In the last two decades, the Electoral College has come under harsh, though derivative, criticism as a result of the presidential elections in 2000 and 2016. Comparing the Electoral College at its inception to the Electoral College of 2020 is a distortion. For one, the twelfth amendment ended the practice of affording the presidency and vice-presidency to the first and second place finishers in the electoral vote. Secondly, by 1830, all but South Carolina had adopted the “winner take all” distribution of the electoral vote which, aside from the contentious 1800 election, has been the primary cause of strife than the Electoral College itself.
On the surface, the Electoral College is no more than a double majority check; one of many that are present in the Constitution. The reason for double majorities is simple: changes to government or to laws should require very strong support. This is true not only in federalist systems but in unitary governments as well. In the United States, the first and most easily identifiable majority required is the quorum.[1]Prior to the ratification of the 1787 constitution, the American government’s relationship with quorums was problematic at best. The Confederation Congress struggled to produce a quorum even to ratify the Treaty of Paris in 1783. Yet, the Annapolis Convention convened, drafted its recommendations, and adjourned without a quorum in 1786.[2] Other examples of these double—and multiple—majorities in the Constitution include the passage of bills in two houses and the multilayered process to amend the Constitution.
Even eminent historians have fallen prey to notions that the Electoral College is a uniquely American institution. These historians, along with critics of the institution, place the formation of the Electoral College in a historical vacuum. Systems of using electors were well-known before the Constitutional Convention. Even among the states, indirect suffrage systems—to include the use of electors—were already established.
At the Constitutional Convention of 1787, the debates over the best method of electing the executive branch were subordinate to other discussions about executive power. In fact, as contentious as the Electoral College is today, the actual issue of electing the president was mostly considered a settled matter during the first month of the convention. Both the Virginia and New Jersey plans, which differed so greatly on the legislative branch, were in unison over the election of the executive. Specifically, the executive—whatever that would be—would be chosen by the legislature. Had it not been for the insistence of three men in particular—Elbridge Gerry, James Wilson, and Alexander Hamilton—it is questionable whether we would even be having a discussion of the Electoral College today. Other framers would grow more prominent in this debate as it ensued.
During the first month of the convention, the committee of the whole poured over the broad strokes of the new government. Questions about the executive were less contentious than those about the legislative but discussions did center around a few primary concerns: how many executives, how long would they serve, could they serve again, who should they be, and can they be removed? The question of “who chooses them” did not take precedence but that is not to say that it avoided discussion altogether.
By May 29, the discussion in the committee of the whole had finally reached the questions concerning the executive and the judiciary branches. Even if the executive branch had not roused quite the same furor that the legislative had, it was the question that spoke to the nature of the new terms of confederation that the convention had hoped to achieve. Perhaps it would have been less prickly to have had an executive council drawn from the states, but the bulk of the opinion leaned toward a unified executive. For states that had maintained a large degree of independence under the confederation government, a unified executive vested in a single person represented a massive shift in the nature of the government. The frequently-underestimated Charles Pinckney of South Carolina and Delaware’s George Reed were the expositors of this supreme executive.
On the question of how this executive was to be chosen, the answer seemed obvious to the committee: the congress would select them for a term of seven years. William Paterson’s notes are the only set attesting to this selection process; other framers who bothered taking notes for posterity seemed entirely unconcerned with the matter by May 29 and 30. The diversity of opinions on how elections should take place reflected the immense diversity of thought among the states. Each state delegate carried to the convention its preference. Caleb Strong of Massachusetts, as well as other New England Federalists, brought a preference for annual elections and a greater degree of democracy. Other states, like South Carolina, did not popularly elect the governor. James Wilson of Pennsylvania was the most disposed toward popular elections for every branch, including the house and senate.
Elbridge Gerry’s opinions were difficult to predict, a common complaint among his contemporaries. Gerry later favored a slightly more democratic approach to electing the executive in contrast to his earlier criticism that “excess democracy” was a scourge to resist. To re-emphasize Gerry’s fickle nature, he would change his mind again by the close of the committee’s deliberations on June 19. In the interim, Gerry and Wilson drew towards the center of a compromise to allow for electors to choose the executive on behalf of the states’ residents.
