On the first Monday after the second Wednesday in December, the Electoral College is expected to demonstrate not only its uselessness but its destructiveness by choosing for president a candidate who lost the national popular vote by more than 2 percent. It never worked as theorized; its relationship to federalism is dubious; and its existence contravenes the 14th Amendment. It is a relic that should be abolished.
The purpose of the electors, according to Alexander Hamilton in Federalist 68, was to buffer the passions and ignorance of common voters – who in 1788 were limited to white male property owners – by allowing “a small number of persons” who would “be most likely to possess the information and discernment” to pick the president. Thus the Constitution empowered the states to “appoint, in such Manner as the Legislature thereof may direct” the electors, who were proscribed from holding any office.
At the time political parties didn’t exist. Hamilton’s Federalist partner, James Madison, hoped they never would. In Federalist 10, Madison warned, “the latent causes of faction are thus sown in the nature of man”:
A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.
An Electoral College, the Framers contended, would rise above those divisions. It was a nice argument, but reasoning together was not the elector’s purpose. Of greater concern were the mechanics of conducting a popular vote. (By 1796, when Adams faced Jefferson in the first contested election, only eight states held a popular vote.) But the most important factor was how to account for slavery. The three/fifths compromise (counting three/fifths of a slave for purposes of House apportionment) helped work out the composition of Congress; the Constitutional Convention extended the principle to picking the president.
Hamilton’s rationale for electors fell away as our political parties matured; electors pledged to support the candidate of their respective parties. The parties choose the electors on slates that represent the respective presidential candidates, resulting in the custom (and in 29 states and D.C. the law) that electors follow their state vote, winner-take-all. (Maine and Nebraska require electors representing House districts to follow the popular vote of the district.)
Fifty years ago we experienced momentum for reform in the wake of the adoption of universal suffrage: Poll taxes were prohibited under the 24th Amendment, ratified in 1964; the next year Congress directed the federal government to enforce voting rights denied on account of race. Separately the Supreme Court’s one-person/one-vote decisions, culminating in Reynolds v. Sims (1964), reasoned that under the 14th Amendment’s Equal Protection Clause, states were required to accord citizens equal representation in drawing legislative districts. Chief Justice Earl Warren wrote:
Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests . . . [I]f a state should provide that the votes of citizens in one part of the state should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the state, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.
Two years after Reynolds, in 1966, Delaware petitioned the Supreme Court to sweep away the state laws requiring electors to vote for the candidate who won their states regardless of margin as a violation of due process. In its brief, Delaware noted that the “state unit system” of electing the president is part of an integrated national process, in which each state’s citizens are affected by the methods of all other states. It argued that the system gave a candidate with 49 percent of the vote zero representation in the electoral count, contrary to the Equal Protection Clause. It also argued that small states were overwhelmed by big ones:
A citizen of a small state is in a position to influence fewer electoral votes than a citizen of a larger state, and therefore his popular vote is less sought after by major candidates.
New York State, as the petition’s named defendant (which then had the most electoral votes), responded that the Constitution granted every state the right to set the manner of appointing electors. The Supreme Court declined to hear the case.
Meanwhile members of Congress, the American Bar Association, and the U.S. Chamber of Commerce were advocating a constitutional amendment to abolish the Electoral College. The Gallup poll found a majority of legislators in 44 states favored it. Beginning in 1966, Senator Birch Bayh led the congressional effort for direct election, including a run-off if no candidate received 40 percent. The Indiana Democrat continued his campaign until he was defeated for reelection in 1980.
In the wake of Donald Trump’s apparent election, defenders of the Electoral College have opined that presidential candidates would ignore small states in favor of big ones. That’s irrelevant because, to paraphrase Chief Justice Warren, presidents represent citizens, not states. The 14th Amendment dispatched the notion that we are citizens of our respective states first, and it granted us equal rights as Americans.
Contrary to every other electoral contest, from U.S. senator to county commissioner, our system of electing the president allows a winner not determined by who gets the most votes. Twice in 16 years, we have countenanced that system. As former senator Bayh wrote: “Direct election is the only system that counts every vote equally and where the voters cast their ballots directly for the candidates of their choice.”