Constitution 101: The Electoral College

When you head to the polls and vote for the president, you don’t actually vote for the president. You vote for a slate of electors who select the president through the Electoral College.

The Electoral College was established in Article II Sec.1 of the Constitution.

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

The modern system operates under the process outlined by the 12th Amendment.

“The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists 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 President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. —The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

The current Electoral College consists of 538 electors. A state’s total number of electors equals the number of members in its congressional delegation – one for each member of the House plus one for each of the two senators. The District of Columbia also gets three electors.

The number of electors allocated to each state will likely change after the 2020 census. Currently, it requires a majority of 270 electoral votes to win the presidency.

Most states feature a “winner-take-all” system awarding all of its electors to the winning presidential candidate. However, Maine and Nebraska operate with a variation of “proportional representation.” These states allocate two electoral votes to the state popular vote winner and one electoral vote to the popular vote winner in each Congressional district.

The political parties in each state choose their slates of potential Electors. Generally, the parties either nominate electors at their state party conventions or they chose them by a vote of the party’s central committee.

Electors were intended to exercise discretion in casting their votes, but today, most states require electors to cast their votes based on the winner of the popular vote in their states. But from time-to-time, electors will stray from the party-line and cast independent votes. These are called “faithless electors.”

There were 10 faithless electors in the 2016 presidential election. Three of these were invalidated by the state parties. Of the faithless votes that were counted, three went to Colin Powell. John Kasich, Ron Paul, Bernie Sanders, and Faith Spotted Eagle each received one vote. Clinton lost five votes and Trump lost two due to faithless electors.

CONTROVERSY

The Electoral College has become a hotly contested issue in American politics with a strong and vocal movement to do away with the institution and instead select the president based on whoever receives the most total votes.

Supporters of abolishing the Electoral College claim that establishing a system based on a national popular vote would be “more Democratic.” As a MoveOn petition put it, “One person one vote to determine the one leader who is supposed to answer to all the people of the country.”

This seems plausible on the surface. The president serves as the leader of the “nation,” right? Why shouldn’t he or she be elected by a national popular vote?

The fundamental answer is that the United States are not a nation, and the abolition of the Electoral College would fundamentally alter the constitutional system the founding generation envisioned.

Despite what the Pledge of Allegiance children recite every morning says, America never was “one nation.” The United States was founded as a federated republic – a confederacy of sovereign states that came together to form a union.

A nation implies a single, unified political society. When they declared independence, the colonies became 13 sovereign nations in their own right. They did quickly band together in a confederation, but this is not the same thing as a “nation.”

Black’s Law Dictionary describes the difference between a nation and a federal republic.

“A national government is a government of the people of a single state or nation, united as a community by what is termed the ‘social compact,’ and possessing complete and perfect supremacy over persons and things, so far as they can be made the lawful objects of civil government. A federal government is distinguished from a national government by its being the government of a community of independent and sovereign states, united by compact.”

Under the Articles of Confederation, the central government held very little authority. There was no president, nor a federal judiciary, and the Continental Congress had virtually no authority over the states. In fact, the loose nature of the confederation eventually led to calls for reforms and ultimately the ratification of the Constitution delegating more authority to the general government.

But even under the Constitution, the United States still did not come together to form “one nation.” We don’t call it the United State.

Although Alexander Hamilton held strong nationalist convictions, even he conceded the United States were not “one nation” in Federalist #32.

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”

While the American system features some national characteristics, the country was never consolidated into a singular entity. The states maintain their sovereignty, giving up only a few powers that were specifically delegated to the general government – retaining all the rest.

The Electoral College reflects the federal nature of the United States’ constitutional system.

THE CREATION OF THE ELECTORAL COLLEGE

During the Philadelphia Convention, the drafters the Constitution debated whether the new government would be national or federal. Many of the early plans were much more national in nature, but as the convention proceeded, these national characteristics were rejected one-by-one.

The election of the president was no different. In fact, one of the early proposals called for the president to be elected by a national popular vote.