This idea was not a new one to the framers. Maryland’s 1776 constitution created an electoral college to elect its state senate. Maryland was not unique in its undemocratic property requirements for suffrage or to run for office, but their initial constitution, post-independence, left little reason to question aristocratic control. A slate of twenty-four electors—two from each county plus one each from Annapolis and Baltimore—were elected by county freeholders to convene and choose the fifteen members of the senate for five-year terms. They were at liberty to choose the senators from their own ranks as well. If the question of senatorial election roused much debate in the 1776-7 convention, it was not recorded. The first President of the Senate in Maryland was high federalist tobacco planter Daniel of St. Thomas Jenifer. Ten years later, Jenifer attended the Constitutional Convention as a delegate from Maryland.[3]
James Madison and Rufus King objected to this framework initially. Selection by Congress, or through electors, would reduce confidence in the new government. King’s notes from the convention calculated how far removed certain positions were away from the people’s votes. This speaks to the notion that King figured state governors or legislatures would choose the electors, a notion that would later be the case in some states. A president chosen by way of electors, chosen by state legislators, then certified by a national congress hardly seemed pragmatic let alone a system that would instill much confidence that the government truly represented the will of the people. In Maryland there would be yet another layer of electors as well!
Gerry and Wilson’s efforts notwithstanding, the matter was settled in committee. The overwhelming number of state delegations rejected popular election of the executive and the use of electors. On June 7, Gerry—perhaps changing his mind or attempting to reinvigorate the discussion via a new proposal—proposed that state governors select the president. The discussion was brief and the committee did not divert from course. The New Jersey Plan came to the floor on June 15 and, despite its many objections to the Virginia Plan, was basically in agreement that the congress should choose the executive.
Outside of the example of Maryland, several European nations had used indirect electors since the Middle Ages. The best-known example was the Holy Roman Emperor who, since the Golden Bull of 1356, was chosen via powerful electors scattered throughout the continent. While hardly a democratic election of a monarch, the recognition of electors was also, in some manner, the recognition of states and territories within the Holy Roman empire that was later realized in 1648 in the Treaty of Westphalia.
If this seems like a distant and overreaching example of electors to support the idea of an electoral college, it was not so for the constitutional framers. In particular, a young Alexander Hamilton invoked the examples of European electors in his first major speech to the convention on June 19. Hamilton, for all his later esteem, had not spoken much during the first month of the convention, which Madison attributed to his age and political differences from the other New York delegates. Age was inhibiting for some—Jonathan Dayton of New Jersey barely spoke at the convention. For others, like Charles Pinckney, it made little difference. However, Madison was understating the differences between Hamilton and his fellow New York delegates, John Lansing and Robert Yates. Both were unwavering anti-Federalists who later left the convention in protest and rallied a great deal of support against ratification in what would be the closest ratification vote of any state until Rhode Island’s in 1790.
Hamilton described “elective monarchies” but carefully avoided the unease associated with the idea of monarchy by stating that these elective monarchies were often in tumultuous governments. Hamilton, more than any other to this point, made the case for what would become the Electoral College. Drawing from Maryland’s example, Hamilton also endorsed a similar indirect suffrage scheme for the senate. Once the full convention met in July, however, the Electoral College was again rejected and congressional appointment again moved forward.
Despite these votes, the question of executive elections arose numerous times between July and September. A play-by-play of each instance would be rather redundant. There were patterns within the individual debates that are worth treating generally rather than specifically, but the changes in the state voting blocs prove interesting. By September, only South Carolina and North Carolina continued to oppose any direct or indirect scheme of electing the executive. Even as a majority formed, one debate became intractable: how would states choose the electors? At this point Hamilton had left the convention and would not return again until September. After July 10 none of the New York delegation remained; as noted, John Lansing and Robert Yates had exited the convention in protest. New Hampshire’s pair of delegates would not arrive until July 21. Of those that remained, the most vocal members of this debate were James Wilson, Elbridge Gerry, Gouverneur Morris, James Madison, and George Mason. It would be up to Connecticut, in the persons of Roger Sherman and Oliver Ellsworth, to rescue the convention from utter fracture as they did with the warring between the Virginia and New Jersey plans.
