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LRB, Vol. 42 No. 10 · 21 May 2020
The Corrupt Bargain
by Eric Foner
Why Do We Still Have the Electoral College?
by Alexander Keyssar.
Harvard, 544 pp., £28.95, May, 978 0 674 66015 1
Let the People Pick the President: The Case for Abolishing the Electoral
College
by Jesse Wegman.
St Martin’s Press, 304 pp., $24.50, March, 978 1 250 22197 1
Every four years Americans wake up to the fact that a president can be
elected despite receiving fewer votes than another candidate. Until 2000
the electorate couldn’t be blamed for being unaware of this possibility,
because it hadn’t happened since 1888. But twenty years ago George W.
Bush squeaked into office with a five vote majority in the electoral
college even though Al Gore outpolled him by half a million votes. Then
in 2016 Hillary Clinton received nearly three million more votes than
Donald Trump but still lost by a substantial margin – 304 to 227 – among
the electors. Ask a man or woman in the street why this system of
electing a president was adopted and how it works and you will almost
certainly draw a blank. It’s complicated, but the main point to bear in
mind is that the president is elected indirectly. To be sure, on
election day Americans think they’re casting a ballot for their
preferred candidate. But, technically, what they’re doing is voting for
electors pledged to support that candidate. The electors vote a month or
so later and in almost all cases cast their ballots for the candidate
who carried their state. No matter who won the national popular vote,
they have the final say.
The United States prides itself on providing a global model of
democratic government. But of the nearly two hundred sovereign states
that make up the United Nations it is difficult to think of a single one
that elects its chief executive as Americans do. Even countries with
constitutions explicitly modelled on the US one have not thought the
electoral college worthy of emulation. Liberia, established as a
settlement for manumitted slaves, closely followed the American example,
but opted for direct election of the president ‘by the people’. The
post-World War Two constitutions of West Germany and Japan, their
drafting strongly influenced by the American occupying authorities, did
not adopt the system. The electoral college (an odd name for an
institution whose members only assemble once every four years, in the
fifty state capitals) certainly makes the US exceptional.
How the president should be elected was one of the most divisive issues
to confront the constitutional convention of 1787. The delegates agreed
that the new nation must be a republic, which ruled out a hereditary
head of state. Some favoured selection by the legislature, the method
used in parliamentary systems, but others feared this would make the
president dependent on Congress. The most democratic option, of course,
was election by the people (or at least the minority of the population
eligible to vote in each state, generally white men with property), but
most of the framers believed that unrestrained democracy was as
dangerous as tyranny. Placing prominent men of ‘discernment’ between the
electorate and the final outcome, Alexander Hamilton insisted, would
hold popular passions in check and prevent a demagogue, perhaps beholden
to a foreign government, rising to power. James Madison had a more
self-interested objection to popular election. The political power of
the South, where slaves made up 40 per cent or more of the population,
had hugely increased, thanks to a clause adding three-fifths of the
slave population to the number of free inhabitants when allocating on
the basis of population the seats given to each state in the House of
Representatives. Since the slave population would have no impact on the
outcome, warned Madison, a Virginia slaveowner, a popular vote for
president would deprive the South of ‘influence in the election on the
score of the Negroes’.
The electoral college system was adopted shortly before the convention’s
deliberations ended, and has remained almost unchanged ever since. Each
state was given the right to choose electors by a method it determined
(which ended up meaning either selection by the state legislature, or by
popular vote). The number of electors in each state was equivalent to
that state’s delegation in Congress – two senators plus however many
members it had in the House of Representatives. The candidate who
received a majority of the electoral vote would become president and the
candidate who came second would become vice president. If no one won a
majority, the House, with each state casting one vote, would select the
president from among the top finishers. Thus, the electoral college
imported into the election of the president two undemocratic features
from elsewhere in the constitution – the allocation of two senators to
each state regardless of population and the three-fifths clause – and
added a third, the provision that in the event of a final election by
the House, each state, large or small, would have the same influence on
the outcome.
