address advised American citizens to view themselves as a cohesive unit and avoid political parties and issued a special warning to be wary of attachments and entanglements with other nations. So, for the first two presidential elections, there were candidates but not really parties. This was to change (no shit!)

        In justifying the use of the Electoral College (in Federalist 68, March 12, 1788) Hamilton focuses on a few arguments dealing with why the college is used, as opposed to direct election. First, in explaining the role of the general populace in the election of the president, Hamilton argues that the "sense of the people", through the election of the electors to the college, should have a part of the process, but that those who actually choose should be, (and Hamilton absolutely viewed himself thus):  "Men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice."   In other words, the elite among us. Remember, there was really no party system in place and the sense was far different than what it has become.

        In what has evolved into a two party system, with the odds stacked against third or even fourth party efforts, the states have led the way, especially after the Civil War,  by making it extremely difficult to get on the ballot if you aren't  Republican or Democrat. It hasn't always been so, and the election of 1824 demonstrates the flaws in the system.

        In that year there were actually four candidates for the presidency: Andrew Jackson, William Crawford, Henry Clay and John Quincy Adams. And (wait for it) all four actually called themselves Democratic - Republicans, which today sounds a bit strange in its own right. Then, as now, a majority (more than 50%) of the electoral votes was needed to win the White House. At 151,271 popular votes, Jackson still only had 41% of the electoral vote, Adams with 113,122 popular had 31% electoral, Clay - with 47,531 popular, had 13% electoral, and Crawford with 40,856 popular had 10% electoral.

         In such a case, the Constitution requires that the winner be decided by the House of Representatives with each state getting one vote, casting ballots until a majority of states for one candidate is reached. In other words, if this happened again (which it never will) there would be 50 votes which would determine the presidency, but each vote would represent the majority vote of each individual state’s House Members. Surprisingly, the Senate would watch from the sidelines.  This is critical, and a reason why there will likely continue being an Electoral college for some time. This is the one and only time in the House where tiny Rhode Island, Delaware, or Hawaii or sparsely settled states like Wyoming or Idaho carry as much political clout as New York, California, Pennsylvania, or Virginia. any attempt to change this would require a Constitutional Amendment, which (in the usual manner) starts in the Senate with a 2/3 approval vote. It is unlikely that senators would vote to take from the smaller states the "equal power" their House delegations have under that set of conditions.

          In 1824, per the Twelfth Amendment, only the top three vote getters entered this new and very different election. Clay, actually third highest vote getter, was speaker of the House and as such was left out, but he publicly (and strenuously) declared his support for J.Q.Adams. On the first ballot, the results were Adams 13, Jackson 7, Crawford 4. Every single New England state and New York supported Adams, who won the Presidency with the votes of 54% of the states. It was later alleged that Clay was offered the secretary of State gig by Adams, which he accepted, in exchange for his support in the House. Jacksonians screamed that it was a "corrupt bargain." In any case it was also a situation where Jackson had 11% more of the popular vote than the eventual winner! This was the first such instance, there would be three more before 2016, the fifth time it has happened.

        I find it interesting that after the 1824 election, all of the remaining 4 minority popular vote winners (Hayes, Harrison, Bush43 and Trump) were Republicans.  In each case, as in the current one, critics decried the Electoral College and the process.  Since 1864, 6 third party candidates have actually received more than 20 electoral votes, with Roosevelt's Progressives getting 88 in 1912. In all those cases, however, the winner still had a majority of the electoral vote, thus avoiding an 1824 replay.

        What could be done without an Amendment? It's actually a simple fix, since the apportioning of votes to electors is delineated by each state, and the Constitution is mute on the issue. 48 of 50 states at present are "all or nothing" as far as electoral votes. These states have chosen to do this because they are playing the odds that they are likely/historically to support one party a majority of the time. In these states, if a candidate wins the popular election by 3 votes, they still get all the electoral votes! Florida in 2000 was a perfect example. Republicans were delighted that all 29 Florida electors were Republican even though the state was so close that …well, you know, it’s still painful. Only Maine and Nebraska allow for splitting electoral votes.

         Although it is possible for an Elector to cast his or her vote for someone other than for the popular vote winner in their state, this is quite rare in modern times. As a result, electoral votes for a state tend to be "all or nothing".  Maine and Nebraska, as mentioned, take a slightly different approach. Both states allocate two Electoral Votes to the popular vote winner, and then one each to the popular vote winner in each Congressional district (2 in Maine, 3 in Nebraska) in their state. This creates multiple popular vote contests in these states, which could lead to a split Electoral Vote. This, if adopted by each state would much more closely approximate a popular vote without touching the Constitution. In fact, most Americans don't realize how little election law is really federal! Other than the Electoral College, the remaining Federal laws related to voting are the specification for the day of election (first Tuesday after the first Monday of every other even numbered year), and the  26th Amendment which lowered the voting age to 18. That's it!

        In summary, partisan politics at the state level and the nation’s evolution into a two-party system have made the Electoral College far less effective in reflecting the majority will of the people (at times) than it could be. Don’t blame the Constitution for the malfeasance of state governments in distorting the operation of the Electoral College.