It terms of the gap which may fairly be perceived between the modern, popular interpretation of what the Framers intended when they designed the Electoral College and the assumptions which they gave voice to “in the room where it happened,” further evidence for the existence of the same may be found throughout the discussions which followed the introduction of the Committee of Eleven’s proposal on September 4th. Speaking on that very day, for example, George Mason and Charles Pinkney between them raised what would end up becoming one of the most significant points of contention in the conversation to follow. Specifically, Mr. Pinkney expressed his belief that, “The Electors will be strangers to the several candidates and of course unable to decide on their comparative merits [,]” the consequence of which – according to Mason – was bound to be that, “Nineteen times in twenty the President would be chosen by the Senate [.]” What is particularly noteworthy in these comments from the perspective of the early 21st century is the extent to which they reveal how certain of the men involved in creating the Electoral College envisioned the way it would work. Pinkney’s issue – much like Gerry’s issue with allowing the people to vote for electors directly – was that the electors would likely not be possessed of sufficient knowledge to cast their votes for President in a considered and definitive fashion. They would vote for whichever name they recognized, the resulting tally would show a scattering of votes with no one holding a majority, and the race would end up being thrown to the Senate. Under the circumstances discussed above – i.e., a distinct lack of communications infrastructure or national popular media – this was a perfectly valid concern. But it also contains within it an assumption which is fundamentally antithetical to the way that the Electoral College is understood to function in the present day. What worried Pinkney, recall, is that the electors would not know enough about the candidates, “To decide on their comparative merits.” And today, of course, the very idea that the electors should be in a position to decide anything at all is tantamount to political heresy.
The reason for this change in perception is hardly a mystery. As discussed in these very pages some four years ago, the emergence of political parties in the 1790s, the ratification of the Twelfth Amendment in 1804, and the subsequent crystallization of American politics along rigidly partisan lines over the course of the 1830s and 1840s radically shifted, among other things, the manner in which American presidential elections are conducted. Systems that had been designed to operate in a self-consciously non-partisan atmosphere were changed and adapted to meet the needs of an increasingly professionalized political class, the end result of which was that many of the assumptions which had prevailed within the debates that gave rise to the Electoral College more or less ceased to apply within a half-century of the ratification of the United States Constitution. Charles Pinkney was doubtless far from alone when he took if for granted in September of 1787 that the electors which he and his colleagues were preparing to empower would cast their ballots for president as they each of them saw fit. Indeed, the whole point of creating a system of electors rather than allowing the American people at large to vote for their chief executive directly was that a smaller group of people who were able to garner the confidence and support of their neighbors would likely be better equipped to make a sound decision than the average American voter. And really, Pinkney’s fear that the electors would choose poorly only makes sense in this specific context. If the electors weren’t supposed to be “free agents,” as it were, why should he have been at all concerned if they wouldn’t be able to judge the “comparative merits” of the various candidates for President?
The answer, of course, is that the electors were supposed to be able to choose how they cast their ballots. Electors weren’t meant to be locked into partisan agendas; nor legislators, nor state executives, nor the national executive. Everyone was supposed to act in accordance with their own conscience and sense of judgment, and everyone was supposed to garner the support of their countrymen – not solicit, mind, but magnanimously accept – based on their own merits and the confidence they were able to inspire. Political parties were not supposed to have any part in this, factionalism being widely understood to lie at the root of corruption and conspiracy, and political power was supposed to reside in the hands of those best suited to wield it by their temperament, upbringing, and education. By modern standards, of course, this all seems rather naïve. And it certainly bears remembering that many of the men who held fast to these principles in the 1770s and 1780s later actively abandoned them in the 1790s and 1800s. But while it may now seem rather quaint to imagine that the Framers ever believed it possible for political society to function without people at some point banding together for the purpose of sharing resources and coordinating strategy, they most definitely did. It is not wrong, of course, that American political culture has changed in the interim, nor that American political institutions have been changed in turn. It is not wrong, in really any sense of the word, that electors are now bound to cast their votes in accordance with the wishes of the party to which they belong. But this is not, in any way, what the Framers themselves intended.
