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In the fourth part of Dan Heaton’s thesis discussing the United States Electoral College, he looks at Proposals for Reform of the Electoral College.

CHAPTER 3 – PROPOSALS FOR REFORM.⁽¹⁾

Since its inception the Electoral College has been the subject of much debate both in the world of academia and in Congress.  From 1889 until 2000 some 587 constitutional amendments, proposing Electoral College reform have been introduced into Congress.

“The Electoral College discriminates in favour of the less populous states by guaranteeing them at least 3 Electoral Votes.  Thus there is not a proportional distribution of Electoral College Votes between the states based on population.  This creates a situation therefore in which the value of an individual’s vote differs between different states”

A History of Recent Reform Proposals.

Whilst there have been numerous proposals to abolish or reform the Electoral College, these proposals seem to periodically become more prevalent in the midst or aftermath of close or controversial elections.

1969 H.J. RES 681.

This amendment was proposed by Representative Celler during the 91^st Congress.  It provided for the abolition of the Electoral College and its replacement with a direct popular election for President and Vice-President.  In order to win a candidate had to receive not only the most votes but also at least 40% of all votes cast.  Should no one candidate receive the 40% threshold then there would be a runoff between the two leading candidates.  The proposition was defeated in the Senate having passed through the House of Representatives.

It was able to succeed to the extent that it did following the close election of 1968 when the candidacy of George C. Wallace, the American Independent Party Candidate looked as though it might push the election into Congress for a contingent election.

1979 S.J. RES 28., 96^th Congress

This proposal, advocating direct popular election, was approved by the Senate by 51 votes to 48 but this fell short of the two-thirds majority needed for a constitutional amendment.  This proposal followed the close election of 1976 in which Jimmy Carter won with 50.1% of the popular vote and one Republican elector voted for the Libertarian Party candidate. ⁽²⁾

1992 S.J.RES 297, S.J. RES 302 and S.J. RES 312, 102^nd Congress.

In 1992 the prominent candidacy of Ross Perot looked for a time as if it might take the election into Congress for a contingent election.  Thus, hearings were held on all three of the above direct election proposals.

Whilst the above proposals were not successful the recent debacle has again raised the ire of opponents of the Electoral College.  The Florida fiasco has already spawned a number of proposals, which have been introduced in the 107^th Congress since it first met in January 2001.

I propose to use the remainder of this chapter to outline the proposals, which have so far been submitted for consideration and to assess the effectiveness of each in solving the ills of the current system so commonly asserted by its opponents.  In order to achieve this assessment it would be of an advantage to briefly summarise the ills of the Electoral College as examined in depth earlier in this work. [Chapter 2]

The “Faithless“ Electors.

The problem caused by electors voting for candidates other than those to whom they have pledged support.

The Election of a President Who Does not Receive a Majority of the Popular Vote.

It is possible that a candidate may win the presidency without securing a majority of the popular vote, thus in effect a President is elected who more people voted against than for.

The Election of a President Who Does Not Win a Plurality of the Popular Vote.

It is technically possible for a candidate to actually win the Electoral Vote despite the fact that another candidate has won more popular votes than he has. 

Malapportionment and Voter Dilution.

The Electoral College discriminates in favour of the less populous states by guaranteeing them at least 3 Electoral Votes.  Thus there is not a proportional distribution of Electoral College Votes between the states based on population.  This creates a situation therefore in which the value of an individual’s vote differs between different states and thus some people’s votes are diluted.

The “Winner Takes All” System and the Disenfranchising of Minorities.

It is argued that the “Winner Takes All” system of selecting a states electors, whereby all of a state’s Electoral College votes are awarded to the winner of the statewide popular vote disenfranchises minorities.  It is suggested that, the system used in 48 states and the District of Columbia, discriminates against minorities in each state as those who vote against the statewide winner do not have their votes counted towards the election of the President.

The Contingent Election.

The system used to elect a President and Vice-President when no candidate receives a majority of the Electoral Vote.  It is argued that this system is even more disproportionate in favour of the less populous states than the apportionment of Electoral College Votes. This is because, in selecting the President, the House of Representatives vote as states and not as individuals and each state is guaranteed at least 1 Representative no matter what their population and when selecting the Vice-President, the Senators vote as individuals, there are still two Senators per state no matter what its population.

Reform Proposals in 107^th Congress.

There have been a number of reform proposals made in the 107^th Congress, which I will deal with under the following headings:

• Direct Popular Election.
• District Plans.
• Proportional Plans
• Hybrid Plans.

Direct Popular Election Proposals.

There have been two such proposals laid before Congress since January 2001.

H.J. RES 3 107^th Congress, was introduced to the House of Representatives on January 3^rd 2001 and provided as follows:

SECTION 1. The President and Vice President shall be elected by the people of the several States and the district constituting the seat of government of the United States.

SECTION 2. The electors in each State shall have the qualification requisite for electors of Senators and Representatives in Congress from that State, except that the legislature of any State may prescribe less restrictive qualifications with respect to residence and Congress may establish uniform residence and age qualifications.

SECTION 3.  The persons having the greatest number of votes for President and Vice President shall be elected.

SECTION 4. Each elector shall cast a single vote jointly applicable to President and Vice President.  Names of candidates may not be joined unless they shall have consented thereto and no candidate may consent to the candidate’s name being joined with that of more than one other person.

SECTION 5.  The Congress may by law provide for the case of the death of any candidate for President or Vice President before the day on which the President-elect or Vice President-elect has been chosen, and for the case of a tie in any election.

SECTION 6.  This article shall apply with respect to any election for President and Vice President held after the expiration of the 1-year period which begins on the date of ratification of this article.

The amendment proposal establishes direct election “by the people2 through Section 1 and through Section 3 provides that The person having the greatest number of votes” shall be President.  Section 2 would give Congress new powers to set uniform residence requirements and to set a uniform voting age.  Section 4 enshrines the principle of running mates by allowing voters only to vote for one set of joined candidates for the Presidency and Vice Presidency.  Section 5 gives Congress the power to provide a remedy in case of the death of a candidate or if there is an electoral tie.

The proposal does eliminate the possibility that a president can be elected despite another candidate receiving more votes than him.  This is explicit in Section 3 “The persons having the greatest number of votes for President and Vice President shall be elected”.   However, the proposal does nothing to alter the fact that a President can be elected who does not obtain a majority of the votes.  It is quite possible that in only a three way contest that a candidate could obtain as little as 34% of the national vote and still be elected President.  Previous proposals such as H.J. RES 681 91^st Congress in 1969 contained a 40% threshold, that a candidate had to achieve in order to be elected however, this proposal contains no such provision and so a minority President whom most voters voted against could still be elected.

By adopting direct popular election the amendment does eliminate the problem of faithless electors, as the position of elector is abolished.  The problem of malapportionment and voter dilution is effectively circumvented as each vote in the country becomes of equal value and the winner takes all system is abolished along with the states electoral votes.  However, the thorny issue of the contingent election is not totally put to rest by the amendment.  Whilst admittedly the possibility of a tie in a nation-wide popular vote is extremely unlikely the amendment only states that “Congress may by law provide…for the case of a tie in any election.”  Although the adoption of direct popular vote makes this issue practically redundant, the amendment would still allow Congress to decide the fate of the Presidency.

H.J. RES 5 was introduced to the House of Representatives on January 30^th 2001 by Representative Delahunt and provides as follows:

SECTION 1.  The President and Vice President shall be elected by the people of the several States and the District constituting the seat of government of the United States.

SECTION 2.  The electors in each State shall have the qualification requisite for electors of Senators and Representatives in Congress from that State, except that the legislature of any State may prescribe less restrictive qualifications with respect to residence and Congress may establish uniform residence and age qualifications.

SECTION 3.  The name of each candidate for President shall be paired with the name of a candidate for Vice President, and each elector shall cast a single vote for a pair of candidates.  Names of candidates may not be joined unless they shall have consented thereto and no candidate may consent to the candidate’s name being joined with that of more than one other person.

SECTION 4.  The Congress may by law provide for the case of a tie between the two candidates receiving the greatest number of votes for President and Vice President in any election.

SECTION 5.  Each State shall prepare a list of each candidate for President and each candidate for Vice President who received votes in the State and the number of votes each candidate received, and shall sign, certify, and transmit the list to the seat of the Government of the United States, directed to the President of the Senate.  The President of the Senate shall, in the presence of the Senate and House of Representatives, open all of the certified lists transmitted by the States, and the votes shall then be counted.  The persons having the greatest number of votes for President and Vice President shall be elected.

SECTION 6.  Congress shall have the power to enforce this article by appropriate legislation.

SECTION 7.  This article shall apply with respect to any election for President and Vice President held after the expiration of the 1-year period which begins on the date of the ratification of this article.

H.J. RES 5 also establishes direct popular election of the President and Vice President, however, it does not empower Congress to provide for cases in which a candidate dies.  The article provides a procedure for vote counting similar to that of the current system with the states counting the votes and sending the results to Congress to be collated.  The article also differs from H.J. RES 3 in that it provides for Congress to enact legislation to enforce the amendment.  This provision simply provides that the candidate who receives the most votes shall be the winner.  There is no requirement for a majority of votes or even a threshold and so the possibility of a minority President remains.

Both of the above direct popular election proposals currently before Congress are open to the usual criticisms that direct election proposals face.  Direct election detracts from the federalist nature of the Union, the candidates may only give weight to the opinions of voters in the most populous regions and so can be elected without obtaining broad nationwide support.  Direct election may also detract from minority interests in that by definition a candidate will wish to appeal to the vast majority of the electorate  and a nationwide vote may require a national, costly and time consuming recount.

