Two of the nation’s last three presidents won the presidency in the Electoral College, even though they lost the popular vote nationwide. In 2000, Al Gore outpolled George W. Bush by more than 540,000 votes but lost in the Electoral College, 271–266. Sixteen years later, Hillary Clinton tallied almost 3 million more votes than Donald Trump but lost decisively in the Electoral College, 306–232. And, as a recent New York Times poll suggested, the 2020 election could very well again deliver the presidency to the loser of the popular vote.
Despite this, defenders of the Electoral College argue that it was created to combat majority tyranny and support federalism, and that it continues to serve those purposes. For example, Representative Dan Crenshaw of Texas, responding to Representative Alexandria Ocasio-Cortez’s recent criticism of the Electoral College, tweeted that “we live in a republic, which means 51% of the population doesn’t get to boss around the other 49%,” and that the Electoral College “promotes more equal regional representation and protects the interests of sparsely populated states.”
But arguments like these are flawed, misunderstanding the pertinent history. Below, I identify five common mistakes made in arguing for the preservation of the Electoral College.
Mistake Number 1: Many supporters of the Electoral College assume that the debate about presidential selection at the Constitutional Convention, like the debate today, focused on whether the president should be chosen by the Electoral College or by a nationwide popular vote.
But as tempting as it is to read history in the light of contemporary concerns, the debate at the convention focused on a different issue: Should Congress choose the president? Both the Virginia Plan and the New Jersey Plan, the two primary alternatives at the Convention, proposed that Congress select the president. This was unsurprising because in most states at the time, the legislature chose the governor. On June 1, the convention voted 8–2 that Congress should elect the president, and the delegates would affirm that decision on three other occasions.
The frequency with which the delegates revisited the issue reveals not their confidence but their dissatisfaction. Most delegates wanted the executive to check legislative usurpations and block unjust or unwise laws, but they feared that dependence on the legislature for election—and possible reelection—would compromise the executive’s independence. Some delegates hoped to avoid this danger by limiting the president to a single term, but as Gouverneur Morris of Pennsylvania observed, this could deprive the nation of a highly qualified executive, eliminate the hope of continuation in office as a spur to good behavior, and encourage the executive to “make hay while the sun shines.” James Madison added that election by the legislature would “agitate and divide the legislature so much that the public interest would materially suffer” and might invite the intervention of foreign powers seeking to influence the choice.
The difficulty lay in finding an alternative to legislative selection, and the delegates considered and rejected various possibilities, including popular election. Ultimately, perhaps in desperation, they referred the issue to the Committee on Unfinished Parts. On September 4, less than two weeks before the convention ended, the committee proposed the Electoral College. Its proposal mirrored the states’ distribution of power in Congress; each state had as many electoral votes as it had members of Congress. But because the electors dispersed after voting for the president, the Electoral College did not threaten the independence of the executive. With only minor adjustments—most notably, the House replaced the Senate as the body that would select the president if a majority of electors failed to agree on a candidate—the convention endorsed the proposal.
The point of all this is, the Electoral College did not emerge because of opposition to popular election of the president.
Mistake Number 2: Another common belief is that the convention rejected popular election of the president because the delegates feared majority tyranny. People make this claim as though to say that because the Framers were skittish of a national popular election, so should we be today.
But, once again, this interpretation of history is wrong. The convention did twice reject popular election of the president. But the delegates who rejected it did not object to popular elections per se—they had no problem with popular election of the House of Representatives or state legislatures. Rather, they were skeptical of a national popular election, primarily for reasons that are no longer relevant today.
First, they feared that people would lack the information to make an informed choice as to who might be an appropriate candidate for the presidency or who might be the best choice among candidates. Thus George Mason of Virginia claimed, “It would be as unnatural to refer the choice of a proper candidate for chief Magistrate to the people, as it would be to refer a trial of colours to a blind man.”