Debate on the executive question quieted for some time while the convention moved on to the judiciary. It would be a recurring, and tiring, theme all the way until September, such that delegates grew restless about presidential selection. Connecticut maneuvered to offer a compromise. While Sherman had not necessarily been opposed to legislative appointment, it was clear by July that the idea was going nowhere even though it has previously garnered support. Connecticut delegates refined the Electoral College idea and proposed the now-familiar formula of apportioning the electors by state. In this first model, states could have one to three electors. Though this motion passed with only a divided Massachusetts and the Carolinas opposed to it, the debate would re-emerge and continue. The Connecticut Plan nonetheless became the foundational compromise that united a majority of the state delegations.
To get a sense of what problems the Electoral College solved, one has to shake off any contemporary notions—which goes without saying in historical analyses—but it requires stepping away from the convention itself. The confederation government lacked an executive. Despite many extraordinary claims to the contrary, the president of the confederation congress was not an executive figure.
If the problem of legislative elections nearly drove the convention into chaos, the question of electing an executive that had hitherto not existed would prove even more difficult. This is especially true given the fears many of the framers harbored of having an executive figure at all. This probably spurred much of the early support for congressional appointment of the president. The British had an evolving “head of government” but what those in the present would think of as a Prime Minister was foreign to many at the time and repugnant to men who were even given the title.
There was very little consistency among the states for guidance. Many states lacked direct election of their governors. South Carolina did not popularly elect a governor—or presidential electors—until after the Civil War. Pennsylvania existed under a directorial system with an executive council like contemporary Switzerland. Outside of James Wilson, and the example of some New England delegates, the thought of direct elections was simply unpalatable.
George Mason considered it a paradox that so many of the framers were agitating for a stronger, more energetic legislature but thought it would be too corrupt to choose an executive. Yet, the fears of cabal and legislative intrigue with selecting the executive were likely realistic. It would hardly be fair to call the executive branch a distinct branch at all if that were the case. Gerry pitched gubernatorial or state legislative election as an alternative but this received even less consideration than direct elections. The fears of leaving the executive too beholden to the state governments was palpable. That would come near to defeating the designs of many who had called the convention which had even considered, abortively, to give national veto power over state legislatures.
While much of the preceding focuses on the internal debate, a look at state delegation votes is instructive as well. Though the topic of electing the executive ebbed and flowed, a few dates are important for consideration in 1787: June 2, July 17, July 19, July 24, August 24, and September 5.[4]
Maryland, already comfortable with using electors, and Pennsylvania, whose club of exclusively Philadelphia delegates were friendly to the idea of popular elections, were reliably on the side of using electors while the other states were not. With little variation those two states were always predictable. Equally predicable were the southern states of North Carolina, South Carolina, and Georgia for opposing anything except for congressional appointment. Georgia would prove interesting later.
The other states dithered on the subject. New York was rarely even featured in these votes, and when they were the deep ideological divide between John Lansing and Robert Yates versus Alexander Hamilton kept the delegation divided. As noted earlier, eventually none of them would be present for the convention.
On on July 17 the same basic voting pattern held as it did on June 2. On a third vote, congressional appointment was unanimous. Two days later almost every small state, barring Georgia, had flipped sides. It was around this same time that questions about representation, via the Connecticut Compromise, were finally getting ironed out and probably alleviating much of the anxiety among small states. Jacob Broom of Delaware seconded the motion to vote on the Electoral College both times and Connecticut itself would switch sides to employing electors to vote on the president. Oliver Ellsworth of Connecticut actually initiated the motion on July 19. Questions about the Senate lingered for a few days.[5]
A week later, on July 24, William Houstoun and James Dobbs Spaight, of Georgia and North Carolina respectively, attempted another change to carve out a provision for national appointment of the electors. This succeeded briefly and every small state except for Connecticut voted in favor of the idea. New Hampshire’s late arrival complicated matters again because they did not support the use of electors and formed a bloc with the southern states during the August vote. With New York missing, and Massachusetts strangely absent, the even split led to a rejected motion.
Finally, on September 5, the small states except for New Hampshire fell in line and Georgia defected to the Electoral College bloc leaving only the Carolinas. John Langdon and Nicholas Gilman were from two separate factions in New Hampshire politics. Langdon’s faction was his own and not particularly inclined toward nationalization; Gilman was more independent friendly to a faction of nationalists.[6] South Carolina’s delegation was largely dominated by John Rutledge who opposed the Electoral College, although Charles Pinckney also held great sway with matters and, at least in 1800, appeared to have been friendly to the Electoral College.[7]
Georgia had proven pivotal before on the question of representation. Abraham Baldwin cast the deciding vote on the Connecticut Compromise after befriending the delegation in other votes. Georgia, like New York, had an interesting delegation. William Few was serving concurrently in the Confederation Congress and absent for much of the deliberations until the final signature in September. William Pierce left to engage in a duel after a falling out with a business partner.[8] William Houstoun had been the nay vote to Baldwin’s yea on the representation question but was also absent by the end of July.
