During the debates over the ratification of the Constitution, Alexander Hamilton remarked in Federalist 68 that the method of presidential selection was “almost the only part of the system, of any consequence, which has escaped without severe censure or which has received the slightest mark of approbation from its opponents.” If only we could say the same today.
From the problematic election of 1800, which resulted in tweaking the system with the Twelfth Amendment, to the Florida recount in 2000, the Electoral College has become the most maligned and least appreciated aspect of America’s constitutional order. Opponents have introduced hundreds of bills seeking to amend the Constitution to replace the college with some variation of a national popular vote.
Now its foes have given up trying to amend the Constitution through traditional methods. They have created a new scheme to get around the built-in impediments to electoral reform; they call their effort the “National Popular Vote Plan” (NPV), and they have been quietly making progress toward its adoption. One proponent, Washington Post columnist E.J. Dionne, has been so bold as to admit, “this is an effort to circumvent the cumbersome process of amending the Constitution. That’s the only practical way of moving toward a more democratic system.”
The NPV was first advanced by computer engineer John R. Koza, best known for co-inventing the rub-off instant lottery ticket. The plan asks state legislatures to pledge all of their state’s electoral votes to the winner of the national popular vote once NPV goes into effect, which will happen when enough states have enacted the legislation to control the 270 electoral votes necessary to elect a president.
Backers of the plan are carrying out a stealthy and disciplined state-by-state campaign. Over 2,100 state legislators are now on board, and the plan has already passed in eight states—Vermont, Maryland, Washington, Illinois, New Jersey, Massachusetts, California, and Hawaii—and the District of Columbia, which together control 132 electoral votes. It has recently cleared single legislative chambers in New York, Rhode Island, and Delaware. NPV activists are halfway to their goal of transforming presidential elections.
Though it would have radical implications for American politics, this revolution is being accomplished without a national discussion and largely without serious debate at the state level. This is just how Koza and NPV’s supporters want it. The lottery king would gamble our future on a clever scheme to void the delicate compromises created by our Founders.
The mode of selecting the chief executive was one of the most difficult problems to confront the men assembled at the Constitutional Convention during the hot Philadelphia summer of 1787. There had never been a similar office created and they returned to it throughout the convention.
Three basic and sometimes competing values were at stake. First, the system would need to be based upon the republican principles of the revolution, finding its legitimacy in a recognition that the people and their communities are the ultimate source of power. Second, the system should encourage the president to be sufficiently independent that he could act his part with vigor and resolve. Third, the method of selection would have to be designed to encourage the choice of a character fit for high executive office.
Various modes of electing the president were proposed during the Constitutional Convention, most attempting to achieve some balance between the three oft-competing goals. Each proposal can be placed into one of three general categories: popular election, election by the national legislature (or a part thereof), or selection by some version of a specially chosen body of electors or other non-national figures (such as state governors).
Direct popular election for president, as the proponents of NPV advocate today, was the subject of two explicit votes, and on both occasions it was overwhelmingly defeated. On July 17, 1787, Gouverneur Morris made a motion to have the president elected by the people, but only Morris’s own delegates from Pennsylvania voted in its favor. More than a month later, a popular-election plan was proposed by Maryland’s Daniel Carroll. It was defeated without any discussion and with only two states supporting the idea.
The convention’s chief advocates of popular election were Pennsylvanians—Gouverneur Morris and James Wilson. Wilson first apprehensively raised the possibility on June 1, fearing “it might appear chimerical,” and no one responded to his thoughts until he rose for a second time, when George Mason—voicing some support but finding such a mode impractical—suggested postponing the discussion until Wilson “might have time to digest it into his own form.” Perhaps tellingly, Wilson the next day proposed something closer to the Electoral College than a direct popular vote: citizens would choose a representative from their district who would then serve as one of the electors for president.
What was on the minds of the Framers? A direct popular election would, of course, adhere to the requirement that the system to be republican. It would also encourage the president to be more independent than if he were elected by Congress. But would direct election by a national populace result in the selection of a president most fit for office? Would it be representative of the genius of the balanced political framework itself?
Here again, the convention record is complex. Some delegates anticipated good results from popular choice. Morris, for instance, said, “If the people should elect, they will never fail to prefer some man of distinguished character” and would choose someone of “continental reputation.” Others, such as Mason, were not so confident. But many of the Founders’ concerns about direct popular election were motivated more by electoral dynamics and constitutional balances than by animus toward the public. Fear of demagoguery, a concern about competing favorite sons from each state, the difficult logistics of a single national election, and a need to adhere to the tensions and balances of the political system all conspired against direct election as much as any concern about the public’s fitness to choose.
The Electoral College is a compromise. The executive would be selected from special representatives of the people in the states, a republican process. The president would not have an institutional rival within the government to which he would owe his election, so he would be a free and independent actor. The threat of demagogic and pandering candidates would be reduced. Finally, because of the select nature of the electors and their meetings in their respective states, where they might discuss the merits of the candidates before voting, the likelihood was that a person of outstanding moral and intellectual virtues would be chosen.
The system worked as planned in only its first two elections, with George Washington being unanimously chosen. By 1800, the development of political parties undermined the deliberative nature of the college, with discussion replaced by party loyalty as the basis for electoral voting. This change was institutionalized when the Twelfth Amendment permanently created national tickets of presidents and vice presidents within parties. Though not required to do so by the Constitution, every state now awards Electoral College votes to the popular winner chosen by its citizens. (Though two states, Nebraska and Maine, divide their electoral votes between the candidate who wins statewide and whoever wins each congressional district.) The race for the presidency today is in every way a democratic and popular election, although the elections are run and votes counted separately in the 50 states and the District of Columbia.