H.J. RES 5 may circumvent the problem of costly recounts by specifying that the states should count the votes, however, as neither proposal requires a majority of votes to win nor sets a threshold a candidate could be elected with a relatively low percentage of the national vote.  Whilst the direct election should encourage more candidates and therefore a greater choice, a system which does not require a majority of votes or even set a threshold will still see candidates such as Ralph Nader seen as wreckers.  A system without preferential voting or a run off will see a vote for a minority candidate directly detract from another candidate and thus the two party system would probably be maintained with voters voting for the candidate they perceive as the lesser of two evils rather than their preferred candidate just as at present.

District Plan Proposals.

H.J. RES 1 was introduced in the House of Representatives on January 3^rd 20001 by Representative Clyburn and proposes the following:

SECTION 1.  In an election for President and Vice President, each State shall appoint two Electors to vote for the candidates for President and Vice President who received the greatest number of popular votes cast in the State for such election and, for each congressional district established pursuant to section 2 of this article, one Elector to vote for the candidates for President and Vice President who received the greatest number of popular votes in that district.

SECTION 2.  For purposes of section 1 of this article, each State shall by law establish a number of districts equal to the number of Representatives in Congress to which such State is entitled.  All such districts shall be established by the States at such intervals as the Congress by law provides.  Any district established for the election of Representatives in Congress as of the date of the ratification of this article shall be considered to be established pursuant to this section.

SECTION 3.  For purposes of this article, the District constituting the seat of Government of the United States shall be treated as if it were a State, except that the number of electors for the District may not exceed the number of electors for the least populous State.

SECTION 4.  The Congress may by law provide for the case of the death of any candidate for President or Vice President before the day on which the President-elect or Vice President-elect has been chosen, and for the case of a tie in any election.

SECTION 5.  The Congress shall have the power to enforce this article by appropriate legislation.

SECTION 6.  This article shall apply with regard to any election for President and Vice President that is held more than one year after the date of the ratification of this article.

Under this proposal the President and Vice President would be elected under a district plan system.  Under the district plan two Electoral College votes representing a state’s Senators would be awarded to the winner of the statewide popular vote whilst those Electoral College Votes representing a state’s Representatives would be allocated to the winners of those electoral districts.  Under Section 2 however, the districts, at the state’s discretion. Could be the existing Congressional Districts or ad hoc electoral districts created for the presidential election, equal in number to the Congressional Districts.  Under Section1 the office of Presidential Elector is retained and under Section 4 the Contingent election process is retained for the purposes of a tie.  There is no provision for electoral running mates as there is no requirement for a single joint vote and very importantly there is no requirement for the winning candidate to receive a majority of the Electoral Votes.  Under Section 4 the contingent process is only used in the case of a tie.

This system would maintain the concept of federalism, but would retain the much maligned contingent election and would allow the possibility of a minority President, not only in terms of the national popular vote but also in the Electoral College.  The system would enhance minority interests as it is likely that they would be of a sizeable portion of the voters in many of the districts, assuming that there was no gerrymandering, however, the less populous states would still be over represented. 

H.J.RES 18 was introduced in the House of Representatives on February 13^th 2001 by Representative Engel and states as follows:

SECTION 1.  In an election for President and Vice President, each State shall appoint two Electors to vote for the candidates for President and Vice President that received the greatest number of popular votes in that State and, for each congressional district established under section 4 of this article, one Elector to vote for the candidates for President and Vice President that received the greatest number of popular votes in that district.  The candidate having the greatest number of electoral votes for President shall be the President.  The candidate having the greatest number of electoral votes for Vice President shall be the Vice President.

SECTION 2.  If two or more candidates receive an equal number of electoral votes for President and such number is greater than the number of such votes received by any other candidate, then from the candidates who receive such equal number of votes the House of Representatives shall choose immediately, by ballot, the President.  But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice.

SECTION 3.  If two or more candidates receive an equal number of electoral votes for Vice President and such number is greater than the number of such votes received by any other candidate, them from the candidates who receive such equal number of votes the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

SECTION 4.  Each State shall by law establish, for the election of Representatives in the Congress and for purposes of section 1 of this article, a number of districts equal to the number of Representatives to which such State is entitled.  All such districts shall be established by the States at such intervals as the Congress by law provides.  Any district established for the election of Representatives in the Congress as of the date of the ratification of this article may be considered to be established pursuant to this section.

SECTION 5.  For purposes of this article other than sections 2 and 3, the District constituting the seat of Government of the United States shall be treated as if it were a State, except that the District may not appoint a number of Electors greater than the number of Electors appointed by the least populous State.

SECTION 6.  The Congress shall have the power to enforce this article by appropriate legislation.

SECTION 7.  This article shall apply with regard to any election for President and Vice President that is held more than one year after the date of the ratification of this article.

This proposal also provides for the election of the President and the Vice President by use of a district plan.  Like H.J. RES 1 it does not require that the winners obtain a majority of the electoral votes, merely requiring that the candidates with the most electoral votes are the winners.  It also explicitly maintains the current contingent election process in case of a tie, maintaining the 12^th Amendment provision of one state one vote in the House for electing the President.

The proposal is therefore open to the same criticisms as H.J. RES 1 especially in that it allows a candidate to win the Presidency without receiving a majority of the electoral votes never mind a majority of the popular vote.

H.J. RES 37 was introduced in the House of Representatives on March 13^th 2001 by Representative Clement and proposes the following:

SECTION 1.  In an election for President and Vice President, each State shall appoint one elector for each district in that State represented by a member of the House of Representatives.  Each elector shall cast a vote for the candidates for President and Vice President who received the greatest number of popular votes in that district.

SECTION 2.  Each State shall appoint two electors who shall each cast a vote for the candidates for President and Vice President who received the greatest number of popular votes in that State.

SECTION 3.  Electors for the District constituting the seat of Government of the United States as provided by the twenty-third article of amendment shall each cast a vote for the candidates for President and Vice President who received the greatest number of popular votes in the District.

SECTION 4.  If no candidate for an office receives a majority of the votes cast by the electors, then from the two candidates for that office receiving the highest number of electoral votes, the House of Representatives shall choose immediately, by ballot, one candidate who shall serve in that office.

SECTION 5.  If ratification of this article by three fourths of the several States occurs within the calendar year of a Presidential election, this article shall not take effect until the following Presidential election.

SECTION 6.  Congress shall have the power to enforce this article by appropriate legislation.

This article proposes use of a district system.  It differs from the previous two district plan proposals in that it requires the District of Columbia votes to be given to the District wide winner no matter how many votes the District may be entitled to in the future.  The amendment also provides that a candidate must obtain a majority of the electoral votes in order to win the Presidency.  The system proposed also maintains an adapted contingent election process.  In the new version of the contingent election the House of Representatives would vote for both President and Vice President leaving the Senate out of the process.  The House would also implicitly vote as individuals rather than as states.

The system proposed in H.J.RES 37 still allows the possibility of a minority president and even one who received less popular votes than the loser, however, this is reduced because of the better representation of the minority vote in the several states.  Such outcomes are also possible in the case of a contingent election but this is somewhat more representative because the vote would be taken by individuals rather than over-representing the smaller states and the removal of the Senate from the process.

Overall the district plan proposals are more representative of minorities than the winner takes all system.  It allows minorities whether they be inner city ethnic or rural communities more leverage in that they are able to gain representation through the congressional district electoral votes.  Nonetheless, the issue remains that a minority President can be elected and a winner of the national vote may also lose although the likelihood is greatly reduced.

Proportional Plan.

H.J RES 17 was introduced to the House of Representatives by Representative Engel on  February 13^th 2001 and provides: as follows:

SECTION 1.  In an election for President and Vice President, each State shall appoint a number of Electors to vote for each candidate for President or Vice President that bears the same ratio to the total number of Electors of that State as the number of votes received by that candidate bears to the total number of votes cast in that State.  Each State shall make computations for purposes of carrying out this section in accordance with such laws as it may adopt, including laws providing for the allocation of Electors among more than two candidates receiving 5 per cent or more of the total number of votes cast in the State under such criteria as the State may by law establish, except that fractional numbers less than one one-thousandth shall be disregarded.  The candidate having the greatest number of electoral votes for President shall be the President.  The candidate having the greatest number of electoral votes for Vice President shall be the Vice President.

SECTION 2.  If two or more candidates receive an equal number of electoral votes for President and such number is greater than the number of such votes received by any other candidate, then from the candidates who receive such equal number of votes the House of Representatives shall choose immediately, by ballot, the President.  But in choosing the President, the votes shall be taken by States, the representation from each State having one vote, a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice.

SECTION 3.  If two or more candidates receive an equal number of electoral votes for Vice President and such number is greater than the number of such votes received by any other candidate, then from the candidates who receive such equal number of votes the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

SECTION 4.  For purposes of this article other than sections 2 and 3, the District constituting the seat of Government of the United States shall be treated as if it were a State, except that that the District may not appoint a number of Electors greater than the number of Electors appointed by the least populous State.

SECTION 5.  The Congress shall have the power to enforc1e this article by appropriate legislation.

SECTION 6.  This article shall apply with regard to any election for President and Vice President that is held more than one year after the date of the ratification of this article. 

This proposal would adopt a proportional system to elect the President and Vice President.  Essentially, the candidates would receive the proportion of state’s electoral votes in ratio to the proportion of the popular votes they received in that state.  The proposal would however, require a candidate to obtain five per cent of a state’s popular votes before receiving any of that state’s electoral votes.  The amendment does not require that the winner should have a majority of the electoral vote or any minimum percentage of the popular vote, therefore a President could be elected who received fewer popular votes than another candidate, and a minority president both in terms of electoral and popular votes is possible.  The system also maintains the current contingent election system in Congress in the event of an electoral tie. 