Edmund Randolph and James Madison’s well-known Virginia Plan called for Congress to select the president. But prominent Pennsylvania delegate James Wilson favored “an appointment by the people,” – in other words, a popular vote. Wilson believed that selecting the president through a popular election that included all of the eligible voters in each state would make the president and Congress “as independent as possible of each other, as well as of the States.” *

Elbridge Gerry of Massachusetts suggested that the governors of each state should elect the president. He argued that empowering Congress to choose the chief executive would “give birth to intrigue and corruption” between the legislative and executive branches. Randolph vocally opposed the idea, saying that state governors would lack the knowledge necessary to select a president because they would be unaware of “characters not within their own small spheres.” The delegation quickly dispatched Gerry’s proposal with nine states opposing it.

It seemed that the plan to for congressional appointment of the president had won the day, but the issue of presidential selection came up again in July 1787.

Gouverneur Morris is often referred to as the penman of the Constitution due to his role in writing the document. He vehemently opposed Congressional appointment, arguing that there needed to be a clear separation between the legislative and executive branches. Morris said congressional selection would make the president “the mere creature of the legislature if appointed & impeachable by that body.” He supported Wilson’s call for a popular election saying, “He ought to be elected by the people at large, by the freeholders of the Country.”

But several other delegates brought up strong arguments against popular election. South Carolina delegate Charles Pinckney warned that popular elections would “be led by a few active & designing men” He feared that “the most populous States by combining in favor of the same individual will be able to carry their points.”

Virginia’s George Mason also raised concerns about a popular vote, arguing 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. The extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates.”

At this point, the plan to choose the president by popular election was put up for a vote and soundly defeated with only the delegations from Maryland and Delaware voting yes.

With the final decision on how to elect the president among a number of other issues still up in the air, the convention appointed a committee made up of one delegate from each state to hammer out a plan. These 11 men came back on Sept. 4 with a proposal for the Electoral College.  It was essentially the plan that the convention would adopt except instead of the House, the Senate would have broken a tie.

Morris was the primary spokesman for the plan. He said that it would eliminate the “danger of intrigue & faction if the appointmt should be made by the Legislature,” and that “No body had appeared to be satisfied with an appointment by the Legislature.” He noted that “many were anxious even for an immediate choice by the people and argued that since “the Electors would vote at the same time throughout the U.S. and at so great a distance from each other, the great evil of cabal was avoided. It would be impossible also to corrupt them.”

Wilson abandoned his plan for a popular vote and threw his support behind the Electoral College, but recommended the House serve as the tie-breaking body instead of the Senate. Several delegates expressed concern that giving the Senate the power to both select the president in the event of a tie and the power to try impeachments could create a conflict of interest.

Ultimately, the delegates overwhelmingly approved a plan proposed by Roger Sherman and Hugh Williamson under which the House would break a tie by state ballot – not a majority vote of all representatives. Why? Because as Sherman said, “large States would have so great an advantage” if the decision was made by a simple majority vote.

The Electoral College generated very little opposition during the ratification process. In Federalist #68, Alexander Hamilton wrote that the mode of choosing the Chief Magistrate was “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. I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.”

The “plausible” objection Hamilton referred to was penned by a Federal Farmer. He expressed concern that the system wasn’t “sufficiently democratic, or substantially drawn from the body of the people.” His primary objection revolved around representation. He wrote that the number of electors was insufficient to adequately represent the people. He also favored broader representation in Congress.

The lack of opposition to the Electoral College during the ratification debates indicates that it was noncontroversial and generally well-received.

The 12th Amendment made some changes to the process of choosing the president and vice president, but left the Electoral College system intact. Instead of the candidate with the most votes winning the presidency and the second-place candidate becoming the V.P., electors vote separately for a president and vice president. This was primarily a concession to the evolution of political parties and the fiasco that was the election of 1800.

*All of the quotes from the Philadelphia Convention come from James Madison’s notes on the Debates of the Philadelphia Convention.

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