Friday, March 3, 2017

Federalist No. 68, et al, Part V: The Losing Battle

As discussed in the previous post, the Twelfth Amendment represents perhaps the most significant turning point in the history of the Electoral College. Prior to its adoption in the summer of 1804, presidential elections in the United States possessed both partisan and non-partisan elements. The rules set by the states legislatures, by which Electors were chosen, were hotly contested by the emerging Federalist and Republican party organizations, while the rules set by the Constitution, by which the Electors cast their votes, remained as the Founders had left them in 1787. In consequence, while party establishments succeeded in shaping the procedures surrounding the appointment of presidential Electors in order to suit their desired objectives, they were still forced to work within the confines of a larger system – i.e. the Electoral College itself – that neither recognized nor made allowance for the existence of permanent political factions. The Twelfth Amendment altered this status quo by effectively writing recognition of party objectives into the section of the Constitution that described the election of the President of the United States. Whereas the Framers had intended for the chief executive and their deputy to be the first and second most acclaimed candidates for the former office, the authors of the Twelfth Amendment evidently believed that the outcomes that this method produced – however reflective of the popular will – were not acceptable to either the formal parties that had cohered since the middle of the 1790s or to their respective partisans.

And yet, though the Twelfth Amendment has arguably made possible over two hundred years of (largely) peaceful transfers of power from one party to another, its adoption in the summer of 1804 was not solely responsible for the transformation of the Electoral College into the form currently in operation. In spite of the apparent victory of factional interest over the intentions of the Framers that the selfsame amendment effectively represents, Electors continued to exercise some measure of individual discretion into at least the 1820s and state party establishments continued to seek strategic advantage by altering the laws that governed their selection through at least the 1830s. Prominent members of both the Founding Generation and their immediate successors offered varying degrees of resistance to this mounting tide of partisan monopolization – on the basis of principle and pragmatism alike – and their repeated failures likewise speaks to the uncertain and ad hoc path that the Electoral College has taken on the way to its present state. Furthermore, the metamorphosis of the role and responsibilities of presidential Electors has also been aided by the lingering effects of a fundamentally mistaken assumption on the part of the Framers themselves. As Federalist No. 68 makes note, the men responsible for designing the Electoral College were keen on crafting a system that would effectively screen out and counter individual or group biases in favor of promoting the rational best interest of the American people. By ascribing such inclinations mainly to the educated and informed elite, however, the Framers failed to provide any safeguard against the assumptions and prejudices of the general population. Political parties have since become especially adept at shaping popular attitudes to suit their various agendas, and have exploited the associated weaknesses of the Electoral College with tremendous success.         

Returning, for the moment, to the early 19th century, the prolonged malleability of the contemporary Electoral College can been seen most clearly in the continually shifting ratio of selection methods in use by the various states from one election year to another. In 1800, prior to the adoption of the Twelfth Amendment, two states (Virginia and Rhode Island) assigned their Electors by a winner-take-all vote, three (Kentucky, Maryland, and North Carolina) practiced the district election method, and the remaining eleven (South Carolina, Georgia, Pennsylvania, New York, New Jersey, Delaware, Massachusetts, Vermont, Connecticut, New Hampshire, and Tennessee) left the task to their respective legislatures. By 1804, Massachusetts and Tennessee had shifted to state legislature to district election, and Pennsylvania, New Hampshire, and New Jersey were joined by new state Ohio in taking up the winner-take-all method. All other states retained the systems they had practiced in 1800, creating a balance of six states following the legislature model, six recognizing winner-take-all, and five awarding Electors by congressional district. Recalling that the practice of assigning Electors by a popular vote in specific districts was the closest to the Framers’ stated intent of the three methods in use, 1804 showed the more party-friendly systems already in the majority. And yet, 1804 also marked a high-point for the district method – never before had as many as five states appointed their Electors that way, and  only 1820 would see a sixth state follow suit. Consequently, while there was indeed a trend taking shape as of 1804 in favor of state-defined electoral laws that favored political party objectives, the overall character of the Electoral College remained notably in flux.