The system does protect minorities in that every vote in a state, no matter where in that state it is cast, is of equal value in that state and it also maintains the federalist principal.  The system does deter third party candidates, as they would require five per cent of the popular votes in a state before obtaining any electoral votes.  However, this helps to require a candidate to obtain a broad base of support as whilst a candidate may obtain large percentages in some states they would be wise to attempt to obtain at least that vital five per cent of the vote instates in which they are less popular.

A Hybrid Proposal.

H.J. RES 25 was proposed by Representative Leach on March 1^st 2001 and included the following provisions:

SECTION 1.  The President and Vice President shall be elected in accordance with this article by the people of the several States and of the District constituting the seat of Government of the United States.  The electors in the District shall have such qualifications as Congress may by law prescribe, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

SECTION 2.  On the day designated by Congress for holding an election for President and Vice President, each elector shall cast a single vote jointly applicable to a pair of candidates for President and Vice President.  The candidate for President and the candidate for Vice President shall be clearly indicated within each pair.  The names of candidates for President and Vice President shall not be joined as a pair unless both candidates shall have consented thereto and no name of a candidate may be joined with that of more than one other person.

SECTION 3.  The times, places, and manner of holding an election for President and Vice President shall be regulated in the District by Congress, and in each State by the legislature thereof, except that Congress may at any time make or alter such regulations.

SECTION 4.  Each State shall have the number of electoral votes that is equal to the number of Senators and Representatives in Congress to which such State is entitled.  The District shall have the number of electoral votes that is equal to the number of Senators and Representatives in Congress to which the District would be entitled if it were a State.  The legislature of each State shall determine whether to apportion the electoral votes of such State in accordance with the provisions of Section 5 or section 6.

SECTION 5.  The legislature of any State may determine to, and the District shall, apportion all of the electoral votes of such State or the District to the pair of candidates for President and Vice President that received the greatest number of votes in such State or District.

SECTION 6.  The legislature of any State may determine to apportion two of the electoral votes of such State to the pair of candidates for President and Vice President that received the greatest number of votes in such State, and to apportion one electoral vote, for each district from which a Representative from such State is elected, to the pair of candidates for President and Vice President that received the greatest number of votes in such district.

SECTION 7.  The chief executive of each State and the District shall, within thirty days after an election for President and Vice President, transmit a signed and sealed certificate to the President of the Senate stating the number of electoral votes of such State or District that are apportioned to each pair of candidates for President and Vice President, and the total number of votes received in such State or District by each pair of candidates for President and Vice President.  The President of the Senate shall, in the presence of the Senate and House of representatives, open all the certificates and announce the contents.

SECTION 8.  The pair of candidates for President and Vice President who received the greatest number of votes, with such number determined by calculating the sum of the total number of votes received by each pair of candidates for President and Vice President in each State and the District and required to be stated in the certificates to the President of the Senate, shall be apportioned a number of additional electoral votes equal to the product of two times the sum of the number of States and the District.

SECTION 9.  The pair of candidates for President and Vice President receiving the greatest number of electoral votes shall become President and Vice President, if such number be a majority of the sum of the number of additional electoral votes and the number of apportioned electoral votes required to be stated in the certificates to the President of the Senate.

SECTION 10.  If no pair of candidates for President and Vice President receives such majority, then the House of Representatives shall choose immediately, by ballot, the President from the candidates for President, not exceeding three, receiving the highest number of electoral vote when paired with a candidate for Vice President, and the Senate shall choose the Vice President from the candidates for Vice President receiving the two highest number of electoral votes when paired with a candidate for President.  In choosing the President, one round of votes shall be taken first by State, the representation from each State having one vote.  A quorum for such purpose shall consist of a member or members from two-thirds of the States, and a majority of all States shall be necessary to a choice.  If no candidate for President receives such majority, then the House of Representatives shall choose immediately, by ballot, the President from the same such candidates, with each Representative having one vote.  A quorum for such purpose shall consist of two-thirds of the whole number of Representatives, and a majority of the whole number of Representatives shall be necessary to a choice.  In choosing the Vice President, each Senator shall have one vote, a quorum shall consist of two-thirds of the whole number of Senators, and a majority of the whole number of Senators shall be necessary to a choice.

SECTION 11.  This article shall apply with respect to any election of a President and Vice President to a term of office commencing later than two years after the date of the ratification of this article. 

This proposal provides States with a choice of how to allocate their electoral votes.  Under Section 5 they may use the current winner takes all system or under Section 6 they may use the district plan.

The proposal includes an innovation in that an extra 102 national electoral votes would be awarded to the candidate who won the most national popular votes.  Thus the winner of the election would be the candidate who won a majority of all the votes, the currently allocated electoral votes plus the national bonus votes. 

The resolution also alters the contingency election process.  The process retains the House of Representatives choosing the President from the top three candidates, and the Senate choosing the Vice President from the top two candidates.  However, if there is no winner in the House of Representatives then the Representatives vote again but as individuals rather than as States.

The proposal in giving the States a choice on how to allocate their electoral votes in fact would make very little difference as they already have this choice.  Nebraska and Maine use the district system whilst the other 48 States and the District of Columbia use the winner takes all.  The only thing that the provision does is to in effect ban a State from using a proportional system.

The bonus scheme proposal whereby 102 extra votes would be awarded to the winner of the national popular vote, would in effect take away the possibility of a candidate winning the national popular vote but losing the electoral vote as in a close election the 102 extra votes would more than outweigh any difference in the electoral vote.

However, the system does not guarantee that the winner will have a majority of the popular vote and the problem of malapportionment still exist even if to a lesser extent.  The use of the national vote could result in numerous recounts if it becomes crucial in a close race.

“none of the current proposals before Congress are a panacea to the defects which opponents of the Electoral College denounce so vehemently”

It is clear that none of the current proposals before Congress are a panacea to the defects which opponents of the Electoral College denounce so vehemently.  All of the proposal have their advantages, whether it be greater representation of minorities whilst maintaining the concept of federalism in district plans or the simple appeal of one man one vote as in the direct election proposals. 

In the next chapter I shall look at the systems by which the sneering European “democracies” select their heads of state in order to see whether the United States can learn anything and whether indeed the Europeans have the right to be so complacent about their own systems.

Notes

1. See generally CRS Report for Congress RL 30804 “ The Electoral College: An Overview and Analysis of Reform Proposals” January 16, 2001 L. Paige Whitaker & Thomas H. Neale & Specifically CRS Report for Congress “The Electoral College: Reform Proposals in the 107^th Congress”  March 13^, 2001, Thomas H. Neale.
2. See  earlier “Faithless Elector”

United States Electoral College

• INTRODUCTION
• CHAPTER 1. ORIGINS & HISTORY OF THE ELECTORAL COLLEGE
• CHAPTER 2. NOT A PERFECT SYSTEM – THE PROS & CONS OF THE ELECTORAL COLLEGE
• CHAPTER 3. PROPOSALS FOR REFORM
• CHAPTER 4. THE GRASS IS ALWAYS GREENER?
• CONCLUSION

In the third part of Dan Heaton’s thesis discussing the United States Electoral College, he looks at the Pros & Cons of the Electoral College.

CHAPTER 2 – NOT A PERFECT SYSTEM – THE PROS & CONS OF THE ELECTORAL COLLEGE.

“The impetus for abolishing the electoral college is as strong as it is simple.  No sane electoral system awards victory for second place.  Indirect presidential elections made sense, if ever they did, only in the early American republic.  Voters today should be trusted to cast a straightforward vote for a presidential candidate rather than for a panel of occasionally faithless and invariably faceless electors.” ⁽¹⁾

This view expressed by Professor Jim Chen of the University of Minnesota Law School on 22^nd November 2000 in light of the Florida fiasco has been echoed by numerous academics and commentators, both legal and political, since the 2000 election.  The case for the abolition or reform of the Electoral College has been argued, if out of sight of the public, ever since its creation.  There are those who believe that the Electoral College is inherently flawed and should be abolished out of principle and there are those who believe that it should be abolished or reformed because it is damaging democracy.  There are however, numerous advocates of the Electoral College who see the events of November 2000 as merely a blip in an otherwise fair and equitable system which allows the people a voice but also maintains the federalist nature of the Constitution and that it should be maintained at all costs.

In this chapter I shall assess the disadvantages of the Electoral College system as voiced by its detractors and the its advantages as espoused by its supporters. 

“They always voted at their Party’s call

And never thought of thinking for themselves at all:

As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.”

The Disadvantages of the Electoral College.

The Faithless Electors.

One of the main arguments against the Electoral College put forward by its opponents is the issue of faithless electors.  They find it to be an affront to the practice of popular elections that an elector pledged to vote for one candidate should then cast their vote for another against the wishes of the electorate.  Mr Justice Jackson in his dissenting judgment in the case of Ray v Blair (2) (1852) stated the role of elector as he saw it historically:

“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its texts, that electors would be free agents, to exercise an independent and non-partisan judgment as to the men best qualified for the nations highest offices.  This arrangement miscarried.  Electors, although often personally eminent, independent, respectable, officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire:

They always voted at their Party’s call

And never thought of thinking for themselves at all:

As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.” ⁽³⁾ 

Thus as Justice Jackson states so eloquently it is rare that an elector votes against their pledged candidate.  However, over the years, the faithless electors have continued to appear sporadically and for their differing reasons, although fortunately none as yet have made a difference to the outcome of an election.  The occasions when electors have not fulfilled their pledge may be rare but have occurred as recently as 2000.  The fact that the political party organisations have continued to nominate people who could not be trusted remains astounding.  Here are some instances of faithless electors from recent the last century:

• 1948 – Preston Parks, a Democratic Party from Tennessee, voted for Governor Strom Thurmond of the States’ Rights ticket instead of Harry S. Truman.
• 1956 – W. F. Turner, Democratic elector in Alabama, voted for a local judge instead of Adlai E. Stevenson.
• 1960 – Henry D. Irwin, an Oklahoma Republican attempted to stop Kennedy from being elected by organising conservative Democrats to vote for Harry Byrd , the Democratic Senator for Virginia.  However, in the end only he voted for Byrd and Kennedy was elected.
• 1968 – Dr Lloyd W. Bailey, a Republican elector from North Carolina, voted for George Wallace of the American Party instead of his pledge Richard Nixon.  He alleged that he did this because the Congressional District in which he lived had voted for Wallace, but it is believed that he was against the incoming Nixon appointing Henry Kissinger. ⁽⁴⁾
• 1972 – Roger MacBride, a Virginian elector for Richard Nixon decided to vote for John Hosper of the newly formed Libertarian Party.
• 1976 – Mike Padden who was a Washington Republican, pledged to vote for Gerald Ford, who instead voted for Ronald Reagan bizarrely as a protest against the winner, Democrat Jimmy Carter, in order to highlight his own Pro-Life views.
• 1988 – Margarette Leach, a Democratic elector for West Virginia, decided to highlight the fact that electors could vote for whoever they like by reversing her vote and voting for Senator Lloyd Benson of Texas {the Democratic Vice-Presidential candidate} for President and Michael Dukakis {the Democratic Presidential candidate} for Vice-President.  It was of no consequence however, as George Bush Senior had already won.
• 2000 – Barbara Lett-Simmons, an Al Gore pledged Democratic Party elector from the District of Columbia, abstained by casting a blank ballot, presumably in protest at the Florida fiasco.

