The Electoral College has been Broken from the Beginning
Our system for electing the President was designed for a country very different than the one we live in.
ALMOST TWO HUNDRED AND FIFTY YEARS AGO...
the Founding Fathers designed a system of checks and balances to keep any one individual or segment of government from seizing too much power. Within that system, especially important was the method of selecting the President. While the Framers generally believed in the power of the people, they did not believe that the American population could have enough information to directly select the President. They also believed that Congress could not be trusted to select the President either, because of the inevitable factions that would evolve.
Therefore, the Framers developed the concept of an independent deliberative body that avoided the “great evil of cabal” and was “impossible to corrupt.”(1) The distribution of electors both within and across the states was a secondary concern.
THE ELECTORAL COLLEGE WAS CONSTRUCTED NOT TO PROTECT SMALL STATES, BUT ON AN UNFOUNDED FEAR OF POLITICAL PARTIES.
Contrary to popular belief, the Framers only thought a direct election would give large states an advantage if there were many candidates from the different states. The Framers did not erect the electoral college to protect small state interests.
Many delegates were suspicious of political parties, which created disorder and intrigue and benefitted selfish interests.(2) The delegates were more influenced by political thinkers like St. John Bolingbroke, who viewed political faction as mischievous and evil, than James Madison, whose positivist theory of government was still only a novel idea.(3) The electoral college procedures, for example, require that delegates meet in separate states to guard against side deals and political maneuvers.(4) And the committee of eleven did not give Congress power to elect the President in large part to hold off “the danger of intrigue and faction.”(5)
The Framers thus felt that an institution which gives distinguished men the breathing space to deliberate would ensure that the country’s best man leads the executive branch. (6) Unlike citizens, who were not distinguished and could not deliberate well enough, and Congress, which had ulterior political interests and would surely deliberate through intrigue, independent electors would:
be free from debilitating bias and would possess extensive and accurate information relative to men and characters; the choice, which was simultaneously individual and collective, federal and national, would fall naturally on a man pre-eminent for excellence and integrity. (7)
How to distribute electors was a secondary issue that the Framers could neither agree upon nor cared much to debate. Rather than decide how to choose electors, the delegates gave plenary power to state legislatures to make this decision. (8)
THE PROTECTION OF SLAVERY PLAYED A MAJOR ROLE IN THE DESIGN OF THE ELECTORAL COLLEGE.
Slave-holding interests were well known and affected the ultimate decision, even if the scheme was not erected in order to benefit the slave states. On July 19, James Madison acknowledged that a direct election would not likely pass because “[t]he right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the [black slaves]. The substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections.”(9) And on July 25, the final day of debates before the committee on detail began its first draft, the delegates discussed how a direct election would place Southern states at a disadvantage.(10) Perhaps in part for this reason, the delegates from slave-holding states supported proposals that gave all states equal power.(11) Thus, the electoral college is similar to the three-fifths compromise because both arose (at least in part for the former case) out of the local concerns of slave-holding states.
THE CURRENT ELECTORAL COLLEGE SYSTEM IS A PATCHWORK OF ATTEMPTED FIXES.
It became clear that the Electoral College was flawed as early as 1796, the first election in which George Washington did not run. Only twelve years after ratification, two critical problems with the presidential election process were clear. First, the process had no procedural mechanisms to address political party loyalties, which at this time were becoming more significant than State or regional interests.(12) And second, the electors were already becoming pawns to political interests “chosen for their politics” rather than their virtue and intellect.(13) In short, in the first truly competitive Presidential election, the electoral college failed to achieve its purpose as an independent deliberative body.
More attempts to constitutionally amend the electoral college have been proposed than any other subject, with around 595 separate efforts between 1889 and 2004.(14) Preliminary research suggests that the amendments usually are proposed soon after a clash or a close election.(15)
THE ELECTORAL COLLEGE HAS NEVER SERVED ITS INTENDED PURPOSE. IT’S TIME TO PUT IT TO REST.
Clearly, the world we live in today is very different than the context of the original design of the Electoral College. Slavery has been abolished, political parties are an ever-present reality, and citizens are more educated and attuned to federal events than the Founders ever envisioned. In the meantime, the Electoral College never became the deliberative body it was intended to be — and that ended up being ok. Because the Electoral College was a footnote in the original deliberations and never became important, its role has always been muddled and unclear. As such, a large number of attempts have been made to reform its role, with some limited success. The Electoral College is the appendix of our governmental system: it may have had a role at some point, but those days are long gone and it can now only cause us problems. It’s time to finally get rid of the Electoral College system and move to a simpler, more balanced approach that reflects today’s world.
1. Feerick, The Electoral College: Why It Was Created, 54 American Bar Association Journal (1968) at 252 (quoting Gouverneur Morris).
2. See Turner, The Twelfth Amendment and the First American Party System, 222-226 (describing late-18th century skepticism of parties); see also Nichols, Adaptation versus Invention as Elements in Historical Analysis, fn. 3 (arguing that the terms faction, following, and junto better describe pre-Jacksonian parties).
3. Kimberling, The Electoral College, 1; Turner, at fn. 10 (stating that “[o]ccassionally -- as far back as 1733 -- some Americans expressed the view that parties could serve the process of free government but such ideas were exceptional during the [18th] century”).
4. Turner, 225 (quoting in part The Federalist No. 68, “[v]oting separately in their states, the electors were protected from pressures that might be exerted if they were all to be convened at one time, in one place”).
5. Feerick, at 252 (describing Morris’ speech).
7. Id. (internal citations omitted); see also Feerick, at 254 (“[t]he evidence is compelling that most of the framers envisioned a system under which persons of the highest caliber would be chosen as electors”).
8. McPherson v. Blacker, 146 U.S. 1, 27 (1892)
9. Feerick, The Electoral College: Why It Was Created, 54 American Bar Association Journal (1968) at 251.
10. Id. at 254.
11. Id. at 251, fn. 27 (noting that Pierce Butler of South Carolina proposed that state legislatures choose electors and that states receive equal votes).
12. Kimberling, The Electoral College 4-5.
13. Turner, The Twelfth Amendment and the First American Party System (1973) at 227.
14. Whitaker, Neale, The Electoral College: An Overview and Analysis of Reform Proposals, Congressional Research Service (2004) at 14-5.
15. Id. at 22.