Mason’s observation – that most presidential elections would end up being resolved in the Senate – gives evidence of much the same disparity between how the Framers thought the Electoral College would function and how it came to function in practice. In the history of the United States of America following the ratification of the Constitution, presidential elections have resulted in inconclusive results leading to contingent elections exactly twice. The first time, in 1800, occurred prior to the passage of the aforementioned Twelfth Amendment. And the second time, in 1824, occurred almost two hundred years ago as of this writing. Since then, despite the occasional close call, Congress has never been forced to hold a contingent election for President. Such contingent votes, as a result, have come to be understood in modern political, legal, and historical circles as exceedingly unusual exceptions to what is otherwise the rule of American presidential elections. Circa 2021, the accepted wisdom would have it that nineteen out of twenty presidential races are decided by the electors. As far as George Mason was concerned, however – as well as enough of his colleagues to keep the debate going for the better part of three days – nineteen out of twenty presidential races were bound to end up in Congress. The reason for this should by now be clear enough. As Charles Pinkney first asserted – and as many of his fellow delegates later agreed – it seemed unlikely, given the physical realities of life in the United States at the end of the 18th century, that any one person might possess sufficient national popularity to garner a majority of the votes to be cast during a presidential election. And if hardly any presidential vote was decided in the first instance by the electors, then almost every presidential vote would end up being decided in Congress.
This was not, it bears noting, an unsound conclusion. As mentioned previously, American political culture at the end of the 18th century tended to be highly regionalized. Outside of those who had served in the Continental Army or been sent to Congress by their local legislature, most Americans didn’t travel widely, didn’t come into regular contact with people from outside of the state in which they lived, and didn’t have much exposure to the contemporary national political scene. What newspapers existed were highly localized in terms of their reach, and a distinct lack of transportation infrastructure – combined with relatively low levels of literacy – prevented potentially useful information on the issues of the day from travelling very far or very fast. Bearing all of this in mind, it made perfect sense that a number of the delegates to the Philadelphia Convention should have been concerned as to the ability of their fellow Americans to make an informed and decisive choice as to whom among their countrymen ought to serve as President. Having the voters delegate this decision to a group of electors would lessen the likelihood of an inconclusive vote, to be sure, but even this measure was not entirely without shortcomings. As often as the voters would appoint electors possessed of the requisite knowledge and aptitude to make a sound choice for President, they were also bound to select whoever happened to be the most popular personality in the region they called home. And while this latter cohort might rightly claim the confidence of their neighbors in casting their vote for President, popularity would in no way enable them to discern who among the candidates for the highest office in the land was truly deserving of their confidence and support.
Not every delegate seated in
Congress Hall in September of 1787 took this selfsame scenario to be a crisis
in the making, mind you. As mentioned previously, Georgia’s Abraham Baldwin and
Pennsylvania’s James Wilson both rather presciently remarked after the
Committee of Eleven’s proposal was first introduced that any fears as to the
inability of the electors to vote decisively in the first instance were very likely
overblown. “The increasingly intercourse among the people of the States, would
render important characters less & less unknown,” asserted Baldwin. And at
the same time, Wilson observed, “Continental Characters will multiply as we
more & more coalesce [.]” Accurate those these claims would soon enough prove
to be, however, they did not do much in the immediate to sway the greater share
of the assembled delegates. For the next two days, based on the notion
introduced by Mr. Mason that the electors would more often than not fail to
produce a conclusive result, the attendees to the Philadelphia Convention went
back and forth on the procedures and implications of contingent elections. How
should they be conducted? Where should they be conducted? How quickly after an
inconclusive vote by the electors? And to what extent should special rules
apply beyond those enforced during a regular session of Congress? In attempting
to answer these questions, a definitive consensus was very gradually assembled.
But while the necessity of such a discussion ought not to be in doubt, it is
nevertheless worth reflecting in retrospect upon the relative emphasis the
Framers ended up placing on certain aspects of executive elections in the
United States of America.
To wit, recall the extent to which
the American people have ever been forced to resort to a continent election in
order to choose a President. Once in 1800, and once in 1824. While a very small
handful beyond these two have also involved inconclusive results and were resolved
by way of highly unusual procedures, no other presidential election in the
history of the United States has made use of Congress’s relevant power under
the Constitution. In every other case – again, noting the small handful of
exceptions – the vote of the electors was definitive in the first instance.
Now, bearing these facts in mind, consider the extent to which the assembled
delegates discussed the relevant constitutional procedures. Not everyone in
attendance wholeheartedly embraced Mr. Wilson’s idea that the President should
be selected by a group of popularly chosen electors when he first proposed it
on June 2nd, to be sure. Nor did it go without comment when the
Committee of Eleven chose to adopt this selfsame concept and make it the core
of their proposal. But while some amount of discussion did take place as to the
likely ability of the electors to cast their votes in a decisive manner, enough
delegates seemed to take it as a given that they wouldn’t to shift the
remaining conversation almost completely onto the topic of contingent
elections. The result, over the course of September 4th, 5th,
and 6th, was that the purpose and significance of the electors was
discussed very little while the implications of a contingent vote for President
in Congress was discussed to great length and great effect.
