05 Oct Clustermuck: The Electoral College

Well, that was certainly dramatic: the debates, and then Covid 19. Still, we’re going to stay focused, persisting with our single in-depth subject related to the elections. The Post Office, The Census, the Debates, and today (brace yourself): The Electoral College.

I know, you think you understand it—but honestly, do you? Really? It’s quite challenging, because most people believe in the one-person-one-vote myth; they think they’re voting directly for the president and vice president. They’re not. (Also, try explaining that to foreign friends!) So sit back: this will take us a while. I’ll try for plain English and hope some of it is lively.

As prescribed by the U.S. Constitution, American presidents are not elected directly by the people, but by the people’s electors. This is a republic, remember, not a democracy. The Founders were terrified of mob rule, especially since the French Revolution was already rumbling and about to burst into blood. The 538-member electoral college—a process, not a place—was created by the Founders as a compromise to electing the president either by popular vote or by congressional vote. Of course, they also thought the electors would be educated, politically involved, intelligent men—and I do mean men. As for the other attributes, flash forward to 2020 and Donald Trump: “I ran for the electoral college. I didn’t run for the popular vote.”

The Electoral College has had critics from its beginning: that it’s undemocratic, permits the election of a candidate who does not win the most vote; that its winner-take-all approach in most states cancels the purpose, and can depress voter turnout; also that the electoral college was a necessity when communications were poor, literacy was low, and voters lacked information about out of state candidates–-all of which is no longer the case (except when it is). Remember that the Founders settled on this ungainly solution when the country was in its infancy, severely divided between slaveholding and free states, and largely agrarian. Frankly, the Founders would not have been able to unite the colonies into a nation without such measures as the electoral college. (Lamentably, the same may be true today.)

Item: The year 1828 is already weird: the Federalist party is on the edge of extinction and all four candidates are Democratic-Republicans (one united party). Andrew Jackson, war hero, “man of the people,” slaveholder, signatory to the Indian Removal Act, nicknamed “Indian Slayer,” who rode his horse right into the White House (thus earning him the adoration of Donald J Trump); yes, that Andrew Jackson of the lush hair-do who edged Harriet Tubman off our $20 bill—he runs for president. He wins the popular vote by a plurality, fewer than 39,000 ballots, and also the electoral college. But since no candidate has earned a majority, it falls to the House of Representatives to settle the deadlock among three candidates: Jackson, John Quincy Adams (son of John Adams), and Henry Clay, Speaker of the House. After long negotiations, most of Clay’s supporters shift to Adams, who goes on to win and install Clay as his secretary of state—causing Jackson to accuse Adams and Clay of a “corrupt bargain.” Jackson vacates his seat, vowing to win the 1828 election as a Washington outsider. He does—on a newly formed Democratic ticket. (Remember that this was back when Democrats were pro-slavery and Republicans anti. Then everybody switched sides.)

So let’s plunge into the weeds for just a moment. A majority of 270 electoral votes is required to elect the president. Each state’s entitled allotment of electors equals the number of members in its congressional delegation: one for each member in the House of Representatives plus two for the two senators. (Under the 23rd Amendment, the District of Columbia is allocated three electors and treated like a state for purposes of the electoral college.) Although the congressional delegations of states can change depending on the decennial census, the senatorial two remain the same. Therein lay the rub confronting the Founders—because it soon became clear that there was a considerable population difference between slaveholding states and free states, and the South howled in protest. We’ll return to that in a moment.

Each candidate running for president has his or her own group of electors–generally chosen by the candidate’s political party, although state laws vary on the selection of and responsibilities of electors (we’re not going to go down that rabbit hole or we’ll never emerge). Most states have a winner-take-all system that awards all electors to the winning presidential candidate in that state. However, Maine and Nebraska each have a variation of “proportional representation.” The electors meet on the first Monday after the second Wednesday in December after the presidential election, and cast their votes for president and vice president. (Are you still with me?) Each state’s electoral votes are counted in a joint session of Congress on January 6. Anyone may serve as an elector, aside from members of Congress and persons holding offices of “trust or profit” under the Constitution. When electors assemble in their various state capitols, they are pledged and expected—not necessarily required, but directed by precedent—to vote for the candidates they represent, which has given rise to the concept of the so-called “faithless elector” who changes her/his vote.

The 1787 Constitutional Convention considered different methods of electing the president, including direct popular election, or by Congress, by state governors, state legislatures, or by a special group of members that Congress had chosen by lot. The rather droll Founders referred the matter to the “Committee of 11 on Postponed Matters,” which devised the electoral college system. It was intended to reconcile differing state and federal interests, provide a degree of popular participation, give less populated states some additional leverage by providing the model of “senatorial” electors, preserve the presidency as independent of Congress, and insulate the election process from political manipulation, thus saving it from demagogues. (Well, until 2016, anyway.)

