The Electoral College in Short

So, that being said, why do we have an Electoral College?  The answer is clear from the debates at the Constitutional Convention.  The Founders did not anticipate political parties; indeed, they regarded parties at best as corrupt, and at worst as sinister conspiracies.  Without political parties, there was really no way of establishing a national candidate.  Granted, everyone at the time agreed that George Washington would be the first President, but only because he was commanding general in the War of Independence.  In the absence of so eminent a figure, it was assumed that there would not be any national candidates, but instead that the people of each state would choose the most eminent leader in their own state, and that there would be thirteen candidates.  (More as more states were added).

The alternative was general seen as election by Congress.  This had the disadvantage of election by a standing body and opened the door to corruption and intrigue.  It also destroyed the independence of the executive and made him subordinate to the legislature.*

The Electoral College allowed each state to make its choice clear -- clearer than an attempt to aggregate all the votes from all the states.  By having the Electors chosen solely to choose a President and meet separately each in their own state, the system reduced the likelihood of conspiracy or corruption.  Requiring each Elector to choose a second candidate from outside of the state, they gave an opportunity for a candidate of national prominence to win.  Having Congress choose from among the top five candidates rested on the assumption that each state would have a different winner.  Congress would choose the winner from the five largest states.

And, it should be noted, this system was not controversial at the time.  Indeed, in Federalist Paper No. 68, Hamilton commented:

THE mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the President is pretty well guarded.

 Yet it became apparent as soon as the very first election that the Electoral College was seriously flawed.  As originally written, whoever each elector was required to vote for two candidates, at least one of whom was not from his own state.  Whoever won the most votes would be the President and the runner-up would become Vice President.  It became clear with the very first election,even though everyone knew that George Washington would be unanimously elected, that if the Electors all voted for the same candidate for Vice-President, there would be no legal distinction as to which was which. By the time John Adams ran for President, candidates were beginning to run in pairs, with one as candidate for President and one for Vice President.  But electors often split their tickets, with the result that Adams was elected President and his rival, Jefferson, became Vice President. Adams' administration was continually hampered by having his leading rival as embedded in his government and impossible to remove.

In turn, when Jefferson was elected, there was no ticket splitting, and the team of Thomas Jefferson and Aaron Burr.  But there was no official rule as to which of them was President and which was Vice President.  Even though everyone knew Jefferson was supposed to be President and Burr Vice President, officially they were declared a tie and the House went until February, with 36 ballots and all manner of intrigue before finally voting in favor of Jefferson.  After this the Twelfth Amendment  was enacted, arranging for the President and Vice President to run as a pair, with clear rules as to which was which.  The rule as to how the House would vote in case of tie remained.

This procedure has been used only once since, in the 1824 election, when the Electoral College split among four candidates.  Although Andrew Jackson won the most electoral and popular votes, Henry Clay (then Speaker of the House) swung the House in favor of John Quincy Adams in exchange for being appointed his Secretary of State.  Jackson and his followers were understandably outraged and went on to win the following election.  On the whole, though, the system of breaking Electoral College deadlocks by the House of Representatives, voting by states, has proven a very bad one in the few cases that it has been used.  Many believe that the Supreme Court's ruling in Bush v. Gore was intended to avoid the crisis associated with a repeat performance.

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*Later governments would develop a parliamentary system that would, in fact, make subordinate of the executive to the legislature work perfectly well.  But it required strong, well-disciplined political parties, a thing no one anticipated at the time, and a flexible election system that allowed calling new elections in case of an insurmountable political crisis.

Why Do We Have an Electoral College?

I usually use my other blog to post on topical subjects, but the subject of the Electoral College and why we have it has been in the news lately.  Some say it is because the Founding Fathers distrusted the common people and wanted to put a buffer between them and election of the President.  Others say it was to prevent the rise of populist demagogues, or to protect slave states.

My history of law professor saw it as something far more innocent -- the unfamiliarity of the whole practice of tabulating votes over a wide area.  Yet the four New England state and New York all had popularly elected governors and tabulated voted across the state.  The New England states were even experimenting with the referendum.  Massachusetts and New Hampshire submitted their new state constitutions to a referendum.  Connecticut and Rhode Island stuck with their colonial charters, which gave them more autonomy than the other colonies, but they were the only states to have popular election of delegates to the Continental Congress, and Rhode Island also held a referendum on the constitution.  It is true that the practice was less familiar in other states, and that the New England states and New York were held up as examples of why popular election over a large territory was feasible.