This lopsided emphasis may well have been the result of the one significant change which the Committee of Eleven made to Mr. Wilson’s original proposal. As described by the gentleman from Pennsylvania on June 2nd, the electors whose sole purpose it was to select the individual who would go on to serve as President were supposed to be chosen from within a set of pre-defined districts. The exact size and composition of these districts, it bear noting, were as yet left undefined. Would they be defined by Congress? By the state legislatures? By some independent body constituted specially for that purpose? All of these questions would doubtless have been answered had the basic concept of electors garnered more support at that moment in time. As it stood, most of the delegates were not yet ready to abandon the idea of having the chief executive of the United States appointed by a joint vote of Congress. And while Elbridge Gerry was one of the few in this opening phase of the discussion who felt congressional appointment to be ill-advised, he also expressed doubts as to the wisdom of Wilson’s proposal.
Specifically, Gerry argued that, “The principle of Mr. Wilson’s motion […] would alarm and give a handle to the State partisans, as tending to supersede altogether the State authorities.” Based on the result which they ultimately produced, the members of the Committee of Eleven appeared to harbor similar anxieties. Mandating that the states had to permit the people to choose their electors by way of district elections may indeed have been interpreted by the various state governments as a concerted attempt to keep them from having a voice in the selection of the nation’s chief executive. Better, under the circumstances, to leave the choice of electors completely up to the states. The number of electors chosen by each state would be set by the Constitution, being one for each seat said state was entitled to in the House and one more for each seat which it held in the Senate. But the state legislatures, the Committee decided, would decide how these offices were dispersed.
This alteration, to be sure, did not
please all those who were present. As late as September 5th, for
example, John Rutledge of South Carolina was of the opinion that the American
people would have been better served if he and his fellow delegates returned to
a discussion of the merits of congressional appointment. The fact that no one
took him on this offer, however, and that the conversation of the next day and
half took place entirely within the context of the Committee of Eleven’s
proposal, would seem to demonstrate fairly conclusively that the basic concept
of executive electors was at this stage no longer a matter of substantial
disagreement. Indeed, several of the more vocal contributors to the debate
which would follow seemed to take the existence of the electors almost
completely for granted, to the point of almost entirely dismissing their
significance within the process of executive elections. Mason had arguably set
this train of thought in motion with his remarks on September 4th.
“Nineteen times in twenty [,]” he said, “The President would be chosen by the
Senate [.]” This could hardly be said to constitute an endorsement of the
important role set to be played by the electors. Nor could Charles Pinkney’s
insistence the following day that, “The electors will not have sufficient
knowledge of the fittest men, & will be swayed by an attachment to the
eminent men of their respective States. Hence […] the dispersion of the votes
would leave the appointment with the Senate.” Rather than attempt to remedy the
potential faults which they had identified as likely to lessen the
effectiveness of the electors, however, these men and their colleagues instead turned
their focus almost entirely upon the procedures to be put in place in the event
of an inconclusive executive election.
The Senate thus became the principal
topic of discussion during the conversations which followed over the course of
September 5th and September 6th. The electors, still
technically the centerpiece of the process under discussion, were accordingly relegated
to something of an afterthought. Yes, they would still cast their votes. And
yes, their votes could still potentially elect a President and a Vice-President
in the fist instance. But as far as the majority of the assembled delegates
seemed to be concerned, they were unlikely to do more than serve as a kind of
nominating convention. Certain of them, in point of fact, went so far as to say
just that. Rufus King of Massachusetts, for example, argued on September 5th
that, “The influence of the Small States in the Senate was somewhat balanced by
the influence of the large States in brining forth the candidates.” What he
meant by the phrase “bringing forth the candidates,” of course, was process by
which the various electors would cast their votes. In his mind, it seemed, the
purpose of the electors was no longer to choose the President and
Vice-President themselves, but rather to cull the list of potential candidates
to a manageable size for the Senate to then consider. Connecticut’s Roger
Sherman, in attempting to argue on September 6th for the House
rather than the Senate as the proper place for a contingent election, likewise indicated
that the Representatives therein should vote by state rather than individually
because, “The large States would have so great an advantage in nominating the
candidates.” Within a day of the introduction of the Committee of Eleven’s
proposal, it seemed, the participants in the relevant debate were already of
the opinion that the electors which on paper formed the core of said plan would
in practice only function as a screening mechanism for the Senate.
This underlying attitude is
doubtless what motivated the assembled delegates to discuss the implications of
granting the Senate the right to hold contingent elections as exhaustively as
they did. If, as Mason put it so succinctly, nineteen out of twenty
presidential elections were going to end up in the Senate, then it stood to
reason that the potential consequences thereof ought to be examined in detail.