The structural elements of the EC system remain in effect. But the 12th Amendment, ratified in 1804, replaced the original system with separate ballots for president and vice president, who also now had to come from different states. (This was after the 1800 election resulting in a bitter tie between Jefferson and Aaron Burr.) By tradition, November was chosen for election day because the harvest was in, and farmers could take the time needed to vote. By the way, not only was this country an agrarian nation, it was also fairly observant—although the Founders themselves were virtually all agnostics, atheists, and deists—so Tuesday was chosen as election day because it gave a day’s travel between Sunday, observed as a strict day of rest, and election day.

Arguments for the electoral college: It contributes to the cohesiveness of the country by requiring a distribution of popular support to be elected president; it contributes to the political stability of the nation by encouraging a two party system; it maintains a federal system of government and representation; and, ironically, it enhances the status of minority groups because voters of even small minorities in a state might make the difference between winning all of that state’s electoral votes or not. The same principle applies to other special interest groups like labor unions, farmers, environmentalists, etc. Last, the electoral college has performed for more than 200 years in over 50 presidential elections, and the fact that it was originally designed to solve one set of problems yet today solves an entirely different set is a tribute to the genius of the Founders. Proposals to abolish it, often put forward, have failed largely because the alternatives seem more problematic than the college itself.

The year is 1861. Lincoln, a Republican, is about to be inaugurated, having won over VP John Breckinridge of the dominant Democratic Party in an election with one of the highest voter turnouts of all time. The Supreme Court Dred Scott decision of 1857, basically legalizing slavery in all US territories, looms large. Republicans oppose slavery for new states but are reluctant to push for prohibition in states that already have it, while Democrats can’t even establish an official party line, but nominate Senator Stephen Douglas of Illinois (of the Lincoln-Douglas debates). Many Democrats defect and choose Breckenridge, who also claims the nomination, thus confusing everyone. Meanwhile, the brand-new Constitutional Union Party mounts a campaign that basically ignores slavery altogether, and selects Senator John Bell of Tennessee. Lincoln wins only 40 percent of the popular vote, but in the electoral college he takes most all of the North, with California and Oregon. Douglas comes in second in the popular vote but takes only Missouri (and three votes in New Jersey). Breckinridge takes most of the south. The electoral college and Lincoln have it. Weeks after the election, South Carolina votes to secede, followed by six more southern states, and in February 1861 those states form the Confederate States of America, selecting Jefferson Davis as their president.

Arguments against the electoral college: It’s undemocratic; the distribution of electoral votes over-represents people in rural states, as if cows or corn could vote; the winner-take-all mechanism reinforces a two party system, discourages third-party or independent candidates, and tends to restrict choices available to the electorate; most of all, its origins are rooted in systemic racism and sexism.

So how did all this begin?

In 1787, as the Constitution was being drafted, James Wilson of Pennsylvania proposed direct election of the president. But Virginia’s James Madison worried that such a system could hurt the South, which would have been outnumbered in the direct election (he was the father of the Constitution, after all, and he was tragically right—the South would not have joined the union of the states—but he was also a slaveholder himself). The populations in both North and South were about the same, yet approximately one-third of people living in the South were enslaved, thus not citizens (about 93 percent of the country’s enslaved people were in bondage in just five Southern states). The “final solution” was one that could leverage the infamous “Three-Fifths Compromise” already determining how congressional seats would be apportioned—e.g. to count each enslaved person as three-fifths of a (non-enfranchised!) person—increased the size of the South’s congressional delegation by 42 percent! The electoral college followed the same formula, as part of the deal with Southern states. The result was that Virginia, for instance, emerged with more than a quarter of the electors needed to lock in a president, while a state like Pennsylvania, whose population was free and, if male, enfranchised, got fewer electoral votes, though it had approximately the same population.

James Madison later admitted that delegates had written the rules while impaired by “the hurrying influence produced by fatigue and impatience.” Jim had a point. He also admitted that the electoral college was constructed to bridge a major chasm among the states: “The great division of interest did not lie between the large and small states; it lay between the northern and southern… [because of] their having or not having slaves.” The Constitution’s pro-Southern bias became immediately evident. For 32 of the first 36 years of the Constitution, the presidency was held by a white, slaveholding Virginian. (In 1800, Jefferson won against abolitionist John Adams from Massachusetts in a race where the pro-slavery tilt of the electoral college held the decisive margin.)

Sexism was blatant, as well. In any future direct presidential election, a state that would choose to enfranchise women would automatically double its impact—but under the electoral college, a state had no incentive to expand suffrage, since each state got a fixed number of electoral votes, regardless of how many citizens were actually enfranchised; this was later deployed as an argument against women’s suffrage. As The New York Times noted in a November 9 editorial 20 years ago, the system was still tilting toward white southern males: exit polls showed George W. Bush scored big with white Southern males while Al Gore won decisively among African American men and all women. What’s more, the wound is still bleeding.

