The Electoral College and the American Idea of Democracy

In 1967, a distinguished commission of the American Bar Association recommended that the Electoral College be scrapped and replaced by a nationwide popular vote for the President, with provision for a runoff election between the top two candidates in the event no candidate received at least 40 percent of the popular vote. This recommendation was passed by the House in 1969, came close to passage in the Senate in 1970, and is now once again upon us. It is this proposal that has just been endorsed by President Carter and that is being pressed upon Congress under the leadership of Senator Bayh.

" 1

The theme of this attack upon the Electoral College is well summarized in a much-quoted sentence from the 1969 ABA Report: "The electoral college method of electing a President of the United States is archaic, undemocratic, complex, ambiguous, indirect, and dangerous." These six charges may seem a bit harsh on a system that has worked well for a very long time, but they do provide a convenient topical outline for a brief defense of the basic principles and procedures of the Electoral College.

AN "ARCHAIC” SYSTEM?

The word archaic evokes all those Herblock and other cartoons that portray the Electoral College (or any other feature of the Constitution that is being caricatured) as a deaf, decrepit, old fogey left over from the colonial era. This is the characteristic rhetoric and imagery

1 Electing the President: A Report of the Commission on Electoral College Reform (Chicago: American Bar Association, 1967), p. 3.

of contemporary criticism of our now nearly two-centuries old Constitution. But we ought not (and perhaps lawyers, especially, ought not) acquiesce too readily in the prejudice that whatever is old is archaic, in the ABA's pejorative use of that word. On the contrary, it may be argued that the proper political prejudice, if we are to have one, ought to be in favor of the long-persisting, of the tried and true— that our first inclination in constitutional matters ought to be that old is good and older is better. We should remind ourselves of some Aristotelian wisdom reformulated by James Madison in The Federalist, Number 49, when he warned that tinkering with the Constitution. would deprive the system of government of "that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability." 2

In other words, a long-standing constitutional arrangement secures, by its very age, that habitual popular acceptance which is an indispensable ingredient in constitutional legitimacy, that is, in the power of a constitution to be accepted and lived under by free men and women. By this reasoning, we should preserve the Electoral College-barring truly serious harm actually experienced under itsimply on grounds of its nearly two-centuries long history of tranquil popular acceptance. We who have seen so many free constitutions fail because they proved to be mere parchment, unrooted in the hearts. and habits of the people, should be responsive to Madison's understated warning; we should readily agree that it would not be a "superfluous advantage" even to the most perfectly devised constitution to have the people's habitual acceptance on its side.3

But it is not necessary, in defense of the Electoral College, to rely on such sober (but startling nowadays) reasoning as that of Madison, because the Electoral College happens not to be an archaic element of our constitutional system. Not only is it not at all archaic, but one might say that it is the very model of up-to-date constitutional flexibility. Perhaps no other feature of the Constitution has had a greater capacity for dynamic historical adaptiveness. The electors became nullities; presidential elections became dramatic national contests; the federal elements in the process became strengthened by the general-ticket practice (that is, winner-take-all); modern mass political parties developed; campaigning moved from rather rigid sectionalism to the complexities of a modern technological societyand all this occurred tranquilly and legitimately within the original constitutional framework (as modified by the Twelfth Amendment).

2 The Federalist Papers, ed. C. Rossiter (New York: Mentor Books, 1961), p. 314. 3 Ibid., p. 315.

The Electoral College thus has experienced an immense historical evolution. But the remarkable fact is that while it now operates in historically transformed ways, in ways not at all as the Framers intended, it nonetheless still operates largely to the ends that they intended. What more could one ask of a constitutional provision? To appreciate why the original electoral provisions proved so adaptable, we have to recollect what the original intention was. To do that, we have first to get something out of our heads, namely, the widespread notion that the intention behind the Electoral College was undemocratic, that the main aim was to remove the election from the people and place it in the hands of wise, autonomous, detached electors who, without reference to the popular will, would choose the man they deemed best for the job. Indeed, that is what the "archaic" charge really comes down to.

What is truly odd about this view is that the Electoral College never functioned in the archaically undemocratic manner we assume had been intended. In the first two elections, every single elector followed the known popular preference and cast a ballot for Washington. In 1796, every single elector cast a basically mandated ballot for either Adams or Jefferson, the two recognized choices of the electorate. And from that time on, electors have functioned for all practical purposes as the mandated agents of popular choice. Now if the Framers were as smart as they are made out to be, how did it happen that their archaically "elitist" instrumentality was so soon, so wholly, perverted? The answer is simple: It was not. The Electoral College never was fundamentally intended to operate in an undemocratic way. Rather, it was from the start thoroughly compatible with the democratic development that immediately ensued.

