Editor’s Note: This article was originally published by the Law & Liberty on November 5, 2024. With edits to match Minding the Campus’s style guidelines, it is crossposted here with permission.
Arguments about the Electoral College are often shallow. Opponents claim it is a relic of slavery and the product of the Founders’ distrust of democracy. They cite with approval James Wilson’s—purported—advocacy of direct presidential elections.
Proponents respond that the Electoral College prevents a few urban states from dominating presidential elections, and they sometimes cap their argument by asserting that the United States is a “republic not a democracy”—actually, it is both.
This shallowness helps account for why the debate over the Electoral College has been so repetitive and inconclusive. Neither side seems to understand fully why the Constitution’s framers constructed the presidential election system as they did. Nor do they take full account of the fact that the Electoral College is balanced and limited by the other three components of the Constitution’s presidential election mechanism.
The Framers’ Problem
James Wilson was one of the most influential delegates at the 1787 Constitutional Convention, and he participated significantly in crafting the presidential election system. He famously observed that this was “the most difficult of all on which we have had to decide.”
It was difficult because the framers were proposing a new kind of office in a new kind of government: The President would be a republican unitary executive when historically unitary executives generally had been monarchs and republican executives generally had been plural. Additionally, the framers were proposing a government partly national and partly federal although all the precedents were one or the other.
Further, the framers’ proposed system would operate over a very expansive territory. Even in 1787, the United States comprised nearly 900,000 square miles, larger than any other polity in Europe aside from Czarist Russia.
The project was such that the framers had to consider a multiplicity of competing factors, many cutting against each other and suggesting inconsistent resolutions.
For example: A good election system should produce winners competent to govern. But as is true today, few voters knew any of the candidates personally, or knew anyone who knew the candidates personally. This argued for limiting the presidential electorate to people more familiar with the candidates—perhaps governors of states or members of Congress—Members of the convention suggested each approach. It also argued for encouraging “favorite sons” promoted by supporters cognizant of their respective candidate’s merits.
But if the United States was to benefit from (in the Founders’ phrase) “energy in the executive,” then the President should be free from dependence on any small group, such as Congress or state governors. So this factor weighed in favor of choice by the people or by some wholly independent institution.
To be effective, the president had to be widely acceptable to the general public. This weighed against the choice of “favorite son” candidates and in favor of popular election—direct or indirect. On the other hand, a candidate should be acceptable not only to most people but to people throughout the country, or some sections would resist him or even secede.
The framers also sought an election system that was relatively free from influence from foreign governments and controlled by a small cabal or a handful of “factions”—special interests. This concern argued for a large pool of voters rather than a single assembly. Yet the framers also wished to minimize the chances of mob behavior or other popular passions that cascaded out of control. This argued for election by a small assembly or by small assemblies separated by distance.
Respect for federalism and local sensibilities contended for a state-based election system. But the nature of the office contended for national components as well.
Thus, the framers had to balance a long list of factors. Observe that slavery was not even on the list.
Precedents
Despite the novelty of their task, the framers did benefit from a few precedents. Negative precedents included the elections of emperors in the Holy Roman Empire and of kings in Poland. Both were chosen by electors meeting in one place. The accompanying bribery and corruption evidenced the danger of that practice.
A more positive precedent was the 1776 Maryland constitution, under which the state’s highly-regarded Senate was elected for five-year terms by popularly chosen electors.
A precedent modern writers almost invariably overlook was the Scottish system of indirectly electing members of the British Parliament. Ignorance of this system may explain the common belief that Wilson necessarily favored direct election of the president. The truth is somewhat different.
On June 1, 1787, Wilson told his fellow convention delegates, “At least … in theory he was for an election by the people.” But his specific proposal, offered the following day, called for a method somewhat like that in his native Scotland: Voters in fixed districts would choose electors, who then would choose the president.
On July 19, Wilson “perceived with pleasure that the idea was gaining ground, of an election mediately [indirectly] or immediately [directly] by the people.” To the Scottish way of thinking, indirect election was a form of “election by the people.”
The Constitution’s presidential selection mechanism is a multi-tiered procedure of which the Electoral College is only a part.
After the convention adjourned, Wilson lavishly praised the Constitution’s system of indirect presidential election. At the Pennsylvania ratifying convention, he said the president “will be chosen in such a manner that he may be justly styled the man of the people.” And while he acknowledged that direct election might be good, he thought it only second-best “next after the one prescribed in this Constitution.”
Wilson’s views were unchanged four years later, when he praised the Constitution’s presidential election system lavishly in his famous Lectures on Law.
The Solution
Because the Constitution’s presidential election mechanism balances a multiplicity of concerns, it is quite intricate. It is a multi-tiered procedure of which the Electoral College is only a part. Each of the four tiers interacts with, and is necessary for proper operation of, the three others.
Tier 1 is the appointment of presidential electors. The Constitution—Article II, Section 1, Clause 1—provides:
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 Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
This imparted to the states a role in the election process. It also ensured widespread popular participation, for, as was widely predicted, most states delegated the choice of electors to the voters. And even when state legislatures reserved the choice to themselves, their democratic nature ensured a high level of popular influence.
The disqualification of Congress and federal officers from serving as presidential electors prevents too much national interference at this stage. It also helps forestall undue influence from bribery or cabal.
Yet the Constitution does limit state power over the Tier 1 procedure: Article II, Section 1, Clause 4 enables Congress to designate a nationally uniform time for the choice of electors. If Congress does so—as it has—states may not jostle with each other for timing advantages.