The constitution’s framers neither anticipated nor desired the rise of
political parties, which they saw as divisive institutions that elevated
factional interests above the common good. But parties quickly emerged
anyway, and caused havoc in the electoral system. Ever since, instead of
men of local prominence and independent judgment, each party has
nominated as candidates for elector minor functionaries who can be
relied on to vote for their chosen presidential candidates. The electors
are not supposed to think for themselves. Not one voter in a thousand
can name any of them past or present.
In 1788 and 1792, the state legislatures in most cases chose the
electors, and they unanimously made George Washington president. After
that, the trouble started. Initially, each elector cast two votes
without differentiating between president and vice president, because it
was assumed that candidates would compete as individuals, not as
representatives of political parties and that the two most qualified
would occupy the two highest offices. In 1796 this resulted in the
winning candidate, John Adams of the Federalist party, ending up with
Thomas Jefferson, leader of the opposition Republicans (not to be
confused with today’s party), as vice president. Four years later, the
Republican ticket consisted of Jefferson for president and Aaron Burr
for vice. They outpolled Adams and his running mate, Charles Pinckney,
but in order for Jefferson to become president, one or more Republican
electors had to avoid voting for Burr. They failed to get the message.
Jefferson and Burr both ended up with 73 electoral votes, sending the
contest to the House of Representatives. Rather than withdrawing, Burr
schemed to become president with Federalist assistance. Only after 35
indecisive ballots did Hamilton, who disliked Jefferson but thought Burr
incorrigibly dishonest, convince enough Federalists to abstain, thus
allowing Jefferson to be elected. This set in motion a train of events
that culminated in the 1804 duel in which Burr took Hamilton’s life. It
also led to the adoption of the Twelfth Amendment, requiring electors to
vote separately for president and vice-president, in recognition of the
fact that candidates were already running as party tickets and would
continue to do so.
The framers had assumed that the House would decide most elections
because in a vast, diverse nation it would be difficult for any
candidate to win a majority of the electoral vote. But after
presidential elections became party contests, nearly all produced a
clear winner. After 1800, the only time the House chose the president
was in 1824, when the party system was temporarily in disarray. John
Quincy Adams, who had come second to Andrew Jackson in both the popular
and electoral votes, struck a deal with Henry Clay, who came fourth,
giving Adams a majority of the House votes. Adams then named Clay his
secretary of state. What Jackson’s supporters called the ‘corrupt
bargain’ was precisely the kind of political manoeuvring the framers had
hoped to avoid.
Almost from the beginning, there were efforts to game the electoral
college system. In the early republic, states switched back and forth
between popular and legislative selection of electors, using whichever
seemed to favour their preferred candidate. (When the legislature chose
the electors, the majority party could simply assign the state’s
electors to its preferred candidate.) In 1836, the Whig Party ran four
regional candidates for president, in the hope that together they would
prevent the Democratic candidate, Martin Van Buren, from winning a
majority of the electoral votes (they didn’t succeed). In 1864 and 1876,
Congress admitted a thinly populated territory (Nevada, then Colorado)
as a state shortly before election day to bolster the Republican
candidate’s electoral vote. The constitution, moreover, failed to
explain what should happen if the result in a state was contested. This
came about in 1876, when disputed returns from three Southern states
made it impossible to know who had been elected president. After months
of political crisis, Congress appointed a 15-member electoral commission
to determine the outcome – a procedure with no basis in the
constitution. Rutherford B. Hayes, a Republican, became president and as
part of the ‘bargain of 1877’ his party agreed to recognise Democratic
control of the disputed state governments. This marked the end of
Reconstruction in the South.
By the 1830s, ‘democracy’ had lost its pejorative implications and every
state bar South Carolina was choosing its electors by popular vote.
Alongside this development came the tradition, not required by the
constitution, that the candidate who carried a state received all of its
electoral votes. Sometimes called the ‘general ticket’, the
winner-takes-all system in the electoral college has been near
ubiquitous for almost two centuries – today only Maine and Nebraska
allocate some of their electors by results in congressional districts.
