An amended Election Day primer on our electoral college
The NYT's explainer is mostly commendable while stepping on the occasional rake
On the eve of Election Day the New York Times published a very helpful guide to the electoral college. Let it be said at the top that a “unique and bespoke system that I think nobody would create again today” is an excellent quote. Kudos to Wendy R. Weiser of the NYU law school’s Brennan Center for Justice.
As we prepare for a Tuesday evening of riveting democracy theater, Now and Again is pleased to offer the following notes on the Old Gray Lady’s guide to our distinctive electoral apparatus.
Let’s adopt the style of one of those bespoke late-teens-era fact checks….
“The Electoral College is made up of 538 elected members….A presidential candidate needs to win a simple majority of them (270) to win the White House. The electors meet and cast votes for president and vice president in mid-December….[In the absence of a majority] the decision goes to the freshly elected House of Representatives, with each state voting as one unit.”
True.
In the 2020s the electors really do still meet. In 1787 this facet of the process was envisioned as feature and not bug.
With electors meeting on the same day in each state from New Hampshire to Georgia, the assumption was that conspiratorial logistics would prove prohibitively daunting for any malign actors seeking to sway the election through “cabal” or “intrigue.” What quickly became clear, however, is that still another way to fortify an electoral college against evil doers is to eliminate flesh-and-blood electors entirely. The various state-level electoral colleges that arose in the 19th and 20th centuries mostly omitted the humans and simply translated citizens’ ballots into electoral votes automatically. These states didn’t fret about faithless electors. There were no electors, just electoral (or “unit”) votes.
Deciding contingent elections with one-state, one-vote balloting in the House was Roger Sherman’s 11th-hour idea, one intended to appeal to small states and thus smooth the path to ratification. James Madison then waxed appropriately articulate in Federalist No. 39 about how voting by state in the popularly elected House would balance national and federal elements in “a very compound” alloy. By the 1820s, however, Madison was criticizing one-state, one-vote in private correspondence as downright un-republican.
With the benefit of hindsight the framers may have regretted this contingent election procedure as a political concession that turned out to be unnecessary. In September 1787 exhausted framers were desperate to secure ratification. But in 1788 the proposed method for electing the president rarely came up in otherwise contentious and lengthy state ratification debates.
Those conventions focused instead on the threat of a “consolidated” national government, the prospect that state governments would be “annihilated,” the absence of a bill of rights, the three-fifths clause (lifted and altered from the Articles of Confederation), the selection of 1808 as the earliest date for prohibiting the international trade in enslaved persons (criticized from diametrically opposed directions as being either too far in the future or for presuming to permit a ban at any date ever), Senate apportionment (loathed in large states by Antifederalists and more than a few Federalists alike), the judiciary, and the danger of a “standing army.”
The electoral college simply did not rise to this same level of controversy — yet. That would change by 1801 at the latest and this new state of affairs would persist for the next 200 years and counting.
In 1969-70 when Congress appeared to be on the brink of sending an amendment to the states for a national popular vote, a less sweeping amendment was proposed as a defensive measure by Sam Ervin, senator from North Carolina. Ervin offered automatic (non-human) electoral vote totals and resolution of contingent elections through one-member, one-vote tallies in a joint session of Congress. Indiana Senator Birch Bayh was championing the popular-vote amendment and he dismissed Ervin’s offer out of hand. Bayh said he didn’t mind half a loaf, but Ervin was offering a crumb. A half-century later the crumb still persists in the body of the Constitution.
As for why there are 538 electors, no more and no less, it’s a number with a history.
“In the summer of 1787, the delegates to the Constitutional Convention in Philadelphia were deadlocked on how to select a president.”
This requires context.
The framers were indeed deadlocked, but the impasse didn’t consist of impassioned and paradigmatic debates regarding the will of the people on the one hand and the perils of too much democracy on the other. The challenge in Philadelphia wasn’t a deadlock between opposing convictions as much as it was one of rueful and increasingly tense procrastination and problem solving.
James Wilson spoke forcefully for a popular vote and Gouverneur Morris was on board but the proposal was rejected decisively by the delegates in July. This is when George Mason said anyone supporting a popular vote may as well “refer a trial of colours to a blind man.” The gibe has echoed down through the ages as an indictment of popular elections, though in fact the same exact objection would be voiced in Philadelphia with respect to electors in a subsequent discussion of the electoral college.
