Federalist No. 68, et al, Part IV: Cracks and Corruptions

As last week’s discussion hopefully made clear, the Electoral College that the Framers of the United States Constitution designed in 1787 bears only a superficial resemblance to the Electoral College as it exists today. In the modern era, the function that the Electors fulfill involves little more than a formal ratification of the results of the preceding general election – states award their votes in a winner-take-all fashion, and individual members of the Electoral College are bound by law and custom to vote accordingly. Deliberation, therefore, hardly enters into the process. The President of the United States is chosen by the voters on Election Day in November, and the Electors merely act as a kind of rubber stamp upon convening in December. By comparison, the Electoral College that Alexander Hamilton and his cohorts originally designed was intended to be an active participant in the process of selecting the nation’s chief executive. Once chosen by the people of the various states, the Electors were to meet in their respective capitals and deliberate upon which of the candidates for the highest office in the land appeared to them most qualified. How they ultimately voted was to be left entirely to the discretion of the individual Electors and it would not be until Congress gathered and tallied the submitted votes that a victor could be declared.

While the basic framework that the Framers designed remains largely intact – the Electors are still chosen by the people, they still convene in their respective state capitals, and a successful candidate for President still requires a majority of their total votes – the essence of their role has been almost completely altered. From having complete discretion, they now seem to have none at all. Intended to serve as an essential intermediate step between the American people and their chief executive, the Electoral College presently retains all the significance of an empty ceremony whose practitioners have long since forgotten its purpose. The presence of such a complex appendage of government which seems to fulfill no useful function understandably raises a number of questions. Why does the Electoral College continue to exist? If the outcome of the Elector’s single task is a foregone conclusion, why not just award Electoral Votes directly on Election Day and be done with it? These are both valid inquiries, and met by any number of answers depending on one’s ideological proclivities. Rather than delve into what should happen, however, let us concern ourselves for the moment with what has happened. To that end, let us try instead to answer the question of how the Electoral College was transformed from the system that Alexander Hamilton described in Federalist No. 68 to the one which presently governs the quadrennial election of the President of the United States.

Generally speaking, the metamorphosis of the Electoral College from that which the Framers intended to that which exists today can be chalked up to a flaw inherent in the system at its origin and a mistaken assumption on the part of its creators. The former will be dealt with first, and is comprised of a vital omission on the part of the Framers. Rather than include any specific regulations within the text of the Constitution that would define precisely how the members of the Electoral College were to be selected, its designers left the manner of their appointment completely to the discretion of the various state governments. This meant, in practice, that individual states can decide for themselves whether their citizens chose Electors based on a set of pre-defined districts – as they do during elections for the House of Representatives – or on a state-wide basis, or even through the medium of the state legislatures – i.e. the voters choose state representatives who then appoint that state’s Electors. Without knowing precisely what motivated the architects of the Electoral College to allow for such diverse methods of selection, it can at least be said with some degree of certainty that the consequences of this decision have been, for better or worse, quite considerable.

  The presence of George Washington as the nation’s first President undeniably served as a steadying influence upon the increasingly partisan atmosphere of American political culture in the 1790s. His election victories in 1789 and 1792 were unanimous, and his cabinet included prominent members of several conflicting intellectual circles. In truth, however, his influence only masked the weaknesses inherent in certain aspects of government under the Constitution. Specifically, it was the inability of key institutions to function as intended in the face of partisan politics – stemming from the Framer’s horror of factionalism and their attendant refusal to plan for its continued presence – which Washington’s status as a nationally beloved figure rendered essentially moot. That is, until his refusal to stand for election in 1796 essentially made possible the nation’s first competitive presidential election. Without the great hero of the Revolution serving to unite the various conflicting factions and interests, the process by which the American people selected their chief executive – a process which up to that point hadn’t done much more than confirm the near-universal popularity of George Washington – would finally and truly be put through its paces. Thus began the erosion of the Electoral College that the Framers envisioned.