Some states have tried to circumvent the potential problem by endeavouring to bind their electors through their state laws.  New Mexico, North Carolina, Oklahoma, South Carolina and Washington now demand that electors pledge to vote for their party and have sanctions available for breach.  The District of Columbia, Florida, Massachusetts, Mississippi and Oregon all require a formal pledge but do not back this up with any legal sanctions.  Alabama, Alaska, Colorado, Maine, Maryland, Montana, Vermont and Wyoming direct their electors to support the winning ticket and California, Connecticut, Hawaii, Michigan, Ohio, Virginia and Wisconsin direct the electors to vote for the party which they represent. ⁽⁵⁾ [CRS  Report for Congress RL 30804 p9]

Thus 24 of the 50 states do not impose upon the electors any duty to vote in a particular way and in effect leave them as free agents.  It is also unclear as to whether the sanctions imposed by some states are constitutional.  However, the Supreme Court in Ray v Blair (1952) ⁽⁶⁾ ruled that a state can mandate a political party to exclude from their nominees for electors anyone who refuses to make a formal pledge to vote for their candidate.

The faithless elector argument espoused by opponents of the Electoral College undoubtedly has some merit because potentially, in a close election, if enough electors broke their pledges then they could affect the result of the Electoral vote and the presidency.  However, no elector has yet managed to change the outcome of an election and most faithless electors have simply cast bizarre votes as protests, with the outcome of the election already decided.

The fear of a potential coup by faithless electors could be circumvented without changing the essence of the Electoral College, by adopting an automatic plan.  Under such a scheme, which I will assess in more detail later, the Electoral College votes are simply awarded on the basis of the statewide ballot with the intermediary office of elector being abolished.

“This occurred in 1992 to Bill Clinton because of the strong candidacy of Ross Perot.  There was a clear Electoral College winner but Clinton received less than 50% of the popular vote”

The Election of a President Who Fails To Receive a Majority of the Popular Vote.

Opponents of the Electoral College argue that the system allows the possibility a candidate being elected with less than 50% of the popular vote, a plurality winner.  This is again a meritorious argument with minority winners becoming more likely with the rise of third party candidates.

A minority President can be and indeed has been elected in three ways.  Firstly, in 1824 a minority President was elected because America was so divided that there were more than two strong candidates.  No candidate received a majority of electoral votes and so Congress was forced to decide from amongst the candidates, whom should be President, eventually selecting John Quincy Adams.

Secondly, it is possible to elect a minority President, if, as in 1888, one candidate wins heavily in some states and loses narrowly in others, thus whilst winning the popular vote, losing in the Electoral College.

Thirdly, it is possible to elect a minority President whenever a third party candidate takes enough popular votes away from the two main party candidates that even if there is a clear popular and electoral winner, in fact the winner still does not obtain a majority of the popular vote.  This occurred in 1992 to Bill Clinton because of the strong candidacy of Ross Perot.  There was a clear Electoral College winner but Clinton received less than 50% of the popular vote.  Indeed, in 2000 whilst Al Gore did obtain more popular votes than George W Bush he only obtained 48.38% of the national popular vote, primarily because of the Green Party candidate Ralph Nader who polled 2.74% of the national vote.

The possibility of electing a minority President will not be diminished, simply by abolishing the Electoral College.  The situation could still occur in a direct election.  The only way that a majority President could be guaranteed would be by having second ballots which would be expensive or by using a preferential ballot paper on which candidates are ranked in order of preference.  I will assess the viability of such a proposal later in this work.

A Candidate Can Win The National Vote But Lose The Election.

The 2000 Presidential Election was not the first time that a candidate has been elected having received fewer popular votes than their rival.

In 1876 Samuel Tilden received more popular votes than Rutherford B. Hayes but Hayes won by one electoral vote due to the Colorado Legislature selecting electors to save money, having only just joined the Union.

In 1988 Democrat Grover Cleveland won more popular votes than Republican Benjamin Harrison but Harrison was able to win the Presidency through the Electoral College.  This was due to Cleveland winning heavily in some states and Harrison winning narrowly in others.

However, the issue had remained a purely academic and theoretical possibility for over a century until the 2000 when the election became too close to call and the final tally of Florida became so crucial.  It is probably the issue that caused the most anguish amongst commentators because of the simplicity of the argument that the winner should have won.

It appears to European observers as if American democracy is a sham.  The most basic rule of democracy is that he who receives the most votes should win.  However, it should be remembered that the United States is a federal state and that the founding fathers wished  that the President should have broad national support.

The problem of a President being elected with fewer votes than his rival could be avoided through national direct election, but should there be a similarly close contest it could result in a costly and time consuming national recount.  Such a situation would make the Florida scenario pale into insignificance. 

Malapportionment and Voter Dilution.

It is argued by detractors that the Electoral College system of guaranteeing each state at least 3 electoral votes, thus not being completely proportional, is a malapportionment of representation.

Essentially they believe that the lack of equality of voting power, a dilution of the value of a persons vote, is contrary to the Equal Protection Clause of the 14^th Amendment., which states:

“…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any persons of life, liberty, or properly, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws….”

Since the 1960’s state legislatures have been forced to have reasonable equality of representation. ⁽⁷⁾ In the case of Reynolds v Simms (1964) ⁽⁸⁾ the Alabama state legislature had its apportionment of districts deemed unconstitutional by the Supreme Court.  Chief Justice Earl Warren  stated:

“To the extent that a citizen’s right to vote is debased, he is that much less a citizen.  The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficiency of his vote.  The complexions of societies change, often rural in character becomes predominantly urban.  Representation schemes once fair and equitable became archaic and outdated.  But the basic principle of representative government remains, and must remain, unchanged – the weight of a citizen’s vote cannot be made to depend on where he lives.  Population is, of necessity, the starting point for consideration and controlling criteria for judgment in legislative apportionment controversies.  A citizen, a qualified voter, is no more no less so because he lives in the city or on the farm.  This is the clear and strong command of our Constitution’s Equal Protection Clause.  This is an essential part of the concept of a government of laws and not men.  This is at the heart of Lincoln’s vision of “government of the people, by the people [and] for the people”….” ⁽⁹⁾

It would appear that there could be some argument that the Electoral College does discriminate against people who live in more populous states as their individual votes are not of equal value to those of people in less populous states.  However, the above rulings only relate to state legislatures and indeed a strict interpretation of the Fourteenth Amendment only declares that states should provide equal protection, and not that the United States should. 

It appears therefore that whilst the Electoral College does break the spirit of Equal Protection it does not in fact breach the 14^th Amendment.

“Winner Takes All” and The Disenfranchising of Minorities.

One argument put forward against the Electoral College is that it discriminates against minorities.  This it is argued is because of the almost universal use of the “Winner Takes All” system of selecting electors.  It is clear that a voter who votes for the losing candidate under that system does not have their voice heard.  However, Matthew M. Hoffman argues that the “Winner Takes All” system coupled with his assertion that people vote along racial lines (blacks voting for the Democrats and whites predominantly for the Republicans) means that racial minorities do not have their voice heard.  He also argues that the unit voting system is illegal under The Voting Rights Act 1965. ⁽¹⁰⁾  

However, given that minorities tend to live in the most populous states then they have the ability to swing the vote in these most crucial of states.  Therefore, their votes are of great value to candidates who would surely wish to appeal to them.  Nonetheless, it is true that literally millions of people in a state can vote for the losing candidate and not receive any representation in the College.  Victor Williams and Alison m. MacDonald  argue that that is unrepresentative:

“The winner-take-all state unit voting methodology of the electoral college is an inherently unfair and unjust vote weighting system that clearly dilutes the non-majority votes of each state….  [T]he winner-takes-all state unit electoral college voting is an obvious violation of the principle that one persons vote should have the same value as another’s.” ⁽¹¹⁾

It is often argued that the system depresses voter turnout.  It is suggested that in states, which continually return electors from the same party that voter turnout, is depressed because people of a different persuasion do not vote.  However, even according to figures compiled by The Center for Voting and Democracy, who are against the Electoral College, Presidential elections consistently attract higher turnouts than Congressional elections. ⁽¹²⁾ It is therefore suggested that the poor voter turnout figures in the United States are a result of a lack of belief or interest in the political system in general rather than simply being the fault of the Electoral College.

The Contingent Election.