The modern Electoral College may not be exactly what the Founders intended, but it fits the spirit of their decentralized federal system, which treats states as more than just administrative arms of a national majority.
The de facto abolition of the Electoral College might make presidential selection easier for some to comprehend. It would be reducible to the formula, “he got the most votes.” But our Founders believed that only a rather complex structure would serve the needs of order without threatening the goal of liberty. Such a simplification of the system would radicalize our politics, undermine the rule of law, lengthen the political process, render small states irrelevant, and enthrone urban areas as undisputed kingmakers. Most importantly, there is no guarantee, or even likelihood, that it would result in what should be the key goal of any electoral reform—selecting better people for office.
Opponents of the Electoral College came closest to prevailing in Congress during the 1970s. In that debate, New York Senator Daniel Patrick Moynihan passionately recounted how he had once sat in the General Assembly Hall of the United Nations and stared at a board containing the names of the 143 nations then part of that assembly. He wondered how many of them had existed before 1914 and how many had not had their governments changed by force since then. Only seven, he discovered. Among the nations of the world, what could account for America’s remarkable political stability? The answer, Moynihan said, was the genius of the American Constitution—and at the heart of that document’s success he found the lowly Electoral College. He called the proposal to abolish the college “the most radical transformation in our political system that has ever been considered.” He added that it was “so radical and so ominous” as to require from the Senate “the most solemn, prolonged, and prayerful consideration, and in particular a consideration that will reach back to our beginnings, to learn how we built and how it came about that we built better than we knew.”
The Electoral College is “the basic institution that has given structure to American politics,” Moynihan said, and expresses the core American principle “that power is never installed, save when it is consented to by more than one majority.” This idea is seen everywhere in our system: federalism, the bicameralism of Congress, and the majority vote on the Supreme Court exercising judicial review. The establishment of a simple national plebiscite at the center of the constitutional order would undermine the delicate system of concurrent majorities, he ominously warned, and would leave us vulnerable to “the ever-present threat of an overwhelming issue, an over-powering person, and the end of liberty.”
Moving to a simple national vote would radicalize American politics in several ways. With states giving their electoral votes to whoever wins a national plurality, the more extreme elements of each party would be empowered. Under the prevailing system of winner-take-all, a candidate whose support is not localized within particular states has no incentive to run. Without this moderating system, the extremes of each party would be empowered to blackmail more prudent candidates: “Make me director of the EPA or I run and siphon enough votes to cost you the presidency!” In a divided nation, one candidate with the power to draw just a few percentage points of the vote nationally could completely change the outcome of the election. Corrupt bargains would be routine.
Our politics would also be moved out of the center, particularly in the Democratic Party, as the path to the presidency became one where smaller states and rural areas could be ignored with impunity. Currently, an urban politician seeking the highest office is forced to travel to rural areas and hear concerns that might otherwise be alien to him. By compelling candidates to mingle at state fairs, speak with coal miners, throw bowling balls, and visit small-town churches, the Electoral College system gives candidates some appreciation of the great diversity of the nation.
By contrast, under NPV an aspirant might be able to win the presidency by campaigning only in major metropolitan areas—recall the county-by-county electoral map of 2000 that showed how Al Gore won the national popular vote but could fly from Pittsburgh to Los Angeles without passing over a single county where he prevailed. A campaign waged to maximize voter turnout in and around urban areas would be divisive and lead to more radical public policy from the victor. Imagine a Barack Obama without the need to appeal to at least some voters clinging to guns or religion.
The proponents of NPV point to the election of 2000 as evidence of the need for reform. But the opposite lesson should be drawn. The recounts in Florida were ugly, yet because of the Electoral College they were concentrated in one state. Now imagine an election that close under a national system, with two candidates separated by only a few hundred thousand votes. Under NPV, lawyers would descend on every voting precinct in every county in every state of the nation. Recounts would be nationwide spectacles fought in county courthouses and in front of state and federal benches across the land.
NPV would eventually turn presidential elections into a version of a Jamaican limbo dance. A great advantage of the current Electoral College system of winner-take-all is that it funnels votes into two candidates with relatively broad bases of support and exaggerates the margin of victory for the winner, no matter how close the popular contest. With Ross Perot in the race in 1992, Bill Clinton won the presidency with just 43 percent of the popular vote, but with 68 percent of the Electoral College. Will Americans be satisfied if a president takes office after receiving only 40 percent of the national vote? How about 30 percent in a five-candidate race?
(Although it’s not part of the current NPV plan, we could eventually be driven to adopt a run-off election, allowing the top two candidates to face each other in a second round. Imagine the expense, the length of the campaigns, and the legal controversies of such an approach.)
The NPV would also be a blow to federalism and the dignity of the states. Small states like West Virginia or Colorado would never see a presidential candidate again. Large urban areas would grow in power and pull candidates to the left. A new national bureaucracy might eventually be empowered to certify an official national vote winner.
The supporters of the NPV are halfway to their goal. Only a vigilant and determined debate in the states will preserve the system that has served America since 1792. It is time for that debate to begin.
This was originally published with the same title in The Imaginative Conservative on November 10, 2016.