(In 2008, Barack Obama carried a Nebraska district, winning one of that
solidly Republican state’s five electoral votes.) Winner-takes-all
maximises a state’s impact on the outcome, but also makes more likely a
mismatch between the winner of the popular vote and the electoral vote.
A candidate can carry a dozen or so large states by small margins and
capture the presidency while trailing far behind in the popular vote.
This is what happened in the momentous four-candidate election of 1860.
Abraham Lincoln received virtually no popular votes in the slave states
and only 40 per cent nationally. But by carrying the entire North, he
captured an electoral vote majority. Indeed, if the popular votes of the
other candidates had been combined and given to one of them, Lincoln
would still have become president even though 60 per cent of the
electorate opposed him.
Winner-takes-all discourages the emergence of third-party candidates
unless they have a regional base: in 1992, Ross Perot, running as an
independent, received nearly twenty million votes (19 per cent of the
total), but no electoral votes since he failed to carry a state. It also
has a powerful effect on the way that presidential campaigns are
conducted. For reasons ranging from tradition to demography and
ideology, the winner in most states is predictable well before election
day. Neither candidate sees much point in campaigning in reliably ‘red’
or ‘blue’ states, since even a loss by a narrow margin translates into
no electoral votes. As a result, the contest is confined to half a dozen
or so ‘swing’ or ‘battleground’ states that both candidates have a
realistic chance of carrying. In 2016, two-thirds of the campaign events
held by Clinton and Trump took place in only six states. This year, the
swing states include Arizona, Florida, Michigan, North Carolina and
Pennsylvania. Voters who live in places like my home, the Democratic
stronghold of New York, are essentially ignored. To be sure, I have the
luxury of ‘throwing my vote away’ on a minority party candidate, knowing
that this will not affect the electoral vote tally. (Things would be
different if I lived in Florida.) Not surprisingly, voter turnout is
higher in battleground states.
For most of American history, the electoral college system has enhanced
the political power of white Southerners. Without the votes of the extra
electors that resulted from the addition of three-fifths of the South’s
slaves to the population calculation, for example, Jefferson would not
have defeated John Adams in 1800. In the late 19th century, the Southern
states systematically stripped the right to vote from black citizens in
flagrant violation of the Fifteenth Amendment, enacted during
Reconstruction, which outlawed denial of the franchise on the grounds of
race. But this did not affect these states’ representation in the House,
since it is based on total population, not on voters or the number of
Southern electors. Ironically, the abolition of slavery increased
Southern political power because the entire black population, not just
three-fifths of it, was now counted in the allocation of House seats and
electoral votes. Like the three-fifths clause, disenfranchisement
allowed the white South to benefit politically from the presence of the
black population while denying it any semblance of democratic rights.
For much of the 20th century, the Southern states resembled a series of
rotten boroughs, whose tiny electorates wielded disproportionate power
in Congress and in the election of the president. (According to the
Fourteenth Amendment, states that deprive significant numbers of
citizens of the right to vote are supposed to lose a portion of their
congressional representation and electors. But this penalty has never
been enforced.)
Given its undemocratic nature and long history of dysfunction and
racial bias, it isn’t surprising that almost from the start proposals
began to circulate about changing the way electors were chosen, or even
doing away with the electoral college entirely. Over time, more than
eight hundred such amendments have been introduced in Congress. Amending
the constitution is a daunting task, requiring the approval of
two-thirds of Congress and three-quarters of the states. But it has
nevertheless been accomplished 27 times, effecting changes that have
significantly democratised American politics: extending the right to
vote to African Americans, women and 18-year-olds; shifting the election
of senators from legislatures to voters; barring the imposition of poll
taxes and allocating electoral votes to residents of Washington, D.C.
But the stark fact is that with the exception of the Twelfth Amendment,
which only tweaked the system, the strange way we elect the president
has survived intact for over two centuries. These two new books try to
explain why.