This was the quandary. Bruce Ackerman noted that popularity played little to no role in the framers’ calculus for choosing an executive. He argues that this became a feature of elections after the Adams-Jefferson battle in 1800. Electors seemed like a good middle ground but not if they were simply going to vote for the most popular man in their state. Therefore, it was settled that each elector would cast two ballots and one could not be from his state. This seems to have been an innovation of North Carolina’s Hugh Williamson. If this system failed then it became a matter of concern for the House but, in this sole instance, the House would vote in state blocs rather than as individuals. It is worth noting here that the Constitution forbade members of congress from also acting as electors. Even setting aside the problems that have arisen in the ensuing 233 years with the Electoral College, this system was far from ideal. One only has to envision a fifth-place finisher currying enough favor in the new House to suddenly become the president.
While imagining other systems of executive selection in 1787 could be useful as a counterfactual exercise, very few alternatives could be serious. Even analyzing the possibility of direct election would be fruitless given the still-limited suffrage in the period. Congressional appointment is the lone alternative that seemed to have been taken seriously at the convention. This arrangement would still have been a republican method. Roger Sherman pointed out in early July that the Congress were to be the representatives of the people. Gouverneur Morris, who stood flatly opposed to both term limits and congressional appointment, tethered the question to another: impeachment. If there was to be the threat of impeachment then it followed that a powerful enough cabal could simply appoint the president at will and could dangle the threat of impeachment over his head to induce him to do their bidding.
Legislative selection of some sort did have a pragmatic appeal to many of the delegates: it was cheap. Charles Pinckney of South Carolina spoke of “designing men” gaining the presidency in a popular election scheme, but the large geographic expanse of the original colonies made the idea of convening a one-time body to elect the president unattractive given the large distances. Madison was also aware of what a popular election scheme would entail for the South in an election where the three-fifths compromise would hold no leverage. Any election that required forming a majority would benefit the North; the number of Southern freemen would be far too few to have any equal footing.[9]
The final report from September 4 combined all of the elements that permitted compromise on the matter of executive elections. As Jack Rakove observed, “the political logic of the electoral college almost exactly replicated the debate over representation.” This observation holds true in the latter half of the convention, although by appearances the more pragmatic concerns held more weight in the first.
There were too many questions of intrigue in congressional appointment. Popular election would be a wonderful boon to large states or would benefit a popular tyrant. Even electors, if they were apportioned, could simply be a way for the largest states to wrest all the power. But if the electors were chosen at the state level, they would have to at least consider a single candidate outside of their state and, failing that, the House could vote on the president but not as individuals. For all of the contemporary criticism of the United States’ complex electoral mechanism, other countries can pose equally, and arguably more, complicated structures. One need only take a cursory glance at Belgium, The Netherlands, Bosnia-Herzegovina, Lebanon, or Myanmar to feel even more overwhelmed. Laws to get on the ballot in France are equally perplexing. A popular election scheme may be far simpler to grasp, and seem fairer and more democratic overall, but the basic problems of each system have not changed in 233 years. As one of many mechanisms of consent in the Constitution, it permits some parity among the various states when it comes to electing the President and helps to avoid delegitimizing the election by placing its outcome solely in the urban centers of the country. However, even a cursory glance of the historical record shows that the idea was not exactly sacrosanct in the minds of the Framers and that the Electoral College’s creation was borne of political expediency rather than a generally accepted idea of its usefulness. Nevertheless, casting it aside should require dialogue about the possible consequences at least on par with the dialogue that surrounded its creation.
[1]United States Constitution, Article I, Section 5, Clause 1. The Constitution is notoriously fickle about what a quorum is.
[2]Jason Yonce, “The Annapolis Convention Of 1786: A Call For A Stronger National Government,” Journal of the American Revolution,May 27, 2019, allthingsliberty.com/2019/05/the-annapolis-convention-of-1786-a-call-for-a-stronger-national-government/.
