Federalist No. 68, et al, Part VI: The Forlorn Hope

Because of how inevitable a simple year-by-year accounting can make the emergence of the current status quo seem, it is perhaps worthwhile to note at this stage of the discussion that a number of prominent figures have attempted to push back against the transformation of the Electoral College from vital decision-making body to the world’s most expensive rubber stamp. Certain members of the Founding Generation in particular demonstrated disappointment and dismay at the steady erosion of the system’s intended purpose, and several even went so far as to offer potential countermeasures. Perhaps most noteworthy among the latter group were, unsurprisingly, two of the principle architects of the Electoral College itself, Alexander Hamilton and James Madison. Hamilton’s perception of the role that the Electors were supposed to play in the selection of the nation’s chief executive, if the text of Federalist No. 68 is any indication, made no allowance for general tickets, winner-take-all votes, or any other measures which might have altered or impinged upon the ability of the Electors to exercise the full extent of their individual discretion. His specific use of words like “analysing,” “deliberation,” “choice,” “discernment,” and “investigations” to describe the character that the Electors were to possess and the nature of their appointed task would seem to make this fact quite clear.

Admittedly, Hamilton’s actions did not always hold true to this ostensibly strict understanding of what the Electoral College was supposed to be. As noted above, his actions during, and in the aftermath of, the New York legislative elections of 1800 were hardly those of an individual who held firm to principle, come what may. Amidst the hurly-burly of 18^th century electioneering – a primitive, but powerful art – he seemed either to have forgotten what he had written so many years earlier about the importance of Electors exercising discretion, or something had occurred to change his mind. Then again, perhaps it was neither. Confronted with the preferences of the state party organizations for this or that method of choosing Electors – conferring this or that strategic advantage – the ever-pragmatic Hamilton perhaps made the same compromise with himself that all but the most morally inflexible statesman eventually confront. However much it satisfied his personal sensibilities for Electors to be active agents in the national political process, the circumstances of the moment demanded that he attempt to make his home state’s preference – appointment of Electors by the legislature – work to his advantage. Recalling his role as perhaps the most diehard of Federalist partisans during that faction’s early existence, this scenario appears all the more plausible. In spite of the fact that he had helped to design the Electoral College, Hamilton was as susceptible as any of his fellow countrymen to the same pressures of partisan competition that would later support the passage of the Twelfth Amendment and form a consensus around the winner-take-all method of Elector appointment.         

 And yet, in spite of this rather hard-headed approach to politics – or perhaps because of it – Hamilton was also one of the more prominent supporters of some kind of institutional solution to the steady erosion of the Framers’ vision for the Electoral College. In the aftermath of his party’s defeat in the New York vote in May, 1800, his ill-conceived appeal to Governor Jay to overturn the results, and his ideological adversary Thomas Jefferson’s resulting election as President later that year, Hamilton drafted and put forth a suggested constitutional amendment of his own. Predating the introduction of the soon-to-be Twelfth Amendment by over a year, Hamilton’s proposal was presented as a resolution to the New York State Senate on January 26^th, 1802, approved by that body on January 30^th, sent to the State House of Representatives that same day, and approved again on February 1^st. Minus introductory and concluding paragraphs, the resolution was divided into two clauses. The second was by far the shortest, and read in full, “That in all future elections of President and Vice President the persons voted for shall be particularly designated by declaring which is voted for as President and which as Vice President.” After the approved resolution was submitted to Congress by New York Representative Benjamin Walker (1753-1818) and rejected by the Senate, it was this passage that was eventually resurrected as the aforementioned Twelfth Amendment.

Reforming how the Electoral College functioned, however, was but one part of Hamilton’s plan. In isolation, taking measures to that end would not have accomplished what the full text of his proposed amendment clearly intended to accomplish. Consider, as evidence of Hamilton’s broader vision, the first clause of said amendment – the part that the New York Legislature approved and Congress rejected. Comprised of a relatively detailed set of instructions intended to clearly define how the states were to select their apportioned Electors, it suggested that Congress take up responsibility for dividing each of the states,

Into Districts equal to the whole number of Senators and Representatives from such state[s] in the Congress of the United States, and shall direct the mode of choosing an Elector of President and Vice President in each of the said Districts, who shall be chosen by Citizens who have the qualifications requisite for Electors of the most numerous branch of the State Legislature, and that the districts shall be formed, as nearly as may be, with an equal proportion of population in each [.]

By electing to take the choice of appointment method entirely out of the hands of the states, and by in fact specifically mandating the district election method, Hamilton thereby recommended introducing a level of procedural standardization to the national electoral process that had heretofore never existed.

Operating under these restrictions, state party organizations would theoretically no longer perceive legislative elections as the single most vital theatre in their ongoing contest for the office of President. The method by which a state appointed its Electors would no longer be defined by which party was in power, and the citizens of every state could at last be assured that they were on an equal playing field – at least in terms of how their votes for President were counted – with the rest of the countrymen. In addition, a constitutionally-mandated and Congressionally-defined system of district elections would have effectively banished the democratic iniquities of the winner-take-all and legislative appointment methods. Whereas, under both the former and the latter only fifty-one percent of the vote was required to secure a party one hundred percent of the state’s Electors, Hamilton’s proposed system would have potentially ensured that districts wherein support for the minority was strongest would have been able to choose Electors that reflected their particular priorities and concerns. Granting that these alterations to the status quo would not have succeeded in banishing the spectre of partisan politics altogether – state parties doubtless would have simply shifted their attentions from legislative elections to the various district elections – they would at bottom have helped ensure the selection of an Electoral College that was more broadly representative of the many and varied communities of which the United States was comprised. No longer able to boil down any given Presidential vote to simply taking the shortest path to a statewide fifty-one percent, parties would be forced to compete in much smaller and much less homogeneous constituencies. The end result, if not a revolution, would perhaps at least have resulted in an American Presidency that reflected the aggregate of voter intentions more than the strategic posturing of political parties.