Alexander Keyssar’s Why Do We Still Have the Electoral College? examines
efforts to change or abolish the system. Keyssar, who teaches at
Harvard, is the author of The Right to Vote, which twenty years after
publication remains the standard account of the history of suffrage in
the United States. His new book is comprehensive and full of historical
insight. Even specialists in political and constitutional history will
encounter surprises. But in telling this story it’s impossible to avoid
repetition. Madison described the debates about the presidency at the
constitutional convention as ‘tedious and reiterated’, a comment that
can be applied to the entire history of efforts at reform. The problem
is exacerbated by the book’s partly chronological, partly thematic
structure.
As Keyssar shows, the most common proposal has been for proportional
allocation of each state’s electoral votes. Such proposals typically
give one elector to the winner in each of a state’s congressional
districts, as Maine and Nebraska currently do, with two chosen
statewide. Election by congressional district would obviate the main
problem of the winner-takes-all system, which is the effective
disfranchisement of millions of voters whose ballots do not translate
into electoral votes. It would undoubtedly increase the number of
contested states and thus voter turnout. Allocating electors by
congressional district, however, would introduce the problem of
gerrymandering into the election of the president. In almost every
state, state legislatures draw district lines. And ever since the early
days of the republic, the dominant party has drawn them so as to
maximise its electoral prospects. Today, thanks to sophisticated
computer analysis of voting returns, politicians can effectively choose
their voters rather than the other way round. Redistricting takes place
every decade, when the census determines how many members of the House
each state will be given. The 2010 elections gave Republicans control of
a majority of state governments, and they proceeded radically to redraw
district lines. In such circumstances, the district system would not
eliminate the possibility of the loser of the popular vote becoming
president. If electors had been allocated by congressional district in
2012, Mitt Romney would have been elected even though he trailed Obama
by five million popular votes.
To avoid this problem, Henry Cabot Lodge, the Republican Senator for
Massachusetts, proposed in the 1940s that each state’s electoral votes
should be automatically distributed in proportion to the popular vote in
that state, with a national run-off if no candidate received 40 per cent
overall. Race played a major and somewhat paradoxical part in the
debate. Lodge hoped that his plan would enable the Republicans to pick
up electoral votes in the then solidly Democratic South, especially if
black people regained the right to vote there. Nonetheless, some
Southern Democrats initially supported the measure, believing it would
weaken the power of black voters in the urban North. The massive
migration of African Americans from the South to Northern industrial
cities, where they enjoyed the right to vote, coupled with a continuing
shift in their allegiance away from the party of Lincoln, had changed
the political configuration of states like New York, Illinois and
Michigan. ‘There are enough Negroes in New York City,’ proclaimed Ed Lee
Gossett, a congressman from Texas who introduced Lodge’s measure in the
House, to determine the electoral vote of the entire state. ‘With all
due deference to our many fine Jewish citizens,’ Gossett added, the same
was true of them. In February 1950, the Senate approved Lodge’s
proposal, the first time in more than a century that either chamber had
passed a constitutional amendment to change the way we elect the
president. But the proposal died in the House. Liberals, as well as
black and Jewish organisations, became convinced that it would weaken
the power of Democratic urban enclaves in the North without affecting
the South’s ability to continue to prevent black voting.
Only in the mid 20th century, Keyssar shows, did a national popular vote
become the preferred alternative for the electoral college’s detractors.
Thanks to the civil rights revolution of the 1960s, Southern blacks
finally regained suffrage, weakening the advantage the electoral system
gave to white voters there. Then in 1968, George Wallace, a pioneer of
white backlash politics, won 46 electoral votes as an independent
candidate. Wallace didn’t succeed in throwing the election into the
House, where he hoped to influence the outcome, but the prospect of this
happening in future led to an upsurge of support for replacing the
electoral college with a popular vote for president. The leading
proponent in Congress was Senator Birch Bayh, a liberal Democrat from
Indiana. But support for his proposal transcended party and ideological
lines. President Nixon endorsed it, along with the US Chamber of
Commerce, the League of Women Voters and the American Bar Association. A
Gallup poll found that 81 per cent of respondents favoured the change.