The contingent, election used in cases where no candidate receives a majority of the electoral votes is a much criticised procedure.  Opponents of the contingent election argue that it is inherently undemocratic because each state’s congressional delegation has only one vote between them and thus gives a very disproportionate voice to the smaller states.   This is undoubtedly the case and is far more disproportionate than the College itself.  However, it is all part of the federal nature of the United States and because of the two party system now prevalent in the country it has not been used since 1824.

There can be no doubt that there are some very cogent arguments against the Electoral College which can be summed up in Mr Justice Jackson’s comments in Ray v Blair (1952) ⁽¹³⁾

“The demise of the whole electoral system would not impress me as a disaster.  At its best it is a mystifying and disturbing factor in presidential elections which may resolve a popular defeat into an electoral victory.  At its worst it is open to local corruption and manipulation once so flagrant as to threaten the stability of the country.  To abolish it and substitute direct election of the President, so that every vote wherever cast would have equal weight in calculating the result, would seem to me a gain for simplicity and integrity of our governmental process.”

There are however, numerous arguments in favour of the system.

The Advantages of the Electoral College.

Despite, the recent debacle and the democratic arguments used against the Electoral College, the system still has its vociferous advocates  whose arguments are a mixture of theoretical and practical positives.

Election Requires a Broad Range of Support.

Proponents of the Electoral College point to the fact that in order to win the

Presidency a candidate must acquire a broad geographical support.  The United States of America has a vast geography, with different climates, terrains and cultures.  America has large urban areas, industrial towns but also vast agricultural regions.  In order to become President, under the Electoral College, it is suggested that a candidate must obtain support from both the urban population centres and the agricultural belt.  The winning candidate must thus appeal to more than one section of society or one region of the country in order to obtain election.  The President would thus be aware of the issues affecting the whole country and therefore better able to govern the nation as a whole.

John Samples, Director of the Center for Representative Government at the Cato Institute echoes many Electoral College supporters:

“…We must keep in mind the likely effects of direct popular election of the president.  We would probably see elections dominated by the most populous regions of the country or by several large metropolitan areas.  In the 2000 election, for example, Vice President Gore could have put together a plurality or majority in the Northeast, parts of the Midwest, and California.

The victims in such elections would be those regions too sparsely populated to merit the attention of presidential candidates.  Pure democrats would hardly regret that diminished status, but I wonder if a large and diverse nation should write off whole parts of its territory.  We should keep in mind the regional conflicts that have plagued large and diverse nations like India, China, and Russia.  The Electoral College is a good antidote to the poison of regionalism because it forces presidential candidates to seek support throughout the nation.  By making sure no state will be left behind, it provides a measure of coherence in our nation.” ⁽¹⁴⁾ 

Whilst it is probable that more attention would be given to the most populated areas in a direct election, comparisons with third world and communist or ex-communist countries are alarmist to say the least.  It may well be that in the early days of the Union it would have been possible for the country to be split. Indeed this happened with the civil war, but with increased mobility and improved communications the country is effectively a lot smaller and less diverse than it used to be.  It is worth noting also that apart from the Native Americans, the population is of fairly recent immigrant descent and thus, regional and ethnic disputes of the nature seen in Russia and India are hardly plausible.

Federalism and The Separation of Powers.

The United States of America is a union of sovereign states and as such has at its core a federal system of government.  The Electoral College is a compromise between national and state interests and therefore acts as an important balance.  The Electoral College was designed to represent the states’ choice for president.  However, it achieves this through the distribution of electoral votes based on representation in congress and thus guarantees a voice for the small states whilst giving weight to the more populous states.  It is argued by its supporters that to abolish the Electoral College would be a breach of the crucial balance between state and national government.

As well as being part of the overall federal structure of the union it is also argued that it plays a part in the application of the doctrine of the separation of powers.  This is because in the United States the separation of powers is not merely between the executive, legislature and the judiciary but also between the national and state governments.  This division acts as a second level of protection against too much power being concentrated in the hands of any one group of people.  Its proponents argue that to abolish the Electoral College would simply give the most populous states complete control over the appointment of the Chief Executive of the whole Union, which would give those states undue influence over others, and would be a breach of the very essence of federalism.  John C. Eastman  of the Claremont Institute states the federalist argument as follows:

“Congress, for example, is divided between two branches, only one of which is apportioned by population while the other, the Senate, is constituted by the distinctly non-majoritarian  allotment of seats to States of vastly different populations.  This, the founders believed, served to check the raw passions of a majority that might gain sway in the House of Representatives and use its majority power to trample the rights of minorities.  And it served to protect the States as a fundamental component of our constitutional system, able to check the power of the national government and thereby help ensure liberty.

The same concern with raw power underlies the constitutional doctrines of enumerated powers, of federalism, of an independent, non-elected judiciary, and yes, of the Electoral College.  Indeed, the Electoral College is part and parcel of the entire constitutional structure.” ⁽¹⁵⁾

“In the 2000 election the Green Party candidate Ralph Nader obtained 2.74% of the popular vote and yet received no Electoral College votes.  He may well have achieved more popular votes if people actually believed that he could obtain electoral votes”

Political Stability.

Supporters of the Electoral College point to the relative political stability  that the United States has enjoyed compared to other “democracies”.  They argue that this stability is aided by the Electoral Colleges tendency to exacerbate the two party system.  They point to the fact that minor parties have very little chance of obtaining any electoral votes, as a deterrent to extremist parties.  They suggest that this leads to interest groups having to bring themselves under the umbrella of one of the major parties.  Whilst their views are then heard, they have to abandon their more extreme views and most radical policies in favour of more practical consensual policies.  According to the argument, what the United States has in the shape of the Democrats and the Republicans are two practical coalitions, who essentially share the same ideology and aims only differing through methodology.  Therefore, the argument goes, the two party system avoids major changes in policy whenever there is a change of government, thus leading to greater continuity.

Whilst it is true that the United States is a relatively stable democracy, the two party system as exacerbated by the Electoral College does however limit voter choice.  In effect anyone who does not agree with either of the two major candidates has no way of gaining representation through the ballot box.  In the 2000 election the Green Party candidate Ralph Nader obtained 2.74% of the popular vote and yet received no Electoral College votes.  He may well have achieved more popular votes if people actually believed that he could obtain electoral votes.   It would appear that the political stability, allegedly achieved through the Electoral College, is achieved at the expense of effective electoral choice. 

The Electoral College Webzine, a website espousing the benefits of the College states that:

“Whilst the Electoral College tends to produce candidates that look like Tweedledum and Tweedledee, direct election would produce a choice between Pat Buchanan and Pat Robertson or Jesse Ventura and Jesse Jackson.” ⁽¹⁶⁾

Notwithstanding the adversarial nature of some of the aforementioned, it could be argued that at least these characters might raise the level of interest in political life in the United States and lift the poor voter turnout figures.

Minority Interests.

Whilst its detractors argue that the lack of equal protection and the winner takes all system of selecting electors damages minority interests, supporters of the college argue that that very unit voting system actually promotes the interests of minorities.

The Electoral College’s supporters argue that in swing states in which every vote counts, the minority can vote en bloc and therefore increases the importance of their vote.  This political leverage means that Presidential candidates have to be receptive to minority views if they want to win such crucial states.  If the Electoral College were abolished in favour of direct popular election, then small minorities would be swamped by the majority in a national vote and candidates it is argued would have little to gain from appealing to such groups.  

An example of the leverage effect could be that candidates may very well come out with pro-Israel policies in order to win the Jewish vote in a state like New York which has a sizeable Jewish minority.  A similar example would be Cuban policy being decided by the need to obtain Hispanic votes in Florida.

This minority bloc voting is further enhanced by the fact that ethnic minorities have tended to congregate in large cities in the most populous states, and therefore they live in the states of greatest electoral vote value and of most interest to presidential candidates.  Hence, the Electoral College actually increases the importance of minority views to presidential candidates and thus serves them better than would direct election.

Extensive Recounts.

Following the recounts in Florida which re-ignited the issue of he Electoral College, its supporters have actually turned an apparent negative to a positive in favour of retaining the College.  They argue that if the United States were to adopt national direct election that if an election were close that a national recount would be necessary rather than just a state-wide tallying of votes.  Such a procedure would be time consuming and extremely costly.

Limits Election Fraud.

It is further argued by supporters of the Electoral College that should  the  College be abolished in favour of direct  election that this would increase the likelihood of fraud.  The argument asserts that whilst at present the College states the value of any particular states votes no matter what the turnout, there is no incentive for governing parties in one party states to fraudulently create inflated voting figures as it will have no effect on the overall result. This may be true but in such states as the winner of that states electoral votes can easily be predicted before the election day the system actually disenfranchises supporters of the opposition and would thus restrict participation.

These main arguments in favour of the retention of the Electoral College are well summarised  by John C. Eastman:

“The Electoral College does more than just serve as check on tyrannical majority power.  It helps channel the popular vote into a constitutional rather than just a numerical, majority, ensuring that the successful candidate has a level of popular support that is dispersed both geographically and ideologically and that, as a result, the electoral winner will be able to govern.  The Electoral College also ensure that every region of the country, and indeed every State in every region, has a voice in the election of the President and therefore a part in the successful functioning of the national government.” ⁽¹⁷⁾

It can therefore be seen that there is a real academic, constitutional and political argument over the issue of the Electoral College.  Both sides in the debate have cogent arguments in support of their claims.  However, the debate need not and is not simply between those in favour of retention or abolition.  There is the possibility of reform.  In the next chapter I will assess the current proposals for reforming the electoral process, both abolitionist and reforming.