The device of independent electors as a substitute for direct popular election was hit upon for three reasons, none of which supports the thesis that the intention was fundamentally undemocratic. First, and above all, the electors were not devised as an undemocratic substitute for the popular will, but rather as a nationalizing substitute for the state legislatures. In short, the Electoral College, like so much else in the Constitution, was the product of the give-and-take and the compromises between the large and the small states, or, more precisely, between the confederalists-those who sought to retain much of the Articles of Confederation--and those who advocated a large, primarily national, republic. It will be remembered that there was a great struggle at the Constitutional Convention over this issue, which was the matrix out of which many of the main constitutional provisions emerged. As they did regarding the House of Representa

tives and the Senate, the confederalists fought hard to have the President selected by the state legislatures or by some means that retained the primacy of the states as states. It was to fend off this confederalizing threat that the leading Framers, Madison, James Wilson, and Gouverneur Morris, hit upon the Electoral College device. As a matter of fact, their own first choice was for a straight national popular vote; Wilson introduced that idea, and Madison and Morris endorsed it. But when the "states righters" vehemently rejected it, Wilson, Madison, and Morris settled on the device of popularly elected electors. The Electoral College, thus, in its genesis and inspiration was not an anti-democratic but an anti-states-rights device, a way of keeping the election from the state politicians and giving it to the people."

Second, the system of electors also had to be devised because most of the delegates to the Convention feared, not democracy itself, but only that a straightforward national election was "impracticable" in a country as large as the United States, given the poor internal communications it then had." Many reasonably feared that, in these circumstances, the people simply could not have the national information about available candidates to make any real choice, let alone an intelligent one. And small-state partisans feared that, given this lack of information, ordinary voters would vote for favorite sons, with the result that large-state candidates would always win the presidential pluralities. How seriously concerned the Framers were with this "communications gap" is shown by the famous faulty mechanism. in the original provisions (the one that made possible the JeffersonBurr deadlock in 1801). Each elector was originally to cast two votes, but without specifying which was for President and which for VicePresident. The Constitution required that at least one of these two votes be for a non-home-state candidate, the intention being to force the people and their electors to cast at least one electoral vote for a

4 See The Records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1966), vol. 1, pp. 68-69, 80, and vol. 2, pp. 29-31, 56-57, and 111.

5 The "confederalists" won a temporary and partial victory at the Convention when the express provision for popular election of the electors was barely defeated. (See The Records of the Federal Convention of 1787, vol. 2, p. 404.) The Constitution finally provided that electors be elected "in such manner" as the state legislatures might decide. During the first three elections, electors were typically chosen by the state legislatures. By 1824, in all but six of the then twenty-four states, electors were being popularly elected. Ever since 1832, popular election has been the universal rule with negligible exceptions.

6 For example, see James Wilson's explanation of the electoral device to the Pennsylvania ratifying convention. (The Records of the Federal Convention of 1787, vol. 3, p. 167.)

7 See remarks of Madison and Oliver Ellsworth (Ibid., vol. 2, p. 111).

truly "continental" figure. Clearly, then, what the Framers were seeking was not an undemocratic way to substitute elite electors for the popular will; rather, as they claimed, they were trying to find a practicable way to extract from the popular will a nonparochial choice for the President.

The third reason for the electoral scheme likewise had nothing to do with frustrating democracy, but rather with the wide variety of suffrage practices in the states. Madison dealt with this problem at the Constitutional Convention on July 19, 1787. While election by "the people was in his opinion the fittest in itself," there was a serious circumstantial difficulty. "The 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 Negroes. The substitution of electors obviated this difficulty."8 That is, the electoral system would take care of the discrepancies between state voting population and total population of the states until, as Madison hoped and expected, slavery would be eliminated and suffrage discrepancies gradually disappeared. Again the intention was to find the most practical means in the circumstances to secure a popular choice of the President.

These were the main reasons, then, why the leading Framers settled for the electoral system instead of a national popular election, and none may fairly be characterized as undemocratic. But it must be admitted that the electoral device would not occur to us nowadays as a way to solve these practical problems that the founding generation faced, because we insist on more unqualifiedly populistic political instruments than they did. All of the founding generation were far more prepared than we to accept devices and processes that, to use their terms, refined or filtered the popular will; and a few of the founders, Hamilton, for example, did vainly hope that the electors would exercise such a degree of autonomy in choosing the President, as would perhaps exceed any reasonable democratic standard. This is what makes it easy for us to believe that the Electoral College was conceived undemocratically, rather than as a legitimately democratic response in the circumstances. But any fair and full reading of the evidence demands the conclusion suggested here: the majority of the Convention, and especially the leading architects of the Constitution, conceived the Electoral College simply as the most practical means by which to secure a free, democratic choice of an independent and effective chief executive.

8 Ibid., vol. 2, p. 57.