  The reason that the sudden loss of a nationally unifying figure augured poorly for the Electoral College in 1796 had everything to do with the aforementioned inability of the processes designed by the Framers to weather the pressures of organized partisanship. When tasked with giving official sanction to the tremendous regard American felt for the former Commander-in-Chief of the Continental Army, it made little difference that the states were wholly responsible for determining how their Electors were to be chosen. Whether they settled upon the statewide winner-take-all method (Pennsylvania and Maryland), allocated them by district (Virginia and Delaware), or allowed their legislatures to make the appointments (Connecticut, New Jersey, Georgia, and South Carolina), there was no competition in 1789 or 1792, and no difference in outcome. Once the Electors were actually required to make a choice, however, the differences between the states’ methods of selection – previously little more than an aesthetic distinction – took on a highly strategic dimension. The rhetoric and results of the Election of 1796 and the Election of 1800 both served to contribute to the emergence of this increasingly tactical facet of American politics, both in terms of institutional structures and recognized norms.

While the very idea of political parties continued to rankle those among the Founding Generation, whose political ideals were rooted in concepts of self-sacrifice, impartiality, and noblesse oblige – i.e. that those with talent and wealth had an obligation to serve their community – the successive outcomes of presidential votes in 1796 and 1800 generated enough displeasure to begin shaping a vital consensus in favor of permanent factionalism. This acute displeasured stemmed in large part from the fact that the method by which the Electoral College functioned was designed to operate within a distinctly non-partisan political context. By the terms of the Constitution, as ratified and adopted in 1788, the successful candidate for President was he who managed to amass a majority of the total number of Electoral Votes. The Vice Presidency, meanwhile, was awarded to whoever garnered the second-highest number of votes. In a scenario wherein every candidate for President was an independent, non-partisan political actor, this would seem a reasonable enough outcome. After all, why shouldn’t the person positioned to step into the role of chief executive at a moment’s notice be the person for whom the next largest percentage of the population voted? Well, the obvious answer to that question would seem to be, because the first place finisher and the runner up might not always be in complete agreement. Indeed, they might even be violently opposed – a consequence either of deep-seated philosophical differences or the virulence of campaign rhetoric. If, under these circumstances, the President fell ill and died, the office would then legally pass to someone whose policies and intentions ran wholly counter to those professed by the individual that the majority of Americans had chosen.  

Almost exactly this scenario came to pass in 1796. The Electoral College produced a victory for sitting-Vice President John Adams (a leader of the nascent Federalist Party) and gave the Vice Presidency to former-Secretary of State Thomas Jefferson (one of the guiding lights of the emerging Republican Party). Because the ideologies professed and promoted by these two men were seen to be categorically opposed in certain key policy areas – centralized vs. decentralized government, an economy based on manufacturing vs. agriculture, etc. – the closeness of the vote (seventy-one to sixty-eight for Adams) and the prospect of Jefferson inheriting the office in the event of Adams’ sudden demise produced a heightening of partisan tensions on both sides. The states were certainly not spared the effects of this notable increase in factional discord. Many of them were already possessed of highly factional political cultures – centered on familial associations or regional economic issues – and the cliques and associations therein had quite easily become integrated into the emerging national party system. It also bears remembering that these same increasingly partisan state governments were responsible for setting the terms by which presidential Electors were selected. In consequence, not only were the states an increasingly vital and vibrant part of the nascent partisan status quo in late 1790s America, but they were also far from disinterested in the electoral results that their own legislative choices had produced.

1796, therefore, doubtless served as something of a warning. In order to ensure that a similar outcome wasn’t repeated in 1800, state and national party organizations determined to better coordinate their efforts at setting the ideal conditions for their chosen candidate’s success. Whereas the method of selection for presidential Electors had formerly mattered little to the final outcome, the difference between statewide winner-take-all and voting by district now had the potential to swing an election one way or another. Federalists and Republicans in states from Georgia to Massachusetts consequently began to compete for control of their respective state assemblies with the knowledge that the victor would either gain the ability to alter the laws that governed the appointment of Electors or would be given the opportunity to choose them directly. The New York legislative elections of May, 1800 are a prime example of precisely this kind of high-stakes and highly divisive party competition. Knowing full well that whichever party secured a majority in the state assembly would get to nominate the full slate of Electors in the approaching presidential vote, the local Republicans (led by Aaron Burr) and Federalists (led by Alexander Hamilton) campaigned vigorously – and sometimes viciously – for that mutually coveted prize. The Republicans in particular – at that time a minority in the state legislature – employed a host of innovative vote-getting techniques, from street-corner rallies to door-to-door solicitations, and organized poll-watchers and free transportation for prospective voters when the day of the elections finally arrived.