Notes

1. 343 US 214 (1952)
2. Ibid at 232
3. U.S. Electoral College Webzine.
4. www.avagara.com/e_c/ec_unfaithful.htm
5. CRS REPORT for CONGRESS RL 30804 p9
6. 343 US 214 (1952)
7. Baker v Carr 369 US 186 (1962)
8. 377 US 533 (1964)
9. Ibid at p567.
10. Hoffman, Matthew M.  The Illegitimate President:  Minority Vote dilution and the Electoral College.  Yale Law Journal Jan 1996 105 n4 p935
11. Williams, V.  MacDonald, Alison M.  Rethinking article II, Section 1 and its Twelfth Amendment Restatement:  Challenging Our Nations Malapportioned, Undemocratic Presidential Election Systems. Marquette Law Review Winter 1994 Vol 77 n2 p201 at p249.
12. www.fairvote.org/turnout/intturnout.htm
13. 343 US 214 (1952) at 234
14. Samples, John.  “In Defense of the Electoral College.”  November 10, 2000 available at www.cato.org/dailys/11-10-00html
15. Eastman, John C.  “In Defense of the Electoral College”  Claremont Institute Center For Constitutional Jurisprudence available at www.claremont.org/publications/eastman001120.cfm
16. Electoral College Webzine, www.avagara.com/e_c/ec_directdanger.htm
17. Eastman, John C.  “ In Defense of the Electoral College”  Available at www.claremont.org/publications/eastman001120.cfm

United States Electoral College

• INTRODUCTION
• CHAPTER 1. ORIGINS & HISTORY OF THE ELECTORAL COLLEGE
• CHAPTER 2. NOT A PERFECT SYSTEM – THE PROS & CONS OF THE ELECTORAL COLLEGE
• CHAPTER 3. PROPOSALS FOR REFORM
• CHAPTER 4. THE GRASS IS ALWAYS GREENER?
• CONCLUSION

In the second part of Dan Heaton’s thesis discussing the United States Electoral College, he looks at the Origins & History of the Electoral College.

CHAPTER 1. ORIGINS & HISTORY OF THE ELECTORAL COLLEGE.

The Presidential Electoral College system is not laid down in any federal statute but is enshrined within the Constitution of the United States of America of 1787.  Article II of the Constitution as modified by the 12^th Amendment has been in existence as long as the United States itself, and thus in order to examine the origins of the Electoral College it is essential to study how the Constitution of 1787 came into being in the form that it did.

The Road to Philadelphia.

July 4^th 1776 saw the Continental Congress issue the Declaration of Independence.  The ensuing war evoked nationalist sentiments in American political thought, however, during this period many of the colonies enacted their own constitutions and in effect became states in their own right, with their own governments and thus their own interests to protect.  Thus when the great and the good discussed the enacting of the Articles of Confederation the opposing viewpoints of nationalism and localism met head on.  In the end the small states with their local interests won the battle as James Wilson a Congressman at the time stated later when addressing the Constitutional Convention in 1787:

“Among the first sentiments expressed in the first Congress, one was that Virginia is no more that Massachusetts is no more that Pennsylvania is no more and Connecticut.  We are now one nation of brethren.  We must bury all local interests and distinctions.  This language continued for some time.  The tables at length began to turn.  No sooner were the State Governments formed than their jealousy and ambition began to display themselves.  Each endevoured to cut a slice from the  common loaf; to add to its own morsel, till at length the Confederation became frittered down to the impotent condition in which it now stands.  Review the progress of the Articles of Confederation through Congress and compare the first and last draught of it.” ⁽¹⁾

Once the watered down Articles of Confederation had been approved by Congress in 1777 the states had all the rights. The larger states who had previously wanted a strong national Government  became more localist in outlook.  They had no interest in moving power to the centre as the new Congress was based upon the equal rights of states and could thus be controlled by the smaller less populous states therefore any national power would be of no use to the larger states.

Essentially, in terms of internal affairs, the states acted totally in their own interests and against any notion of the common good, threatening the very existence of the fledgling union itself, Leonard W Levy sums up the situation thus:

“Congress, representing the United States, authorized the creation of the states and ended up, as it had begun, as their creature.  It possessed expressly delegated powers with no means of enforcing them.  That Congress lacked commerce and tax powers was a serious deficiency, but not nearly as crippling as its lack of sanctions and the failure of the states to abide by the Articles.  Congress simply could not make anyone, except soldiers, do anything.  It acted on the states, not on people.  Only a national government that could execute its laws independently of the states could have survived.  The states flouted their constitutional obligations.  The Articles obliged the states to “abide by the determinations of the United States, in Congress assembled,” but there was no way to force the states to comply.” ⁽²⁾

The problems encountered by the Confederation led in September 1786 to a convention in Annapolis, Maryland at which representatives from Virginia, Delaware, Pennsylvania, New Jersey and New York agreed that a Constitutional Convention made up of delegates from all the states should meet in Philadelphia in May 1787: “…to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union, and to report such an act for that purpose to the United States in Congress assembled….” ⁽³⁾

Thus delegates from the former colonies met in Philadelphia on may 25^th 1787 in order to revise the Articles of Confederation and fashion the Constitution of The United States.  Against this backdrop the delegates set about the creation of an independent and permanent executive, the position of President of the United States and a system for appointment to what is now the most powerful political position in the world.

“it was suggested that the states should decide who should be President.  However, following the blatant flouting of the Articles of Confederation and the overtly localist tendencies of some of the states, it was feared that this system would allow the President to become the lackey of the states”

The Convention.

In Philadelphia the founding fathers met to revise the constitution, they agreed that there should be a president, but they were undecided as to how this most illustrious position should be filled?  The Presidency could not be hereditary as this went totally against the republican form of government envisaged and the anti-monarchist post War of Independence feeling.

There were three main proposals for the appointment procedure.  Firstly, it was mooted that Congress should elect the President whether from amongst its own numbers or from elsewhere. This proposal was attacked as it might lead to corruption with the President being beholden to the Congressmen.  It was also felt that such a system would cause division in Congress over the selection and that this would be bad for the Union and that such infighting may lead to corruption or political payoffs in order to obtain votes.  Just as important at this time though was that such a system allowing Congress to appoint the executive would be an affront to the doctrine of the separation of powers and would have disturbed the balance between the executive and legislative branches of the Government.  Thus this suggestion was rejected by the convention.

Secondly, it was suggested that the states should decide who should be President.  However, following the blatant flouting of the Articles of Confederation and the overtly localist tendencies of some of the states, it was feared that this system would allow the President to become the lackey of the states and that this would dilute the newly created federation leaving it as impotent as the previous confederation.

The third of the main proposals was that the President should be directly elected by the people of the Union, or at least all those men entitled to vote.  However, at the time due to the sheer size of the country and the state of technology during that period it would have been difficult to launch a national campaign accessible to all the people.  It was also feared that to do so would favour the most populous states and thus little time would be given by the President to the needs of the people in the smaller less populous states.  Given the environment of localism at the time it was also feared that each state would simply vote for their own man the so called “favourite son”, and thus the new head of state would in fact have very little national support at a time when the delegates were looking to create a feeling of a nation rather than fostering allegiance to individual states which could lead to the break up of the Union.

There thus came the great compromise known today as the Electoral College.  The College was a compromise between state power and federal authority, between small and large states and according to Victor Williams and Alison M MacDonald ⁽⁴⁾ a compromise between the northern states and the southern slave owning states. 

The Original Design of the Electoral College.

The system laid down Article II of the document which became the Constitution of the United States of America is as follows:

“…Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not be an Inhabitant of the same State with themselves.  And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the President of the Senate.  The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the votes shall then be counted.  The person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed: and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives  shall immediately chuse by Ballot one of them for President: and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President.  But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the Senates shall be necessary to a Choice.  In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice-President.  But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.”

There are thus three parts to the process; the selection of electors, the process by which electors vote and the contingency election used in situations where no candidate achieves a majority.

Each state is entitled to a number of electors equal to their representation in Congress, Thus, no matter what their population, they are guaranteed at least three electoral votes, two for the two Senators that each state is entitled to under Article I Section 3 of the Constitution and at least one for the one member of the House of Representatives which each state has guaranteed under Article I Section 2.  Thus small states gained a proportionally greater representation in the election of the President.  Victor Williams and Alison M MacDonald have gone further and assert that the smaller states at this time tended to be the southern slave owning states and that despite their low voting populations for the House of Representatives they benefitted  from Article I Section 2 which details how a states representation in congress is to be assessed.  Article I Section 2 states that in this calculation “three fifths of all other persons” are to be counted.  Thus slaves who had no right to vote could be counted as three fifths of a person thus giving the southern slave owning states a larger proportion of Congressmen than states which only counted free men.  With a larger representation in Congress went a larger representation in the Electoral College.

The actual process for choosing electors was left open to the individual state legislatures to decide upon.  This was again a compromise between state and federal power.  The only prohibition placed on electors was that they could not be Members of Congress or employees of the United States.  This was to ensure that the choice of President as the executive branch of government was kept separate from the legislature, and was enacted so as to embody the doctrine of the separation of powers.

Once selected the electors would meet in their own states in order to make corruption more difficult due to the vast geography of the country.  The electors would then cast two votes for people they thought fit to be President.  In order that the “favourite son” scenario could be avoided, it was enshrined that at least one of the votes cast had to be for someone from another state.

When the voting was completed the votes were sent to Congress were the President of the Senate (a position actually held by the incumbent Vice-President) would declare the results.  If one person had a majority of the votes then that person is declared President and the runner up became Vice-President.  However, if there was a tie, or if no candidate obtained a majority of the electoral votes then the House of Representatives was to select the President from those with the top five number of votes.  This was to be done by the state representation voting as a state not as individual representatives, thus even in the contingency election the smaller states benefit as they become equal to the more populous states each receiving one vote each.  Once a President is selected the candidate with the highest number of Electoral College votes would be declared Vice-President, however, should there be a tie then the Senate would vote for the Vice-President.