The year is 1872. Suffragist Victoria Woodhull of the People’s Party becomes the first woman to run for president—with her running mate, abolitionist Frederick Douglass, the first African-American to run for vice president (what a ticket!). It’s also the year Susan B. Anthony gets arrested for illegal voting. Newspaper owner/editor and Congressman Horace Greeley of New York (himself an abolitionist and pro-feminist supporter) is not supposed to win against President Ulysses S. Grant, who has led the Union armies that defeated the Confederacy, but has been less than convincing in the White House (and drinks heavily). Greeley runs as a Liberal Republican and some Republicans defect, following him. He will go on to snare 44 percent of the popular vote, despite having stopped his campaign to tend to his ill wife, who dies a week before the election. Then, before the electoral college can cast its votes, Greeley dies as well that November—and 63 of his 66 votes are disbursed among Democrats and Thomas Hendrix, who will later become vice president. Grant attends Greeley’s funeral, but the electoral vote still hasn’t come in.

After the Civil War, the South maintained its hegemony because in the electoral college it maintained its population numbers, yet—throughout the Reconstruction era, the Black Codes, and the rise of Jim Crow with voter literacy tests and poll taxes—the former slaveholding states could still bar their black citizens from the voting booth, a “slavery bonus.” That bonus ensured that the nation’s first 18 presidential elections delivered a slave owner as president, vice president, or both. Only in 1860 did Abraham Lincoln’s victory—due, ironically, to the electoral college—turn things around. Even today, population concentration of African-Americans is highest in the South, yet their preferred presidential candidate is almost certain to lose their home state’s electoral votes.

Electoral college defenders rationalize that without the advantage, campaigning politicians might ignore many of the nation’s voters, especially those in small states or geographically inconvenient states. True. But three-quarters of Americans live in states where most major parties’ candidates don’t campaign anyway (and whatever happened to electronic communication in our modern age?). Besides, that argument is an ethical rats’ nest: is it better to ignore major numbers of citizens whose votes have been suppressed in the South than to run the risk of overlooking a few voters in small or distant states? The continuing disempowerment of voters of color is systemic racism plain and simple, built-in, baked in. It is not the only element supporting the electoral college, but it is core to what the EC is and always has been.

Professor of political science William Blake researched this trend, to find that the electoral college continues to give more power to states whose populations are whiter. Today, it dilutes African-American, Latinx, and Asian American voters, because they live in highly populated states (say, California), with less power per capita in the EC than, say, Wyoming. So it’s “Heads Whites Win, Tails Voters of Color Lose.”

Which brings us to one of the many proposed ways out of this mess: the National Popular Vote Interstate Compact (NPVIC); 15 states and Washington DC have passed bills pledging to cast their electoral votes for the presidential candidate who wins the most votes nationally: MD, NJ, IL, HA, WA, MASS, DC, VT, CA, RI, NY, CONN, CO, DE, NM, OR. These jurisdictions currently hold 196 electoral votes among them, 74 short of the 270 needed to bring the the NPVIC into effect. This would guarantee that the candidate who wins the largest number of votes—in the country, not just the battleground or swing states—wins the EC. This project has been supported by editorials in The New York Times, The Chicago Sun-Times, The Los Angeles Times, The Boston Globe, and The Minneapolis Star Tribune. A collection of readings pro and con has been assembled by the League of Women Voters.

More than 800 Constitutional Amendments to fix the EC’s technical problems or to abolish it have been lodged, but not made it into law. Even Nixon called it a “thoroughly acceptable reform,” but a filibuster by segregationist Southern senators suffocated that attempt. The closest the US has come to actually abolishing the EC occurred during the 91st Congress (1969-1971), with the Bayh-Cellar Amendment that would have replaced it with a simpler two round system based on the national popular vote; Southern senators and conservatives from small states, both Democrat and Republican, killed it. In 2016, Senator Barbara Boxer of California introduced a proposal for the direct popular election of the president and vice president by voters in the states and Washington DC, co-sponsored by Congressman Steve Cohen of Tennessee: nothing happened.

As things now stand, no small or less populous state will ever be willing to voluntarily give up power; even to raise the issue invites arguments about federalism versus states’ rights, urban versus rural, not to mention Democrat versus Republican. And those who might consider it will still argue the slippery-slope defense: “Then you might as well do away with the two senators and just go with proportional representation in Congress!”

But that shouldn’t mean that we don’t keep trying. It’s never an all or nothing game. It’s harder: it’s about incremental change. Time may be the ultimate healer of this still suppurating wound—that is, if we have the time, given the climate crisis. The demographics of the American South are changing, as are those of the entire United States. Fortunately, they’re getting more diverse. Georgia is now teetering on the edge, and one day its electors will vote the way its actual population does. The same can be said for Texas, although that may take 20 years. Perhaps the time clock can be sped up, as more people and younger people take to the streets for Black Lives Matter and untie the knots of systemic racism and sexism.

But first, we have to get through this backlash and this election this November—and that’s anxiety-provoking enough.