But something else was at work.  To truly understand why we have the Electoral College, it is better go go back to when it was actually instituted, i.e., at the Constitutional Convention.  Other than the issue of equal representation in the Senate, no issue at the Constitutional Convention proved so difficult as how to choose a President.  

The Virginia Plan, introduced on the second day of the Convention as the backbone of the ultimate Constitution, proposed for the National Executive to be chosen by the Legislature.  The subject next came up June 1, when James Wilson of Pennsylvania proposed a one-man executive, a proposal which caused some controversy at first.  As for the means of selection:

Mr. WILSON said he was almost unwilling to declare the mode which he wished to take place, being apprehensive that it might appear chimerical. He would say however at least that in theory he was for an election by the people. Experience, particularly in N. York & Massts., shewed that an election of the first magistrate by the people at large, was both a convenient & successful mode. The objects of choice in such cases must be persons whose merits have general notoriety.

So, the whole idea of direct popular election of a national executive at first seemed "almost . . . chimerical."  But why?

The first response to Wilson was from Roger Sherman of Connecticut responded by calling for election by the Legislature and a clear subordination of the executive to the legislature, saying that he considered independence of the executive "the very essence of tyranny."  Given his way, Sherman would presumably have created something like a parliamentary system.  His view did not prevail; rather, the general assumption at the time was that independence of the executive from the legislature was essential to liberty.  George Mason of Virginia "favors the idea, but thinks it impracticable. He wishes however that Mr. Wilson might have time to digest it into his own form." Presumably he meant the logistical details that were set forth in such painstaking detail in Massachusetts. Election by the National Legislature remained in force, at least for the time being.

The subject was next broached July 17, by which time a single executive was accepted as uncontroversial. That undemocratic cynic, Gouverneur Morris favored popular election of the national executive to keep him independent of the legislature.

He ought to be elected by the people at large, by the freeholders of the Country. That difficulties attend this mode, he admits. But they have been found superable in N. Y. & in Cont. and would he believed be found so, in the case of an Executive for the U. States. 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.

 Sherman again disagreed, no longer arguing for subordination of the executive to the legislature, but saying that if the people vote, they will not know who is of national importance and always choose someone from their own state, so the largest state will always win.

Wilson gives us another example of what might be intended by the difficulties of popular election.  The main example in 1787 of popular election of an executive was in Poland, where the king was elected by the nobility, who made up about 10% of the population.  They nonetheless assembled on one place to hold the election -- a vast plain, where they all showed up armed to the teeth.  Election usually degenerated into battle.  If the country was lucky, the battle proved decisive and a victor was declared.  If the country was unlucky, the battle would not be decisive and civil war would ensue.  No wonder people hesitated at popular election!  He also proposed that, if a majority could not be reached, the legislature could vote among the top candidates.  That would avoid at least the intrigue involved in election by the legislature.

Charles Pinckney of South Carolina expressed a fear that the people of the large states would conspire to elect one of their own, to which Morris replied that the people would be too numerous to conspire; only the legislature could conspire.  He also denied that the people would be too ill-informed to elect an executive.  They would be ignorant of all the in's and out's of the legislature, but not of the most eminent men on a national scale.  George Mason disagreed, saying that the U.S. was simply too large for the people to be aware of the best candidates and "He conceived it would be as unnatural to refer the choice of a proper character for chief Magistrate to the people, as it would, to
refer a trial of colours to a blind man."  Hugh Williamson of North Carolina warned that, although the most distinguished characters on a national scale were known now, they might not always be known in the future, so people would choose and eminent character from their own state and the largest state would always win.  He then warned the Virginians that their state would not prevail because so large a share of its population were slaves.  And he proposed limits to a single term, and a fixed salary to keep the executive independent of the legislature.  Election by the National Legislature again remained.

The subject arose again two days later,  This time Madison raised objections to election of the executive by the legislature, saying that he wanted to guarantee the independence of the executive, and that the people would choose someone well-known and respected.  His only difficulty was with slavery -- the slave states would lose because of their large non-voting populations, so he proposed electors instead.  Elbridge Gerry opposed both election by the Legislature as denying executive independence, and by the people, for fear the executive would never dare take necessary but unpopular actions.  He proposed election by electors chosen by the state executives.  (This presumably mean the Governor and Council, the form of executive in almost all states).  Oliver Ellsworth proposed election by electors roughly in proportion to each state's population.  This proposal passed with the support of all states except the Deep South.  A vote for electors to be chosen by state legislatures also passed.  Dispute over how to apportion electors continued the next day, with the usual large state-small state conflict.