[3]The Decisive Blow is Struck: A Facsimile Edition of the Proceedings of the Constitutional Convention of 1776 and the First Maryland Constitution (Annapolis: Hall of Records Commission of the State of Maryland, 1977).
[4]Information on votes are drawn from Max Farrand, The Records of the Federal Convention of 1787 (New Haven: Yale University Press, 1937), 1: 77-31, 149-181 and 2: 29-120, 397-406.
[5]Broom’s appearances in the record are infrequent as were his personal documents left to posterity. This and his fight against premature adjournment without a drafted constitution are the only notable mentions, although Broom was fairly successful in both business and politics. See M.E. Bradford, Founding Fathers (Lawrence: University Press of Kansas, 1994), 108-109. Bradford lists Broom as an attendee of the Annapolis Convention but this is not borne out in the records of that meeting.
[6]Forrest McDonald, The Economic Origins of the Constitution (Chicago: University of Chicago Press, 1958), 21-38.
[8]Gerald J. Smith, “Abraham Baldwin,” New Georgia Encyclopedia, University of Georgia Press, November 11, 2005, https://www.georgiaencyclopedia.org/articles/history-archaeology/abraham-baldwin-1754-1807. Sam Fore, “William Pierce,” New Georgia Encyclopedia, University of Georgia Press, November 14, 2008, https://www.georgiaencyclopedia.org/articles/history-archaeology/william-pierce-1753-1789. Also, Lee Ann Caldwell, “Georgia and the U.S. Constitution,” Augusta University, accessed May 31, 2020, https://www.augusta.edu/library/resources/constitution_day/ga.php.
[9]Jack Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1996), 89-93, 259-75.
5 Comments
The Electoral College , in my mind, is an anachronism that deserves a 28th Amendment to abolish it. It intrudes into the very fabric of democracy by actually making the election of the President an indirect rather than a direct democratic selection. It was a paean to the states when it was adopted back in 1787 and it serves no useful purpose today. One can only look at the Elections of 1824, 1876, 1888, 2000, and 2016 for justification to eliminate it from our framework to elect a Chief Executive. While the Founding Fathers got many things right, this was not one of them.
“helps to avoid delegitimizing the election by placing its outcome solely in the urban centers of the country”
This statement near the end of the article is critical. In both 2000 (Bush) and 2016 (Trump), the winner won States across the country. They both lost in the mega cities on our coasts but the Electoral College ensured that the rest of the country, which is frequently derisibly referred to as “fly over country” was not ignored.
I don’t believe the framers saw the EC as the best and only choice. But for now, abolition seems like too much of a partisan issue over hurt feelings (I’m not suggesting that’s where you’re coming from though). The conversation needs to occur in a different context. I see the value of one man one vote. I’m just afraid that not-so-good hypothetical scenarios would come to pass and, barring another amendment, that we would be unable to reverse course. Right now my whole “project” concerns how much value we should place on subnational polities and the idea of federalism. Despite my willingness to question it, I’m just extremely cautious about those types of changes.
Jason,
Thanks for explaining how we got this additional “check” on the danger of one- man-one -vote by a population that, even today, could be swayed to the far right or far left by a “visionary leader”.
It is likely that any effort to change the system , however, would open a dialogue as difficult and inconclusive as the first. Nevertheless, perhaps something could be done about the power of “Swing States.”
By the way. “Delaware’s George Reed” is “Read”.
Bill Manthorpe
The EC was constructed, of course, before political parties formally emerged. As this informative article points out, the election of 1800 forced a Constitutional Amendment to correct how the president and Vice President were chosen, tacitly acknowledging the reality of political parties (which the Constitution remains silent about). But to abolish the EC outright (or reconstruct the scheme), another Constitutional Amendment will be required. Simply put, not likely. But it will be interesting to see what happens with the National Popular Vote for President Interstate Compact movement. Colorado, where I live, just made 15 states that have passed a provision requiring its electors to vote for the winner of the national vote for president, if the initiative is passed by enough states to reach 270 electoral votes nationally. But those 15 states are just shy of 200 electoral votes. If it comes about that enough states pass this initiative to meet the 270 votes threshold, then a way (pending all the lawsuits) might be found to circumvent the Constitutional Amendment process.
Wonder what the founders would think?