Mason’s quote might be read more profitably as a call for institutional and technological help. Had he known that in short order parties would form, newsprint would explode, and campaigns would become months-long contests between (most often) two candidates receiving saturation coverage nationwide, Mason likely would have been either less dismissive or less representative.
Nor could any lasting consensus be forged whereby Congress elects the president — doing so, it was feared, would render the latter “a mere creature” of the former. In the absence of anyone coming up with a third way (election by governors, state legislatures, etc.), the convention focused on other matters for five weeks from July to September until the matter could wait no longer. Then the “committee on postponed parts” came up with what we’ll be using on Election Day 2024.
One term that’s tossed around with regularity in these discussions concerns the framers’ fear of an excess of democracy. Actually, in some ways the Constitution is more democratic than the preceding Articles of Confederation. The House was popularly elected from the start, whereas members of the Confederation Congress were appointed by state legislatures. Also, incredibly, the Constitution is easier to amend than the Articles of Confederation were. One Antifederalist opposed the new charter because “just” nine (out of 13) states could vote to amend it.
When the framers voiced concern over too much democracy, they tended to mean not something visionary like a national popular vote in an expansive country but rather what they were seeing from state legislatures in real time in the mid-1780s. They sought a more energetic federal government, yes, but they also badly wanted a more stable architecture of governments, plural.
To take one example, Rhode Island started printing money in the spring of 1786 and passed a law requiring creditors to accept the new currency. When those creditors refused, another law was enacted setting penalties for them and denying them jury trials. Otherwise disparate figures like Washington, Franklin, and the otherwise highly skeptical Patrick Henry all agreed fundamentally on the need for something new. Even one Antifederalist tract said the very fact that the Philadelphia convention happened in the first place proved that the status quo couldn’t be sustained.
“The electors idea boosted states in the South, where the enslaved population added to the number of assigned electoral votes.”
True.
This dynamic became more egregious over time and, if anything, it had an even greater impact on apportionment in the House of Representatives than it did on the outcomes of presidential races. Of course, outcomes are themselves adaptive preferences. The feedback loop set in motion here was such that, notwithstanding the husband and son of Abigail Adams, southerners and South-approved northerners like Van Buren, Pierce, and Buchanan dominated the presidency right up to Lincoln.
Still, all of those candidates from 1828 to the Civil War also won the popular vote. Meanwhile the House’s membership to say nothing of its voting were being reshaped every day by the three-fifths clause.
“The Electoral College has mostly reflected the will of the people, but twice in the last six elections candidates have lost the popular vote but won the Electoral College and the White House.”
True enough.
“The results don’t always align because a single voter in a big state has less influence than a single voter in a small state.”
True, but be careful here….
“The overrepresented rural states are now more Republican, so Republicans can more easily win the Electoral College without winning a majority of the national votes. That’s what happened in 2000 and 2016.”
False except for “That’s what happened in 2000.”
Strange things happen in polarized times when Republicans and Democrats agree. Right now the two parties agree with the above paragraph. Republicans, of course, celebrate this state of affairs and (mostly) want to preserve the electoral college. Democrats deplore the status quo and want a national popular vote.
Both parties see the words “electoral college” and immediately picture Wyoming’s vast spaces and Republican tendencies. But the most overrepresented locales in today’s electoral college are more diverse than that picture, both politically and geographically.
The most overrepresented polities in today’s electoral college are, in rank order: Wyoming, Vermont, the District of Columbia, Alaska, North Dakota, Montana, Rhode Island, South Dakota, Delaware, Maine, New Hampshire, and Hawaii.
George W. Bush did win in 2000 by virtue of the population-blind electoral votes derived from the Senate. Not so Donald Trump in 2016. Even in a 436-member electoral college purged of all Senate-derived electors, Trump would have defeated Hillary Clinton 247 to 189.
Trump prevailed in 2016 not because of decisive victories in small states but because of narrow victories in swing states. Winner-take-all made all the difference. Bush’s win in 2000 was a victory of scale. Trump’s win in 2016 was a victory of allocation.
Here’s hoping you enjoy Election Day and Night armed with your deep electoral college knowledge. If you haven’t already, get out and vote!