Bayh’s amendment passed the House in 1969. More than half of the votes
against it came from Southern Democrats who hoped that the
enfranchisement of blacks could somehow be reversed. In the Senate,
three segregationists – Strom Thurmond of South Carolina, James Eastland
of Mississippi and Sam Ervin of North Carolina – mobilised opposition.
(Ervin’s role may surprise those who remember him only for his
principled part in the Nixon impeachment investigation. But before that
he was mostly known as an outspoken opponent of racial integration.) As
with the Lodge amendment, black leaders outside the South joined the
campaign against reform, fearing a diminution of their political
influence in the Northern industrial states. The Senate failed to break
a filibuster and the amendment died.
Keyssar opens his book with a warning not to expect an analysis of
current debates or a clear prescription for change. For these, one can
turn to Let the People Pick the President by Jesse Wegman. A member of
the New York Times editorial board, Wegman is a fluid writer who manages
to make constitutional debates and the history of political parties
lively, even amusing. His account skims much of the history related by
Keyssar but offers a sustained argument in favour of the latest proposal
to replace the electoral college, the National Popular Vote Interstate
Compact. States that sign up to the compact pledge that their electors
will cast their ballots for the winner of the national popular vote,
regardless of whether they carry their state or not. The compact will go
into effect when states with a combined 270 electoral votes – a majority
of the electoral college – have joined. The advantage of this plan is
that it avoids the laborious process of constitutional amendment. As of
today, 15 states and the District of Columbia, representing 196
electoral votes, have joined, so there is still a long way to go.
Wegman devotes considerable space to debunking misconceptions about the
electoral college. The most common is that the system benefits small
states, because, since they start with the two votes representing their
senators, they have more influence on the outcome in proportion to their
population than if a president were elected directly. This belief is a
major obstacle to winning over the three-quarters of the states required
to change the constitution. Wegman argues persuasively that the
winner-takes-all system negates the small state advantage. It makes much
more sense for candidates to focus on populous states when winning them
by even a narrow margin yields an electoral vote bonanza. In 2000,
Bush’s majority of 537 out of six million votes cast in Florida gave him
all of the state’s 25 electoral votes.
What is to be done? Keyssar refers briefly to the compact but does not
seem to consider it a viable alternative. It carries a whiff of
duplicity – many citizens would be outraged if a candidate who failed to
carry their state nonetheless received its electoral votes. Whatever the
plan’s shortcomings, however, it would encourage both parties to
maximise turnout in every state and ensure that whoever wins the popular
vote becomes president. But the hyper-partisanship of current US
politics makes agreement on any proposal for change unlikely. All the
states that have endorsed the compact are Democratic strongholds, not
surprisingly, since the party’s candidates have won the popular vote in
six of the last seven presidential elections. For the same reason,
Republicans are convinced that the current system favours them. The two
most recent Republican national platforms oppose any change in the
electoral college system.
As another presidential election looms, these books deserve a wide
readership. But the electoral college is only one symptom of a far
deeper problem. American democracy is sick in ways that go well beyond
the way the president is chosen. The symptoms include widespread efforts
in Republican states to suppress the right to vote and to rig elections,
employing such tactics as onerous identification requirements, partisan
gerrymandering and the removal of many thousands of citizens from the
voting rolls for trivial reasons. A partisan Supreme Court, in addition,
has allowed unlimited corporate spending on campaigns and abrogated key
parts of the Voting Rights Act of 1965, which restored black suffrage in
the South. These problems will not be solved by allowing the people to
elect the president, but that would be a valuable first step. Rooted in
distrust of ordinary citizens and, like so many other features of
American life, in the institution of slavery, the electoral college is a
relic of a past the United States should have abandoned long ago.
Eric Foner teaches history at Columbia. His most recent book is The
Second Founding: How the Civil War and Reconstruction Remade the
Constitution.
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