But his reason was that “the extent of the Country renders it impossible that the people can have the requisite capacity to judge of the respective pretensions of the Candidates.” In such circumstances, he thought, voters would naturally gravitate to candidates from their own state. Delegates who favored popular election replied that “the increasing intercourse among the people of the states would render important characters less and less unknown,” and that “continental characters will multiply as we more or more coalesce,” reducing state parochialism. Today, with mass communication and interminable campaigns, lack of information is no longer a problem.
Second, some southern delegates feared that popular election of the president would disadvantage their states. James Madison noted that, given less restrictive voting laws, “the right of suffrage was much more diffusive in the Northern than the Southern states,” which would give them an advantage in a popular election. Beyond that, a popular vote would not count the disenfranchised enslaved population, reducing southern influence.
The Electoral College solved both those problems, awarding electoral votes based on a state’s population, not its electorate, and importing the three-fifths compromise into presidential elections. The effects were immediate and dramatic—in 1800 John Adams would have defeated Thomas Jefferson had only free persons been counted in awarding electoral votes. Obviously, these concerns no longer apply, although popular election would encourage states to increase their influence by expanding their electorate, while the Electoral College offers no such incentive.
Third, some small-state delegates opposed popular election because they feared that larger states, with their greater voting power, would dominate. Yet these same delegates also objected to the Electoral College, insisting it too gave excessive power to the large states. Their concerns were addressed by stipulating that should no candidate receive a majority of the electoral vote, the selection would devolve on the House of Representatives, with each state casting a single vote.
What is striking about the convention’s debate on popular election of the president is that its opponents did not claim it would encourage majority tyranny. Doubtless the delegates were aware of the danger of such a tyranny—Madison first presented his famous discussion of “majority faction” at the convention—but no delegate objected to popular election on that basis, and Madison himself supported popular election of the president.
Mistake Number 3: Similarly, some defenders of the Electoral College have argued that the delegates who favored the Electoral College opposed popular election of the president.
Given the current debate on presidential selection, this might seem obvious, but the deliberations at the convention were much more fluid. James Wilson of Pennsylvania first proposed popular election of the president, but when his motion failed, he immediately raised the possibility of a mediated popular election: electors chosen by the people who would select the executive. All the other leading advocates of popular election—Morris, Madison, and Alexander Hamilton—also supported the Electoral College, primarily as an alternative to congressional selection. In defending the Electoral College, Madison and Hamilton emphasized its popular character. Madison in “Federalist No. 39” noted that “the President is indirectly derived from the choice of the people,” and Hamilton in “Federalist No. 68” concurred: “The sense of the people should operate in the choice of the person to whom so important a trust was to be confided,” and reelection should depend on “the people themselves.”
Mistake Number 4: Many people also believe that the Electoral College was designed to preserve federalism and states’ rights.
The Constitution was, in James Madison’s words, “in strictness neither a national nor a federal Constitution, but a composition of both.” It empowered state legislatures to determine how the presidential electors were to be chosen, and if the Electoral College failed to select a president, the House of Representatives would, with each state casting a single vote. However, the debates during the Constitutional Convention make clear that the Electoral College was not intended to protect the states or enhance the influence of state governments and state perspectives.
The convention delegates sought to safeguard the independence of the national executive from state governments. They overwhelmingly rejected proposals that the executive be selected by state legislatures or by state governors. They also rejected a proposal that the president be removable upon request by a majority of state legislatures and did not even consider the New Jersey Plan’s provision that the president “be recalled by Congress when requested by the majority of executive of the states.” This was hardly surprising. Most delegates were sharply critical of state legislatures and wanted to ensure that the president had the independence necessary to oppose their schemes. Madison summarized the prevailing sentiment: “The President is to act for the people, not the States.”
Although the Electoral College allowed state legislatures to determine how electors would be chosen, it was expected that once selected, the electors would operate independently of their state governments. The constitutional ban on senators serving as electors and the choice of the House to resolve deadlocks in the Electoral College ensured that those selected by (and perhaps influenced by) state legislatures would not play a role in selecting the president. Beyond that, the delegates expected that the electors’ deliberations would remain secret, that they would be free to choose the candidates they believed most qualified, and that their votes would be tabulated and transmitted to the president of the Senate without any indication as to who voted for which candidate, so that no political retribution could be exacted. The Constitution’s requirement that electors vote for two candidates, at least one of whom was not from their state, served to reduce state parochialism and encourage a national perspective.