Four days later, election was once again returned to the National Legislature, but met with immediate push back, again over concern for executive independence.  James Wilson went so far as to propose election by a select number of legislators, chosen by lot, and to act immediately, in order to avoid intrigue.  This strange method of election actually passed, only to be tabled, and the subject reserved until later.

The subject continued the next day, with Ellsworth proposing to make the Executive elective by the National Legislature for a first term and by electors chosen by state legislatures for a second term. This time Madison set forth in detail what he considered the problems with each form of election.  Election by National Legislature would be open to intrigue, faction and foreign influence, and would subordinate the executive to the legislature.  Election by state legislatures would subordinate the National Executive to the states and their suspiciously populist designs, and would also be subject to intrigue.  Electors chosen by the people were his favored method.  Since they would not be a standing body, would meet in separate place, and would vote almost immediately after being elected, they were much less susceptible to corruption and intrigue.  The only objection was that they had already been rejected.  Election by the people would mean that people who tend to favor citizens of their own states and exclude the small states, and would put the southern states at a disadvantage because of their large numbers of slaves.  But he preferred election by the people to election by any standing body and was willing to make the sacrifice.  Pierce Butler of South Carolina considered election by the people too "complex and unwieldy" to be practical and favored electors chosen by state legislatures, with each state to have an equal number of electors.  There was further talk about insulating the Executive from legislative domination by term limits.  Hugh Williamson suggested popular election with each voter required to choose three candidates.  This way, even if one was from their own state, at least one would probably be nationally eminent.  Morris proposed reducing the number to two.  Gerry feared that such a proposal would lead to conspiracies to put forward a second choice.*  John Dickinson proposed popular election, which he assumed would lead to each state choosing one of its own, and then a vote by the National Legislature or electors chosen by them among the top 13 choices.

The subject continued the next day as well.  It began with George Mason warning against any sort of popular election lest it be subverted by a conspiracy.  Election on the basis Dickinson proposed would exclude anyone unpopular in his own state.  He considered election by the National Legislature the least objectionable form, so long as the Executive was limited to a single term to ensure his independence.  Election was once again returned to the National Legislature.

The subject then lay dormant until September 4, when a Committee appointed to modify the Constitution proposed something very similar to the Electoral College as it exists today.  Each state was to choose a number of electors equal to its number of Senators and Representatives.  The electors were then to meet separately, each in their own state, and vote for two people, one of whom could not be from their state, and submit the sealed results to the National Legislature.  The only real difference was that the Senate, instead of the House, was to decide if no one received a majority of the vote. The choice must be from among the top five vote-getters.  Madison explains in a footnote (no. 17) explains that this was an alliance between delegates from the small states and ones from the large states who wanted a "high mounted" government.  

This proposal was met with immediate resistance, mostly on the assumption that election by the Senate would be a common occurrence.  Madison complained that requiring the choice to be from among the top five would amount to having the larger states nominate candidates to be chosen by the Senate.  Most of the others expressed alarm at giving the Senate what they expected to be the final choice of a President, believing that it would reduce the President to a mere creature of the Senate, especially if the Senate had the power of trying impeachments as well.  This looked like the creation of an aristocracy.  Some proposed to allow the two houses jointly to make the decision.  Others proposed limiting the choice to the top two vote getters, or preserving the President's independence by limiting him to a single term.  Hamilton proposed that whoever got the most votes, though not a majority, should automatically be elected.

In defense of the system, Morris said that since each elector was required to name a second candidate, from outside of his state, there was a good chance that someone of national prominence could arise from these second choices.  Sherman argued that making a choice from the top five gave the large states an advantage, while having the Senate make the final choice gave the advantage to the small states, creating a balance.  Rufus King, of Massachusetts, made a similar argument.  

In the end, a compromise was made between the delegates who feared the aristocratic influence of the Senate and small state delegates who favored the Senate because it gave them an equal vote.  If no one received a majority in the Electoral College, the House of Representatives would choose among the top five candidates, voting by states.  This was the version that ultimately passed.

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*He wasn't altogether wrong about that.  We did, in the end, develop just such conspiracies.  They are called political parties.