As the final day of this election dawns, we are looking at the real probability that Democrats will win the popular vote for the eighth time in the last nine elections. There is also a significant chance that, once again, the Republicans are going to win the electoral college vote despite losing the popular vote. Since the end of Reconstruction, this only happened one time before the election of 2000.
When discussions of how the electoral college is flawed comes up, the defenders of the status quo like to spout about how the current system is what was designed by the Framers to avoid the big states having too much power. The problem is that argument is wrong in three basic ways. First, the original concept behind the electoral college and the belief about how elections would operate ended up being wrong. Which is why the Framers had to amend the Constitution after 1800 to fix the electoral college. Second, there were multiple other reasons for having an electoral college and for the final structure of the electoral college beyond helping the small states counteract the big states. Third, most of those reasons are no longer valid which leaves the question about why should what was ultimately a compromise rather than the core reason for the electoral college still justify keeping what for most of its history has been like the tonsils, wisdom teeth, or appendix of our electoral system.
Let’s turn back to how things were in 1787 when the Constitutional Convention met. There was no television, no radio, no internet, no telephones, no telegraph, no railroad, no cars, no planes. The continent had been organized at the colony level with little or no connections between the colonies before the First Continental Congress. After the Declaration of Independence, the colonies became states, but states were still the basic organizing unit of government. Newspapers were more like your small town local paper is today with nothing like USA Today, the Wall Street Journal, the New York Times, or the Washington Post. The primary form of transportation was horseback, and it could take several days to travel across a state. It could take weeks for a letter to get from New York to Charleston. In short, politics were local and or state-based. There was no national politics, and it was difficult for the average voter to get information about what was happening in other states.
If you read the Federalist Papers discussion of presidential elections, this reality was central on the minds of the Framers. Think about today. If you ask your neighbor who does not follow politics closely, they are unlikely to know about any representative other than their local one (if that) or those who seem to live on the “opinion” shows on the cable news networks. The Framers faced the same problem without the advantage of cable news or the internet to allow somebody to become nationally known.
Furthermore, at the time of the Framing, there was no national political parties. The Framers understood the concept of factions, but they, naively, believed that the U.S. would not, like England, end up with two dominant factions/political parties. You did not have preprinted ballots. Instead, voters wrote the name of the candidate that they wanted to elect.
This combination of factors worried the Framers. With so little national information available for voters and voters basically able to “write-in” anybody as a candidate for president, the Framers feared a very splintered vote. And in a universe in which ten percent of the national vote might be enough, they feared that the leading candidates would be the attention-seeking types that are familiar today from the talking head shows who would be the least qualified to actually serve.
Complicating this problem was the difference in voting rules in the states. Each state had different rules for who could vote. At the Congressional level, the Framers had no interest in resolving these differences. Instead, they provided that, in each state, the rules for who could vote for Congress would be the same as the rules for who could vote for the state legislature. If you used the popular vote to determine the president, that would give an edge to the state that allowed the most people to vote. Of course, that is much less of an issue today. Unlike 1787, when almost every state required people to own property to vote but each state had different property requirements, every state today allows all adult citizens to vote with the main difference being when convicted felons regain the right to vote. Today, the differences are not in who is eligible to vote but how easy it is to vote. But even today, some states do not want to lose power if they do not ease barriers to voting.
So faced with difficulty in holding a direct election that no longer exist, the Framers opted for an indirect form of election. And because elections were organized at the state level, it made sense to use the states as the organizing unit for the selection of those who would vote in the presidential election. All that remained was to figure out how many votes each of the states would get. And just as with Congress, there was the split between those who wanted each state to have the same number of votes and those who wanted to use population. And for those who wanted to use population, the issue of whether to count slaves toward population would also apply to presidential elections. It was not some wisdom on the part of the Framers that led to an electoral college based on the Senate and the House, but a down and dirty compromise to get the votes to pass.
One other provision in the electoral college was based on the reality of 1787 and revealed a lot about how the Framers viewed the electoral college. There was the expectation that the electors would vote for the people that they knew best — other politicians from their individual states. So to try to identify the leading national candidates, the Framers gave each elector two votes and required that, at least, one of the two would have to go to somebody from another state. The writers of the Federalist Papers expected that every elector would cast their one vote for a potential candidate from the elector’s state. They expected that the other vote would identify national contenders. But, the Framers really thought that it would be rare for there to be a national consensus. Instead, the Framers believed that, in most elections, nobody would be close to a majority and the electoral college would essentially nominate the top candidates with the House getting to choose the winner.
And this expectation that politics would remain local proved to be the mistake that the Framers made with the electoral college. By the election of 1800, the factions had solidified into national parties that were able to succeed in having their elector candidates chosen by the states, and those electors voted for the two candidates put forward by the national party resulting in a tied election. This result led to the Twelfth Amendment. But in writing the Twelfth Amendment, the Framers did not take a step back and ask whether the fundamental assumptions underlying the electoral college were still right. (At least in terms of not wanting to give an advantage to the states with the loosest eligibility requirements and not wanting to deprive the slave states of extra political power, these arguments were still “valid” in 1801.) Instead, they just put a patch on the original system by replacing one election (in which the runner-up become vice-president) with a new system that had the electors voting for the offices separately (and only one vote per office).
And those other reasons are mostly no longer valid. Allowing states to restrict the right to vote is no longer a valid reason for using an indirect mechanism of election. And most people today would not want to increase the power of states which have a large population of people who can’t vote. Finally, when you do the math, while the electoral college gives some additional weight to small states, it still comes down to the top twelve states. Of the swing states in this election, the only one that is a small state is Nevada. For most of our history, it has not mattered that we choose a president by electors rather than popular vote. The winner was the same. But if we are living in an era in which the two systems are more frequently producing different winners, then it is time to ask whether the electoral college still makes sense.
As we sit up late tonight and put the coffee on tomorrow morning, that is a question worth asking.