In sum, the Electoral College was not designed to promote federalism—Martin Diamond, one of the most thoughtful proponents of the Electoral College, accurately described the design as “an anti-states-rights device, a way of keeping the election from state politicians and giving it to the people.” The core protections of federalism, today as in the past, are the vitality of state governments, the division of powers between nation and state, and representation in Congress along state lines. The replacement of the Electoral College by a nationwide popular vote would threaten none of these. Voting procedures would remain the same, the only difference being that votes would be tabulated nationwide rather than state by state.
Mistake Number 5: And finally, perhaps the most widely believed and, at the same time, most incorrect of the arguments for the Electoral College is that it has vindicated the hopes and expectations of its creators.
To begin with, to some extent those expectations were unclear. For example, after the Electoral College was proposed, some delegates claimed that in most elections—George Mason predicted “nineteen times in twenty”—no candidate would get a majority of the electoral votes, and so the House of Representatives would elect the president. This of course would compromise the independence of the executive, and both Madison and Hamilton unsuccessfully proposed that the House’s role be eliminated, with the candidate winning a plurality of the electoral vote becoming president. Other delegates expected that a majority of the electors would coalesce around a single candidate. In “Federalist No. 39,” Madison presumed that “the eventual election” would be made by the House, but this was mere speculation and quickly disproved.
Even when the delegates’ hopes and expectations were clear, constitutional amendments have altered the operation of the Electoral College. The Twelfth Amendment, adopted after the contested election of 1800, requires electors to specify for whom they are voting for president and vice president. The Twentieth Amendment, by shifting the date congressional terms begin to January 3, ensures that the newly elected House of Representatives, rather than the previous House, would elect the president if no candidate received an electoral-vote majority. And the Twenty-Third Amendment extends the right to vote in presidential elections to U.S. citizens residing in the District of Columbia, awarding the District three electoral votes, though the Electoral College continues to deny American citizens living in Puerto Rico and other U.S. territories any role in choosing the president.
Even more important have been changes in political practice. In “Federalist No. 64,” John Jay maintained that the Electoral College “will in general be composed of the most enlightened and respectable citizens,” and in “Federalist No. 68,” Alexander Hamilton described the electors as “most likely to possess the information and discernment” necessary to choose the chief executive. But by 1800 political parties had developed, and elector discretion was replaced by elector commitment to the parties’ candidates. Today many states do not even bother to list the electors’ names on the ballot. Interestingly, Hamilton and Madison as party leaders played a crucial role in this transformation.
The Constitution authorized state legislatures to determine how electors were to be selected, but by 1828 every state but South Carolina chose its electors by popular vote, and today all states do. Moreover, despite the initial expectation that electors would be chosen in districts, by 1836 party competition had promoted a winner-take-all allocation of electors in all the states. (Maine and Nebraska have since bucked that trend.) This in turn has affected presidential campaigns, as more and more candidates target their speeches, campaign appearances, and ads at “swing states” and largely ignore states they confidently expect to carry or to lose.
Meanwhile, the proliferation of primary elections, the nationalization of the choice of presidential candidates, the move toward candidate-based campaigns, and the reduced importance of state party organizations have fundamentally transformed presidential selection, without changing how votes are awarded under the Electoral College.
In “Federalist No. 68,” Alexander Hamilton contended that the Electoral College would frustrate “the desire in foreign powers to gain an improper ascendant in our councils.” It would also “afford a moral certainty that the office of President [would] seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.” In addition, it would keep from the office candidates with “talents for low intrigue, and the little arts of popularity.” In evaluating the Electoral College today, one must judge whether Hamilton’s hopes have been vindicated.