Alexander Hamilton, writing in the Federalist said of the system: “…[T]hat if the manner of it be not perfect, it is at least excellent.  It unites in an eminent degree all the advantages the Union of which was to be wished for.” ⁽⁵⁾

Hamilton particularly praised the use of the office of Elector:

“No Senator, representative, or other person holding a place of trust or profit under the United States, can be of the number of the electors.  Thus, without corrupting the body of the people, the immediate agents in the election will at least enter upon their task, free from any sinister bias.  Their transient existence, and their detached situation, already noticed, afford a satisfactory prospect of their continuing so, to the conclusion of it.  The business of corruption, when it is to embrace so considerable a number of men, requires time, as well as means, nor would it be found easy suddenly to embark them dispersed, as they would be over thirteen states,….” ⁽⁶⁾

Hamilton also believed that the system would find superior and unifying Presidents rather than merely the favourite son of a populous state:

“This process of election affords a moral certainty that the office of president will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.  Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honours, of a single state; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole union, or of so considerable a portion of it, as would be necessary to make him a successful candidate for the distinguished office of President of the United States.” ⁽⁷⁾

It was with these persuasive writings from Hamilton, James Madison and John Jay writing under the pseudonym Pubilus in articles collectively known as the Federalist that the argument was waged over ratification of the document drafted at the Philadelphia Convention.  The federalists won the day and the Constitution of the United States of America, including the presidential electoral system that has become known as the Electoral College was ratified by the required nine states by June 1788.

“The practice of electors casting two votes for presidential candidates became seen as redundant because the rise of political parties had created what we now know as Presidential and Vice Presidential running mates”

The Early Years of the Constitution.

The early years of the new union saw the rise of political parties.  This meant that electors of a given persuasion were likely to give their two electoral votes to like minded individuals thus the likelihood of a tie increased dramatically.  This in fact occurred in the 1800 election when electors for the Democratic-Republican party [not the current Republican Party] awarded their votes equally to Aaron Burr and Thomas Jefferson.  The decision on who should be President was thus placed in the hands of the House of Representatives, who eventually decided in favour of Thomas Jefferson.

The practice of electors casting two votes for presidential candidates became seen as redundant because the rise of political parties had created what we now know as Presidential and Vice Presidential running mates.  The political parties had also started to breakdown the boundaries between state orientated candidates a nd were creating a greater national forum.  The election of 1800 was a watershed for the Electoral College.  It was its fourth Presidential election and it was to be its last in its present form.  The fact that parties had become so prominent in United States politics and that there had been all kinds of political dealings in the House of Representatives in order to get Jefferson elected, including some thirty-six ballots, created the environment from which the 12^th Amendment was proposed and ratified.

The 12^th Amendment ratified in 1804 stated:

“”The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves, they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each,….  The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.  But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice….The person having the greatest number of votes as Vice-President, shall be Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for this purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice….”

The 12^th Amendment implicitly recognises the prominence of political parties through its requirement that electors vote for separate candidates specifically for the posts of President and Vice President as this facilitates “running mates” to exist and avoids the confusion amongst electors which resulted in the tied election of 1800. 

The Amendment also affected the Contingent Election process for the two posts.  The procedure by which the House of Representatives selects the President was altered, so that should no candidate receive a majority of the electoral vote the  House would now select the President only from those with the three largest number of electoral votes rather than the top five candidates.  The Senate was also given the power to select the Vice-President, in cases were no majority of electoral votes exist for that post.  They could now select from the top two ranked candidates based on the electoral vote for that position.

Thus, whilst the College system had been altered significantly in the case of voting for separate Presidential and Vice Presidential candidates, the essential formula of votes being split amongst the various states in a somewhat disproportionate manner remained the same.  Despite the mood of change the powers that be decided not to overhaul the system and introduce direct election, even though the party system had eroded some of the state allegiances.  Tadahisa Kuroda asserts that Thomas Jefferson had previously been an advocate of abolishing the electors and replacing the system with direct election but that he now “chose the option that most advantaged his party, hurt his rivals and simplified the choices to be given to state legislatures.” ⁽⁸⁾

“In an attempt to guarantee a Whig Party President, the Whigs nominated three different candidates for separate parts of the country.  The Party hoped to use the local candidate’s popularity to obtain an Electoral College majority for the Party and then and only then decide which candidate should be President”

Turbulent Elections.

The elections of 1800 and 2000 are not the only controversial Presidential elections to occur in the history of the electoral college.  There have been numerous occasions when the result of an election has been disputed or unusual because of the nuances of the electoral system.

1824.

In 1824 the dominant Democratic-Republican Party had four candidates  in; William Crawford, Henry Clay, John Quincy Adams and Andrew Jackson.  Andrew Jackson won the electoral vote but was unable to win a majority.  The decision was thus passed to the House of Representatives, who under the rules laid down in the 12^th Amendment selected John Quincy Adams as President of the United States.  This decision was completely within the constitutional remit of the House but not surprisingly caused uproar with Andrew Jackson and his supporters who claimed that the House of Representatives had thwarted the popular will as he had obtained the largest share of the popular vote as well as coming top of the electoral college vote.  However, at the time of this election, of the twenty-four states of the Union six did not use popular ballots to appoint electors, with the choice of electors being left to the state legislature.  Such states including the populous New York along with South Carolina, Georgia, Vermont, Louisiana and Delaware.  New York had 36 electoral votes and South Carolina had 11 but neither of these states sought to know the will of their inhabitants.  Thus, the popular will of the people could not be assessed at the time.  The election by the contingent process was not unconstitutional but merely highlighted the shortcomings of several states selection policies and was a stepping stone in the democratisation of that process nationally.

1836.

In an attempt to guarantee a Whig Party President, the Whigs nominated three different candidates for separate parts of the country.  The Party hoped to use the local candidate’s popularity to obtain an Electoral College majority for the Party and then and only then decide which candidate should be President.  However, the plan backfired and the Democratic-Republican Martin Van Buren obtain an Electoral College majority.

1876.

In 1876 the United States was still recovering from the civil war and was entering an economic depression.  The country and indeed the political parties were divided over the post-war settlements and tariff policy.  This division could not have been better emphasised than in the electoral results of Florida (not for the last time!}, South Carolina and Louisiana.  The states were so divided that they all sent two conflicting sets of electoral votes, one set in favour of the Democrat Samuel J. Tilden, the Mayor of New York and one set in favour of the Republican candidate Rutherford B. Hayes, the Governor of Ohio.  In the circumstances Congress set-up an Electoral Commission to decide the outcome of the election in those states.  Not surprisingly the Republican Congress awarded the states to Rutherford B. Hayes and he became President.

Whilst most attention with regard to the 1876 election goes to the disputed  vote counts in the above states, it is interesting to note the role that Colorado had on the election.  The United States Electoral College Webzine makes an interesting point:

“There was also the situation in Colorado where Hayes won with 0 votes..  Colorado was admitted to the Union in August 1876.  The state legislature, to save money decided not hold a presidential election…. They simply appointed electors who voted for Hayes.  So what put Hayes over the top were 3 electors not by [sic] the public.  This was all perfectly constitutional, and did not figure in the controversy over disputed votes.

Was it a coincidence that Colorado was admitted to the Union right before the closest electoral vote in history?  Probably not.  Colorado was the only state admitted to the Union between 1867 and 1889.  The Republican Congress was unwilling to give up the patronage jobs in the territories.  So admitting a state to the Union was quite an extraordinary event.  Perhaps the expectation of three additional Republican electors was a motivating factor.” ⁽⁹⁾

1888.

In 1888 the incumbent President Grover Cleveland of the Democratic Party lost under the Electoral College to Republican Party candidate Benjamin Harrison despite winning the popular vote.  By now all states were using popular election to decide upon their electors so it really was a case of the winner of the popular vote losing the electoral vote.  According to the Electoral College Webzine ⁽¹⁰⁾ Grover Cleveland managed to lose the election by making tariff reform an issue.  This made him very popular in the south but lost him votes in the north, thus whilst he won large majorities of the popular vote in the south he lost narrowly in the northern states to Harrison.  The election of 1888 is a classic example of the Electoral College working in favour of a candidate with national support rather than one with large support but whose support is regional.  Thus, whilst the election result of 1888 has often been used in the past as an example of the flaws of the Electoral College by its opponents, it is also used by its supporters as a sign of the system working as the founding fathers envisaged.

The Electoral College Today.

Allocation of Electoral Vote.

The number of electors allocated to each state is equal to that states representation in Congress, thus it is equal to 2 Senators plus that states number of Representatives which must be at least 1 (Article I US Constitution) The number of electors allocated to each state varies with the changes in their apportionment of Representatives after every decennial census.  Whilst the original Constitution allocated each state at least 3 electors, the 23^rd Amendment ratified in 1961 awarded 3 electors to the District of Columbia.  There are therefore now electors from all 50 states of the Union and the seat of the United States Government.  However, American dependencies such as the U. S. Virgin Islands and American Samoa do not receive any electoral votes and so do not play any part in the election of the President.

The Electors.

The vital link between the people and the winning candidate are technically the electors.  They are usually loyal local party supporters or activists chosen because they can be trusted to cast their vote for their declared favourite candidate.  The process of formal nomination of electors varies from state to state, but they are usually nominated either by the local branch of a political party, by party convention or they are selected by the Presidential and Vice Presidential candidates themselves.  The only people prohibited from being electors are members of Congress and employees of the Federal Government. [Article II Section 1 US Constitution.]

Appointment of Electors.

Article II of the Constitution states that “Each State shall appoint, in such Manner as the Legislature may direct, a Number of Electors….”  The decision of how to select electors was therefore left to the state legislatures, therefore some legislatures appointed the electors themselves..  However, over the years the states moved towards popular statewide election by ballot.  Indeed, since 1836 only South Carolina maintained that policy and they moved to popular ballot following the civil war.  The date of appointment which now essentially means Presidential Election Day has now become uniform under federal law. The date for elections being the Tuesday after the first Monday in November in every Presidential Election year.  In some states the names actually appear on the ballot paper but in most cases the ballot papers simply read “Electors for…”

Allocation of Electoral Votes.

