In a recent article in The New York Times, Nate Cohn pointed
out the plausibility of President Trump’s reelection with an even bigger
popular vote deficit than he had in 2016. [1]
Now should that result obtain, we can predict the reactions. Those who vote for
the Democratic candidate will complain that democracy has been thwarted by an
outmoded system that should be done away with. Trump supporters will say that
the system has worked as designed by the Founding Fathers.
Now it is certain that
the Framers of the Constitution did not intend that presidents be directly
elected by the people. That doesn’t answer the question of whether they should
be, since we shouldn’t treat the Constitution as if it was unalterable holy
writ. That’s why there is an amendment process written right into it. But in
looking at the question, we shouldn’t deceive ourselves into thinking that the
Electoral College system, as it works today, operates in the manner that the
Founders intended. It does not, and we can see that by simply reading the
Constitution.
The original idea was
that each state would appoint, in a manner to be determined by its legislature,
a number of electors equal to the total of its representation in the Senate and
the House of Representatives. [2]
[3]
There wasn’t (and isn’t) even a requirement that the electors would be chosen
by popular vote, and many states, for many years, had them chosen directly by
their legislatures.
In Federalist No. 68 [4],
Alexander Hamilton, writing in support of the Electoral College as originally
conceived, said that it “was desirable that the sense of the people should
operate in the choice of the person to whom so important a trust was to be
confided,” and that this end would “be answered by committing the right of
making it, not to any preestablished body, but to men chosen by the people for
the special purpose, and at the particular conjuncture.”
It’s clear that Hamilton
conceived that the voters would select, not the candidates, but the electors
themselves. And there was no thought that the electors would be pledged to vote
for a particular candidate, or the nominee of any particular party.
But if the
sense of the people was to be operative, why not a popular vote? Because it
“was equally desirable, that the immediate election should be made by men most
capable of analyzing the qualities adapted to the station, and acting under circumstances
favorable to deliberation, and to a judicious combination of all the reasons
and inducements which were proper to govern their choice. A small number of
persons, selected by their fellow-citizens from the general mass, will be most
likely to possess the information and discernment requisite to such complicated
investigations.”
Note that Hamilton
anticipated that the electors were to deliberate and use judgment. They were to
make their decision based on information and discernment. The concept clearly
was that the citizens would choose electors that they trusted to make what
ought to be a thorough investigation. This could not then, and cannot now, be
done adequately by those who cannot devote full time to the inquiry.
Not only that, but:
“It was also peculiarly
desirable to afford as little opportunity as possible to tumult and disorder.
This evil was not least to be dreaded in the election of a magistrate, who was
to have so important an agency in the administration of the government as the President
of the United States. But the precautions which have been so happily concerted
in the system under consideration, promise an effectual security against this
mischief. The choice of SEVERAL, to form an intermediate body of electors, will
be much less apt to convulse the community with any extraordinary or violent
movements, than the choice of ONE who was himself to be the final object of the
public wishes. And as the electors, chosen in each State, are to assemble and
vote in the State in which they are chosen, this detached and divided situation
will expose them much less to heats and ferments, which might be communicated
from them to the people, than if they were all to be convened at one time, in
one place.”
We see in our own time
how divisive presidential elections can be. And it has to be admitted that
people don’t always make their decisions on rational or even factual grounds.
Yet the vote of an ill-informed citizen counts the same as the vote of one who
has been able to educate himself on the matter. Biased journalism, or outright
fake news, don’t help matters. Moreover, our presidential campaigns have become
spectacles, full of bromides, slogans, and even juvenile put-downs. In the last
presidential election, one primary candidate went so far as to insinuate
something about the dimensions of his opponent’s penis based on his hand size.
And the opponent felt the need to defend himself!
This is no way to pick a
president. And Alexander Hamilton and the other Framers foresaw that an
intermediate body of electors would be needed to prevent such travesties. And
it would likely work well if we could return to that method today.
But we can’t. We can’t
because political parties have taken over the whole system. Even if we tried to
return to the Electoral College as originally intended, the likely outcome
would be that the electors would be party apparatchiks running under the
banners of their respective parties.
Something should be done,
however, because we have strayed far from the original intention, and the
present method of a candidate capturing the entirety of a state’s electoral
votes because he has won a plurality—not even a majority, but a plurality—which
prevails in all but two states has nothing to defend it except the delusion
that it was the system conceived by the constitutional Framers. “The shift to
statewide winner-take-all was not done for idealistic reasons. Rather, it was
the product of partisan pragmatism, as state leaders wanted to maximize support
for their preferred candidate. Once some states made this calculation, others
had to follow, to avoid hurting their side.” [5]
Should we switch to a
popular vote? That’s an idea that has a lot of proponents nowadays, and state
boundaries aren’t the indicators of interest that they once were. Farmers will
have more in common with other farmers across the country than others that happen
to reside within the same state; and the same goes for such interests as
business people, factory workers, and members of minority groups. And the
principle of one person-one vote would at last be applicable to presidential
elections.
Still, perhaps, we should
not be completely dismissive of those who fear that presidents would be
selected by residents of the more populous states, casting aside the concerns
of people living in the heartlands. The Electoral College does have the
advantage of compelling presidential candidates to focus their attention to
places outside of California, New York, and Texas. So perhaps a compromise
could be obtained. Here is a suggestion:
The first thing to do
would be to dispense with the rubber-stamp electors, and award electoral votes
instead. The electors serve virtually no purpose anymore, and there is no
reason that electoral votes can’t be simply awarded without their intervention.
Each state would have the same number of electoral votes that it would have of
electors.
Secondly, electoral votes
in each state would be awarded proportionately, according to the percentage of
votes received. Some might be concerned that percentages won’t be exact in
relation to the electoral votes, but this could be solved by the use of the
arithmetical rules for rounding.
Third, considering that
the number of each state’s electoral votes are equal to the total number of
senators and representatives it has in Congress, there could be a provision
that any candidate receiving more than 50 percent of a state’s popular vote
would receive two electoral votes to represent the state’s Senate
representation, with the rest being allocated according to percentage.
This method should
satisfy any legitimate concerns about going to a straight popular vote, and
would be superior to awarding electors in gerrymandered districts. At the same
time, it would do away with much of the absurdity of the current system where a
candidate can take all of a state’s electors by winning a plurality, even a
very slight plurality, of the state’s popular vote.