The result, much to the Federalists’ dismay, was a triumph for their opponents – one which effectively guaranteed a second Republican victory when it came time for the state to appoint its twelve presidential Electors. So distraught were Hamilton and his partisans, and so disastrous appeared the prospect of a victory for Vice-President Jefferson in the general election, that they reacted by appealing to Governor of New York John Jay to aide his fellow Federalists in essentially overthrowing the results. Specifically, Hamilton requested that Jay convene a special session of the outgoing state assembly for the purpose of altering the laws that governed the appointment of Electors. Because this change was to affect the coming general election, it would have robbed the incoming Republican majority of the privilege they and their opponents had each campaigned to possess. Jay, ever a sober and sensible man, declined to consider the request, and the Republican victory stood. In spite of the fact that his eleventh-hour politicking failed, however, Hamilton’s desperation, and the lengths gone to by both parties, stand in evidence of the shifting context in which the Electoral College functioned at the turn of the 19^th century.

Whereas the Framers of the Constitution had seemingly intended for the Electoral College to facilitate the elevation of the most capable, responsible, or trustworthy individual to the office of President, the actions of Hamilton, Burr, and their respective partisan followers in the lead-up to the Election of 1800 indicate that a small but extremely important shift in emphasis had begun to take place. No longer, it appeared, were the Electors expected to identify and vote for the best possible candidate as the nation’s next chief executive. Rather, and with growing official sanction, their purpose had become simply to vote for the individual that their party had already identified as the best possible candidate for President. The state laws that governed their selection largely helped to facilitate this end, and strong preferences began to emerge based on which model produced the ideal outcome. Statewide winner-take-all and appointment by legislature were by far the most popular, no doubt because both offered the best prospect for an individual party to wholly dominate their state’s Electoral College delegation. Election by district – that is, Electors being chosen by a popular vote within the congressional district they were to represent – was still held by some among the Founding Generation to be the ideal method even as late as 1800, perhaps because it was the closest to what the Framers had intended when they designed the system. Nevertheless, increasing partisan competition forced even the most overtly principled to bend to the prevailing wind.

Thomas Jefferson, who suffered and succeeded in turn by the actions of the Electoral College, summed up this bind when he wrote in a letter dated to January of 1800 that, “An election by districts would be best, if it could be general; but while 10 states choose either by their legislatures or by a general ticket, it is folly & worse than folly for the other 6 not to do it.” Here, from the mouth of the great ideologue of the American Revolution, is an admission of the strategic sense which he perceived in effectively contributing to the active erosion of the Framer’s original design. Granting that the Sage of Monticello was a far cannier politician than he preferred to appear, there remains something rather tragic in his evident willingness to lay aside what he believed was the best method in favor of that which produced what he understood to be the best outcome. It was this kind of decision making, writ large, which really created the modern Electoral College. State parties in control of state legislatures wrote and rewrote state laws with the aim of benefiting the candidates put forward by their national organizations. Standing on principle carried no tangible reward, and giving in to the ruthlessness of raw electoral math may well have been rewarded with control of the executive branch. Faced with such a choice, in an era of partisan conflict so intense that opponents frequently characterized one another as the harbinger of America’s downfall and destruction, the trend toward disempowering the Electoral College surely seemed all but inescapable.

In spite of these legislative machinations, all intended to ensure that the disaster that was the Election of 1796 never recurred, the Election of 1800 somehow proved more yet troubling than its predecessor. Once the sun finally set upon a campaign season characterized by extreme rancor, invective, and threats of insurrection, the votes were cast, and counted, and the results announced. While managing to avoid electing a President and Vice President of nearly opposite philosophical inclinations, the Electoral College instead succeeded in producing a tie vote. Jefferson, the Republican candidate for President, and the aforementioned Burr, nominated by the same party for the office of Vice President, each enjoyed the support of seventy-three Electors. As per the terms of the Constitution, the election was accordingly thrown to the outgoing House of Representatives. And as both chambers of Congress were at that time controlled by the Federalist Party, the task at hand proved to be a particularly unenviable one for the legislators involved. The Federalist Representatives serving in Congress, whose party had just lost the Presidency, the House, and the Senate, were legally bound to bestow the most powerful office in the whole of the United States upon one of two member of a rival party. There were no alternatives open to them, no grounds to call for a repeat election, and no escaping the fact that the growth of organized partisanship in the America republic had effectively overflowed the institutional limits of its electoral system.