Article II Section 1 of the Constitution states that electors are appointed “…as Legislature thereof may direct…2 and the Supreme Court in the case of McPherson v Blacker (1892) [{1892} 146 US 1] deemed that this power extended to the allocation of electoral votes after any ballot.  Through time the system known as “The General Ticket” or “The Winner Takes All” system has developed whereby the candidate who finishes top of the statewide poll receives all of that states allocation of electors.  Thus, in Florida in 2000, after the final court ruling, the official result gave George W. Bush 2912790 votes compared to Al Gore’s 2912253, yet George W. Bush was awarded all of Florida’s Electoral College votes.  Therefore, with a difference in the Florida poll of just 0.01% George W. Bush was able to become President of the United States.  The winner takes all system is used in 48 of the 50 states and in the District of Columbia, however, the states of Maine and Nebraska use what is called the Congressional District method of allocating their electoral vote.  This system involves the allocating of the two electors representing the states Senatorial seats to the overall statewide winner, but then allocating the remainder of the electoral votes to the candidates who receive the most votes in the states Congressional Districts.  However, given that following the 2000 Census, in the 2004 and 2008 presidential elections, Maine will only have an allocation of 4 Electoral College votes and Nebraska will only have 5, the winner takes all system is by far the most dominant and is a much criticised facet of the modern Electoral College.

Meeting of Electors.

The electors now meet in their state capitals on the Monday following the second Wednesday in December to cat their votes for President and Vice-President.

Counting of the Electoral Votes.

The electoral votes are counted in front of a joint session of Congress on the January 6^th following the election, by the President of the Senate who then declares the winners or announces a contingent election.

The system was a controversial compromise at the time of its inception.  In the next chapter I examine the arguments against the College and those in favour of its retention. ⁽¹¹⁾

The founding fathers had to design a system which reflected the federal nature of the new nation and that federal nature still exists today.  However, the application of the winner takes all system and the problems with voting machines and counting procedures bring  the system into disrepute.  Nonetheless the actual Electoral College is a compromise which for the most part has worked well.  In the words of Alexander Hamilton:

“[T]hat if the manner of it be not perfect, it is at least excellent.” ⁽¹²⁾

Notes

1. Farrand, Max editor.  Records 1 166-67,  The Framing of the Constitution, 1913, New Haven Conn.  In Levy, Leonard W.  Essays on the Making of the Constitution 2^nd edition, 1987 Oxford University Press, Oxford.
2. Levy, Leonard W.  Essays on the Making of the Constitution 2^nd edition, 1987, Oxford University Press at pXVII.
3. Beloff, Max. Editor.  The Federalist 2^nd edition, 1987, Basil Blackwell Ltd, Oxford at p463.
4. [1] Williams V,  MacDonald A,  Rethinking Article II Section 1 & Its Twelfth amendment Restatement: Challenging Our Nations Malapportioned, Undemocratic Presidential Election System, Marquette Law Review, Winter 1994 Vol 77 n2 p201-264.
5. Beloff, Max editor.  The Federalist 2^nd Edition, 1987, Basil Blackwell Ltd, Oxford at p348
6. Ibid at p369
7. Ibid at p350.
8. Kuroda, Tadahisa.  The Origins of the Twelfth Amendment: The Electoral College in the Early Republic 1787-1804, Contributions in Political Science, Number 344, Westport Conn, Greenwood Publishing 1984 xii 235 as reviewed by Onuf, Peter S, of The University of Virginia Journal of Legal History April 1995 39 n2 p277-278.
9. www.avagara.com/e_c/ec_1876.htm.
10. www.avagara.com/e_c/ec_1888.htm.
11. Farrand, Max editor.  Records 1 166-67,  The Framing of the Constitution, 1913, New Haven Conn.  In Levy, Leonard W.  Essays on the Making of the Constitution 2^nd edition, 1987 Oxford University Press, Oxford.
12. Federalist no 64.  See Beloff,  Max editor.  The Federalist 2^nd edition. 1987, Basil Blackwell Ltd, Oxford.

United States Electoral College

• INTRODUCTION
• CHAPTER 1. ORIGINS & HISTORY OF THE ELECTORAL COLLEGE
• CHAPTER 2. NOT A PERFECT SYSTEM – THE PROS & CONS OF THE ELECTORAL COLLEGE
• CHAPTER 3. PROPOSALS FOR REFORM
• CHAPTER 4. THE GRASS IS ALWAYS GREENER?
• CONCLUSION

In 2001 Dan Heaton wrote a thesis discussing that “Following the recent debacle of the United States Presidential Election, has the time come to abolish the Electoral College in favour of a more representative system of electing the most powerful leader in the world, and can other nations be so complacent about their systems of electing their leaders?”

Over several parts, with the Presidential Inauguration upon us and following the challenges of the 2020 election, now is a great opportunity to review these arguments.

INTRODUCTION

The United States is now the only true world superpower and has long been considered a beacon of freedom and democracy for the whole world.  It has a much lauded constitution with the doctrine of the separation of powers, a separation of church and state and civil liberties enshrined within that most beguiled of documents.

However, the recent election which saw George W. Bush as President and Commander in Chief has raised long felt concerns among many as to the truly democratic nature of the electoral process used to choose the Head of State of this most powerful of nations.

As the evening news was broadcast across the nation, the television networks declared that Vice President Al Gore had won the election.  Then as the night went on and results started to come in from across the nation the networks were forced to retract their prediction and announced that George W. Bush was going to be victorious.

However, the election remained exceptionally close across the country and it soon became clear that Florida had become the key state, with the victor there almost certain to win the keys to the White House.

“before Gore had made his public address before his supporters, as is traditional when making a formal concession, he was informed by his aides that Florida looks a lot closer and so remarkably he phoned Governor Bush again and retracted his previous concession”

With the networks having called the election for Governor Bush in the belief that he had won Florida, Vice President Gore phoned George W. Bush and conceded defeat.  However, before Gore had made his public address before his supporters, as is traditional when making a formal concession, he was informed by his aides that Florida looks a lot closer and so remarkably he phoned Governor Bush again and retracted his previous concession.

There then followed over a month of political and legal battles over the validity of ballots.  From the design of the “butterfly ballot” with the names of candidates either side of punch holes to the great “chad” debate, which raged over whether a punch hole had been properly perforated.

Legal hearings took place in district, state federal and finally the United States Supreme Court over the validity of counts and whether re-counts and hand re-counts should take place.   There were “stop the count” and “let them count” demonstrations both in Florida, Washington and elsewhere.

Eventually Vice President Al Gore conceded defeat on September 13^th 2000, thirty-six days after the election took place, and George W. Bush the Governor of Texas became President-elect of the Union.

Meanwhile, the world had watched the scenes with a sense of confusion, disbelief and self-satisfaction that nothing like that would happen here! 

The reason why Florida’s result was of such importance is because of the Electoral College system used to elect the President.  The term Electoral College is a phrase used every four years when Presidential elections occur but understood by few, even in America.  The full implications of its effect did not become clear and as controversial until the recent election.    The system involves the states nominating electors to decide who will be the President of the Union, each state being entitled to a number of electors equal to their representation in Congress.  The system used in almost every state, results in the winner of each state receiving all of that state’s Electoral College vote.  It is thus possible for the overall popular vote winner to lose by means of the Electoral College.  This democratic anomaly has occurred twice before and appears to have happened in the election of 2000.  Recent events have brought the procedure and American democracy into question, to such an extent that one English commentator has argued that:

“The U.S. Constitution is killing democracy….  The procedures for selecting a President set down more than 200 years ago to suit a set of small states, populated by yeoman puritans, hugging the eastern seaboard of a continent, remain virtually unaltered as the method by which the single military, economic, political and cultural superpower on the planet reaches decisions of fundamental importance.  This will not do, change must come and the totally surreal developments that have now been witnessed across the world this week should be the catalyst.” ⁽¹⁾

“The United States Presidential Electoral College is therefore of current legal, constitutional and political significance”

The United States Presidential Electoral College is therefore of current legal, constitutional and political significance.  Numerous arguments have been put forward in favour of abolition of the Electoral College and its reform, whilst defenders of the process have also been quick to come to its defence, and there have been several proposals for reform placed before the House of Representatives in the new session of Congress.

In this work I intend to assess the Electoral College and look at possible alternatives that are available in other Western countries.  I will use the following format:

Chapter 1 – I explore the origins of the Electoral College and its workings in the early years of the Union.  I also look at its use in elections throughout history and its workings today.

Chapter 2 – In this  Chapter I assess the disadvantages of the system as asserted by its opponents along with its advantages as purported by its supporters.

Chapter 3 – I use this chapter to examine and analyse the reform proposals currently before the 107^th Congress.

Chapter 4 – In this chapter I explore the systems used for selecting the Heads of State of three Western European countries and compare them to the American system.

Conclusion – In this chapter I assess other reasons for concern over the American electoral  system and compare the Electoral College to the system used to elect the Government of the United Kingdom.  Finally I assess the need for and the likelihood of reform.

Notes

1. Haines, Tim.  The Times November 9^th 2000 p18

United States Electoral College

• INTRODUCTION
• CHAPTER 1. ORIGINS & HISTORY OF THE ELECTORAL COLLEGE
• CHAPTER 2. NOT A PERFECT SYSTEM – THE PROS & CONS OF THE ELECTORAL COLLEGE
• CHAPTER 3. PROPOSALS FOR REFORM
• CHAPTER 4. THE GRASS IS ALWAYS GREENER?
• CONCLUSION