Also worth noting – in relation to the uncertain path of the Electoral College and the challenges presented to potential reformers by an increasingly partisan political culture – are the particular circumstances within which Hamilton was able to present his proposed amendment to the legislature of his home state. Because Hamilton was not a member of the New York State Legislature in 1802, he required some form of official cooperation for his proposal to be publically considered. That is to say, he needed a favor from a sitting member of either the New York State Assembly or the New York State Senate. When one considers that in the early months of 1802 the latter body was controlled by Hamilton’s own Federalist Party, it would seem fair to assume that he would not have had to work very hard to engage the assistance of a fellow partisan. And yet, in spite of Hamilton’s recent defeat at the hands of Republican rival Aaron Burr, the election of nemesis Thomas Jefferson, and his well-documented reputation as the arch-partisan of the Founding Era, he instead reached out to Republican State Senator – and later Governor and Mayor of New York City – DeWitt Clinton (1769-1828). Nephew of long-time New York Governor George Clinton (1739-1812), young DeWitt was just beginning what would prove to be a long and influential career in state and national politics. In consequence, in spite of his membership in a party to which Hamilton stood ideologically opposed, he perhaps presented to the elder statesman a more promising prospect for cooperation than one of his more established and more entrenched colleagues. That being said, Clinton’s help did not come without a price.

In exchange for placing the proposed amendment before the eyes of his fellow Senators, Clinton put forth two alterations to the text therein. One, found at the conclusion of the first clause, pegged the creation or alteration of Electoral College districts to the decennial United States census. This, in all likelihood, was merely a matter of “housekeeping” – an attempt to ensure that Electoral College districts functioned via the same rules as Congressional districts. The other suggested alteration, however, was somewhat more substantial, as it replaced the word “Congress” at the beginning of the first clause with the phrase “State Legislatures.” This change effectively reasserted the role of individual states in structuring and administering the selection of Electoral College delegates. Granted, it did not unduly infringe upon Hamilton’s core objective – placing every state on the district election model – but it most certainly represented a different understanding of the relationship between the various states and the federal government. Via Clinton’s alteration, state governments would have been able to define the boundaries of Electoral College districts in much the same way that they did their own legislative assembly districts. This would presumably have led state party organizations to continue to treat legislative elections like single theatres within a larger partisan conflict, though with something of a delayed or deferred effect. After all, even the most nakedly partisan gerrymanders fail to go so far as to eliminate the possibility of some form of opposition. However lopsidedly one party or another attempted to “stack the deck” by drawing Electoral College districts to their own benefit, some opposing Electors were bound to be chosen. In this sense, while not as stringent as Hamilton’s original, even DeWitt Clinton’s modified proposal would likely still have led to the creation of a more dynamic, competitive, and representative Electoral College.

Perhaps the most fascinating aspect to the story of Hamilton’s failed attempt to reform the Electoral College – which is on its own already pretty damn fascinating – is the  fact that he apparently agreed to go forward with Clinton’s proposed alterations. As discussed above, the resolution packaging the suggested amendment was presented to the New York State Senate, passed by the same group, sent to the New York State Assembly, and passed again. When one also recalls that that selfsame Senate session was controlled by the Federalists, that they generally supported strengthening the Federal government and that Hamilton was at that point in history their unchallenged champion, they whole affair takes on a somewhat miraculous aspect. How did this happen? How did Republicans and Federalists in ultra-partisan New York, at one of the most contentious moments in the history of American party politics, possibly reach a consensus on something as fundamental as altering the manner by which the American people assigned someone to occupy the most powerful office in the nation? The answer – and I want to speak to you directly just now so that there is no confusion – is quite simply, I don’t know. I don’t know how Hamilton could have agreed to Clinton’s alterations, or why he chose Clinton as his partner to begin with, or why the New York Senate Federalists accepted the altered proposal, or really how any of it came to pass.

And yet, it did happen.

For that reason alone, Hamilton’s failed amendment represents a tremendously important moment in the history of the Electoral College. In spite of the partisan competition over state Electoral College selection law that was then animating local party organizations from Maine to Georgia, and the Federalists’ stinging loss in the New York state elections of 1800, and the apparent advantage enjoyed by the Republicans, and the strategic allure that winner-take-all and legislative appointment each possessed, New York’s partisans somehow found themselves agreeing that the status quo was untenable. Rather than continue to bludgeon each other every Election Day over who would write the electoral laws, or appoint the Electors themselves, Federalists and Republicans, for however brief an instant, turned from competition to conversation. Hamilton began the parlay with his draft amendment, Clinton countered with his alterations, the modified resolution was presented to the assembled lawmakers, and the majority voted in favor. The end product was not what Hamilton originally envisioned – having swapped federal for state authority. Still, his core objective – consistency, and in a form more closely approximating what the Framers originally intended – remained intact. At the price of compromise, he had largely achieved what he set out to achieve. Even if Clinton’s adjustments took place without Hamilton’s knowledge – if he sent the updated draft to the Senate without consulting his supposed partner – their ratification by the Federalist-majority Senate still speaks to the proposed amendment’s bipartisan support, the willingness of American partisans at the turn of the 19^th century to actively discuss particularly divisive subjects, and the status of the contemporary Electoral College as a largely unsettled question.