Though the Federalists did ultimately see their way clear to electing Jefferson as the next President of the United States – after much hemming and hawing, conspiratorial murmurings, and another last-minute plea by Alexander Hamilton – the elevation of the Sage of Monticello to the office of chief executive was arguably only the short-term consequence of the Election of 1800. Of greater lasting significance – in terms of what it symbolized as well as its practical effects – was the passage of the Twelfth Amendment to the United States Constitution. Proposed by the Republican members of Congress in the winter of 1803, during their control of both chambers thereof, this document aimed to alter the manner by which the members of the Electoral College cast their votes for President and Vice President. Whereas, per the terms of Article II, Section 1 of the Constitution, the Electors had previously been tasked with submitting two undifferentiated votes – with the winner and runner-up becoming President and Vice President, respectively – the text of the projected amendment drew a clear distinction between a vote for the office of chief executive and a vote for their deputy. Henceforth, once the modification was formally adopted, members of the Electoral College would be required to submit one vote explicitly for the candidate they believed ought to be President, and one vote explicitly for the candidate they believed ought to be Vice President. These votes would be counted separately, and the winners declared separately.

This new system was undeniably tailor-made to work in accordance with the emerging political norms of the contemporary United States. While Article II, Section 1 had been designed with a non-partisan context in mind, the amendment offered by the Republicans in the final weeks of 1803 effectively embraced the existence of formal political parties. So long as the Federalists and Republicans continued, as they had since at least the 1790s, to offer pre-approved electoral “tickets” that packaged together their desired candidates for President and Vice-President, disasters like those witnessed in 1796 and 1800 could quite easily be avoided. Unlike in the case of the former year, Electors would have a mechanism at their disposal for electing their chosen party’s ticket without having to engage in any efforts at long-distance coordination –i.e. Electors in various states agreeing to cast votes for one candidate and withhold them from another. And compared to the incident of the latter year, the mechanism of election would itself differentiate between President and Vice President rather than leave it up to the Electors. Parties would decide who among their membership would stand for election, as had become their custom, and the Electors would simply vote accordingly. Doubtless understood in part as an attempt at streamlining what had become an increasingly complicated and error-prone process, the aforementioned amendment was approved first in the Senate by a vote of twenty-two to ten, and then in the House by a count of eighty-three to forty-two. It was thereafter officially submitted to the states on December 12^th, 1803, and by June, 1804 had received the approval of the requisite thirteen. The Election of 1804 was the first conducted under the terms of what was by then formally known as the Twelfth Amendment, and the result was a clean, indisputable victory for sitting-President Thomas Jefferson and his running mate George Clinton.

In spite of this promising turnaround – from two botched elections in a row to a sturdy, incontestable result – the larger implications of the Twelfth Amendment were not merely procedural. Granting that the promotion of a clearer election result augured well for the nation at large, its real significance is arguably located in its symbolic status as a profound admission to the power and influence of party politics. Following its passage, the Constitution could no longer be considered a truly non-partisan document. Accordingly, elections for the presidency of the United States could no longer be thought of as a means of selecting the single individual most qualified to bear the powers and responsibilities of the nation’s highest office. Rather, the terms of the Twelfth Amendment effectively admitted that political parties had to be catered to on nearly the same terms as the American people themselves. And whereas the states had formerly been the chief battlegrounds in the emerging partisan war for control of the presidency, parties had now managed to put their stamp upon the Constitution itself. Republicans and Federalist – and later Whigs, Democrats, and a different group bearing the label of Republicans – would certainly continue to enthusiastically compete for decades to come over control of state legislatures, and the associated power to alter the terms by which presidential Electors were chosen. And different methods thereof would be tried, tested, modified, and dismissed. But following the ratification of the Twelfth Amendment, the path to the presidency was well and truly cleared. The institutional hurdles had been done away with; the parties were in control.