Between 1804 and 1820, the body of state laws governing the selection of presidential Electors continued to fluctuate, in some cases with what might now appear to be alarming frequency. While Kentucky, Maryland, and Tennessee continued to practice the district election method throughout this period, and the majority of their fellow states stuck steadfastly to either the winner-take-all or legislature methods, Massachusetts and North Carolina demonstrated an apparent inability to settle upon any one procedure of appointment. The latter proceeded along a more-or-less linear path from district elections in 1808 to the legislature method in 1812 before finally settling on winner-take-all in 1816, were it has since remained. The Bay State meanwhile shifted from district to legislature between 1804 and 1808, and then to district again in 1812, and then legislature once more in 1816, and then district a third time in 1820. Without being able to say for certain why Massachusetts in particular proved incapable of reconciling itself to a selection method for longer than a single election cycle, or why it continually shifted back and forth between only two specific methods, the most likely reason has everything to do with the seesawing fortunes of the state’s major political parties.

In the years from 1800 to 1820, the Massachusetts wings of the Federalist and Republican parties traded control of the state House of Representatives with a regularity that borders on clockwork. The Republicans began the period in question in possession of the chamber, lost control of it to the Federalists in 1802, and then held it again from 1806 to 1808 and 1810 to 1812. Juxtaposed against the aforementioned record of shifting electoral laws, the most obvious conclusion would seem to be that the Republicans in Massachusetts preferred to allow the state legislature to appoint Electors – the Election of 1800, which occurred right in the middle of their longest period of control, saw the use of this method – while the Federalists favored the district election model – the shift in 1804 corresponds to their majority between 1802 and 1806. In truth, this kind of intense partisan competition – with state electoral laws as the battlefield and the Presidency as the prize – was entirely in keeping with the trends that first set in motion the transformation of the Electoral College in the 1790s. Nevertheless, it remains remarkable that state parties continued to strive for the best possible result from Electoral College appointments for so many years after the ratification of the Twelfth Amendment. In spite of having essentially turned over control of the system to the state parties, large numbers of Federalist and Republican partisans evidently remained in disagreement as to which method of appointing Electors suited their common objective of assembling a victory for their organizations’ chosen candidate for President.

This manifest uncertainty began to dissipate in earnest after the Election of 1820. That specific year effectively marked the last moment in which it could honestly be said that the method favored by the states for choosing Electors remained an open question. Nine states preferred to let their legislatures make the relevant appointments (Alabama, Delaware, Georgia, Indiana, Louisiana, Missouri, New York, South Carolina, and Vermont), nine states followed the winner-take-all model (Connecticut, Mississippi, New Hampshire, New Jersey, North Carolina, Ohio, Pennsylvania, Rhode Island, and Virginia), and six states assigned Electors based on district elections (Illinois, Kentucky, Maine, Maryland, Massachusetts, and Tennessee). While the district election method was still in the minority, it enjoyed more support in 1820 than at any prior point in American history. Furthermore, only three more states preferred legislature or winner-take-all, and there remained no clear consensus as to which system produced the best end result – i.e. the clear and incontestable election of a given party’s declared candidate. While the presidential election that followed in 1824 demonstrated a similar degree of diversity in terms of how Electors were chosen, a tipping point had clearly been reached. Alabama and Indiana had shifted from legislature to winner-take-all, Massachusetts changed from district to winner-take-all, and Missouri moved from legislature to district. While this might not seem like a particularly drastic change, the end result was undeniably profound: six states each supported legislature and district while twice as many practiced winner-take-all. For whatever reason, in answer to whatever impulse, the state parties had begun to coalesce around the method of election that would forevermore define the Electoral College.       

   This development accelerated rapidly through the elections of 1828 and 1832. The former year saw only six states recognize methods other than winner-take-all (four to two in favor of district elections), and the latter year could boast only two (Maryland, which continued to favor district elections, and South Carolina, which stuck stubbornly to legislative appointment). By 1836, South Carolina was the sole exemption to what had clearly become the rule for selecting members of the Electoral College. Thereafter, winner-take-all would be the default method for every state, established or incoming, with only a handful of exceptions. Nevada (admitted in 1864) and Colorado (admitted in 1876), both acceded to the federal union too late in an election years to hold a popular vote under the winner-take-all model and were thereby forced to resort to the legislative appointment method. In 1868, Florida was similarly unable to schedule a state-wide vote quickly enough following its re-admission to the United States following the Civil War. It was therefore also obliged to allow its legislature to appoint a slate of Electors. Since 1876, only two states have ever practiced anything other than the winner-take-all method. Maine switched from winner-take-all to district elections in 1976 and Nebraska followed suite twenty years later. Both still practice the district election method as of 2016, while their forty-eight brethren unanimously favor winner-take-all. 

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