It is a testament to the framers’ wisdom that the core of the presidential election system is still in effect 237 years later.
Tier 2 is the vote by the Electoral College. With a change not relevant here, the framers’ solution was summarized in the Twelfth Amendment (1804): “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.”
As used in the Constitution, “ballot” means “secret ballot.” The widespread modern practice of requiring electors to display their choice to a presiding state official violates at least the spirit, if not the letter, of the Constitution.
Although Tier 2 is principally state-based, Article II, Section 1, Clause 4 also limits state power by permitting Congress to fix a uniform day for Electoral College balloting.
Tier 3 is the counting of ballots by a joint session of Congress, presided over by the Vice President in his capacity as President of the Senate. In undertaking this duty, Congress acts not as a legislative body, but as an independent assembly undertaking what the courts call a “federal function”—one of several similar “federal functions” scattered throughout the Constitution. In this independent capacity, the joint session almost certainly may adopt its own rules for the occasion. Laws enacted by Congress in its legislative capacity that purport to bind the joint session probably are unconstitutional.
Tier 4 provides for run-off elections if no candidate for President or Vice President wins a majority of the electoral votes—see the Twelfth Amendment. The presidential runoff is held in the House of Representatives, which votes by state among the top three candidates. The vice-presidential runoff is staged in the Senate among the top two. These runoffs require a heightened quorum of two-thirds of the states in the House and two-thirds of the members of the Senate.
The presidential runoff may be a survival of early convention proposals that the president be elected by Congress.
How the Framers’ Solution Balances the Factors
Tier 1 of the presidential election process is the choice of electors. Tier 1 offers a role for the states, but also ensures widespread popular participation.
The disqualification of members of Congress and federal officers from serving as presidential electors was designed to hinder undue influence from bribery or cabal.
The Tier 1 rule permitting Congress to fix a uniform time for choice of electors limits the manipulation that can occur when elections are held over an extended period of time—a merit of the system that is undercut by the increasingly common and largely unchallenged practice of early voting.
The Tier 2 requirement that electors meet in their respective states renders mob behavior, bribery, and foreign influence more difficult than if all the electors met in one place. The requirement that electors cast their ballot for at least one out-of-state candidate balances local knowledge of the candidates with their national reputations. “Everyone’s second choice” often is the most competent alternative.
The rule that electors vote “by ballot” encourages independent judgment. There is little serious doubt that, at least from an originalist standpoint, the Supreme Court’s 2020 decision in Chiafalo v. Washington—holding that state governments may dictate how their electors vote—is wrong. Not only the framers and ratifiers, but the Congress that drafted the Twelfth Amendment contemplated the electors exercising independent judgment.
Tier 3—the count of electoral votes—offers a central role for federal actors. While some counts, notably after the 1876 election, have been controversial, most have proceeded well.
Run-off elections under Tier 4 have occurred only twice: in 1800 and 1824. Yet the prospect of a run-off is crucial to the smooth operation of the entire mechanism.
Tier 4 communicates to all prospective candidates the need to garner a majority, not merely a plurality, of the electoral vote to avoid a runoff. This discourages candidates who can win only tiny popular pluralities (e.g., 20-39%) or whose support is merely sectional or otherwise narrow.
This, in turn, serves to avoid elections that result in “winners” opposed by the overwhelming majority of the voters, or that fragment the country—both of which frequently happen in countries that elect presidents by popular pluralities.
Indeed, the geographically diverse nature of support for winning presidential candidates compares favorably with gubernatorial elections in some states, where a few urban counties impose their choice on everyone else.
How Has It Worked?
Of course, no electoral system works perfectly. But the current mechanism has a very good track record.
First, it has been quite successful from a strictly democratic standpoint: In 50 presidential elections, since a tally of the national popular votes became reliable—from 1824—the Electoral College has delivered victory to the popular vote winner over 90 percent of the time. Except in the disputed 1876 election, it has never denied victory to a candidate winning an absolute majority of the popular vote. (The actual 1876 popular vote results remain uncertain, in part because of intimidation of African American voters in the South.)
On three other occasions—1888, 2000, and 2016—the Constitution’s presidential election system has denied victory to the winner of a plurality of the popular vote. In those three cases, the popular vote margin was only around two percent or less, and the plurality winner was primarily a sectional candidate.
Second, the mechanism has helped ensure that winners have enjoyed national rather than purely regional support. In other words, even in areas they did not win, they have enough support to govern and forestall sectional break-up. The principal exception was the election of 1860, in which a regional candidate won a majority of the Electoral College with only a 39 percent popular plurality. History tells us what happened after that.
Third, the system has been almost entirely free from other dangers anticipated by the framers: mob behavior and stampedes, foreign influence, and domination by a small coalition of special interests.
And finally, present discontents should not blind us to the fact that the overwhelming majority of Presidents have proved sufficiently competent.
The framers recognized that there was no single key to democratic selection of a unitary republican magistrate for a federal nation that spans a continent. If that nation was to remain democratic, unified, and competently and effectively governed, the framers needed to consider and balance a multiplicity of factors. The Constitution’s presidential election system—of which the Electoral College is one part—is the product of this process. It is a testament to the framers’ wisdom that the core of the system is still in effect 237 years later.
Image of Assembly Room, Independence Hall, Site of the Signing of the Declaration of Independence and the U.S. Constitution, Philidelphia, Pennsylvania by Ken Lund on Flickr
This article was originally published at www.mindingthecampus.org