Would allowing the Senate to elect the President more often than not negatively
affect the balance of authority between these two branches of government? Would
the President end up becoming subservient to the Senate? Was adding the right to
hold contingent elections to the Senate’s already considerable powers a step
too far in the direction of aristocracy? The answers to all of these questions
were considered and debated at length. Some delegates, like the aforementioned
Mr. King, seemed to think that granting the Senate a contingent vote for
President represented a much-needed counterweight on behalf of the small states
to the influence which the large states would end up wielding by way of their
electors. Others, like James Madison, felt that giving the Senate a contingent
vote for President – to the benefit of the small states – would encourage the
large states to direct their electors to vote decisively in the first instance.
But more delegates than gave voice to either of these positions came to the
shared conclusion that the Senate was quite simply the wrong place to hold a
contingent vote for President.
As previously discussed, Roger
Sherman’s proposal to hold contingent votes in the House rather than the Senate
is what ultimately brought the executive election debate to its long-await
close on September 6th, 1787. In the end, though not everyone was in
perfect agreement, a consensus had been formed around letting the lower house
of Congress handle inconclusive presidential elections by way of a few key
tweaks to its normal voting procedures. But while this alteration to the
Committee of Eleven’s plan has since proved itself to be a relatively durable
compromise in practice, it is, upon reflection, a rather unusual mechanism for
resolving inconclusive votes. For that matter, it is rather strange to realize
in retrospect the degree to which the Framers felt that such a mechanism was
needed. As aforementioned, all but a handful of the presidential elections held
in the United States since 1789 were decided in the first instance by the
Electoral College. Nineteen times out of twenty, it might accordingly be said,
the Electoral College has been the decisive factor. But as the notes which
James Madison recorded during his participation in the Philadelphia Convention
make clear, the Framers were convinced that the opposite would be the case.
Most of them felt that the electors would serve as little more than a nominating
convention, and that the final decision would be made via a contingent vote in
one of the two houses of Congress. The product of the resulting debate was a
mechanism which sought to balance several competing priorities.
The large states, the Framers
believed, were likely to exercise a substantial influence over the result of the
vote of the electors because said electors were set to be allocated broadly in
proportion to population. In order to balance this out, the Committee of Eleven
accordingly determined that contingent votes – which, again, most delegates
were convinced would take place more often than they didn’t – should occur
within the confines of the Senate. With each state therein possessing the same
number of votes, it was felt that the small states would thus enjoy an
advantage in proportion to that which the large states enjoyed in terms of
their electors. But this, as it turned, out, was unacceptable to the majority
of the assembled delegates. The Senate may have been ideally structured to
balance the influence of the large states and their electors, but it had also already
been granted a whole host of powers and responsibilities during prior sessions
of the Philadelphia Convention. In addition to possessing a vote on regular
legislation, the Senate was also set to ratify treaties negotiated by the
executive branch, confirm nominees to the federal courts and to various
executive offices, and conduct impeachment trials. By adding the right –
conditional though it may have been – to appoint the President to this already
quite substantial share of authority, no small number of delegates believed
that the Senate would become far too potent for any other branch of the
national government to restrain. “According to the plan as it now stands,” James
Wilson thus observed, “The President will not be the man of the people as he ought
to be, but the Minion of the Senate […] And with all those powers, and the
President in their interest, [the Senate] will depress the other branch of the
Legislature, and aggrandize themselves in proportion.”
The delegates, as aforementioned,
had hemmed and hawed for several days over exactly this issue. And it was
ultimately Roger Sherman’s proposal to hold contingent elections in the House
of Representatives that broke through what had developed into a seemingly
intractable impasse. But consider, for a moment, the nature of the resulting
compromise. Sensible though it certainly was in the moment, the balance of
interests which it purported to strike in 1787 has since been rendered almost
entirely unnecessary. The compromise, recall, required that the House vote
during a contingent election by state delegation rather than individual member.
In consequence, rather than allow the states with the largest number of
inhabitants – and thus the largest number of Representatives – to essentially
“run the table,” each state would possess exactly the same weight. And while
the Senate, as previously noted, would not have required special rules to
perform this same function, the Senate was also deemed by a number of delegates
to be too powerful already to take on yet another significant responsibility.
For the purposes of a contingent election for President, therefore, the
Constitution mandates that the House of Representatives transform itself into
something like an approximation of the Senate before rendering its final
verdict. But why should it have to do this? Why couldn’t the House just vote as
it does normally?
Naturally, the assembled delegates
could have allowed the House of Representatives to vote during contingent
elections according to the same rules by which it was to vote on regular
legislation. That is, with a quorum comprising an exact majority of those
seated and every member casting a vote on their own behalf. As this would have
essentially preserved the relative influence possessed by the various states in
terms of the number of electors to which they were each entitled, a contingent
vote in the House would accordingly have functioned as a kind of repeat
performance of the first-round vote. Representatives would have stood in the
same relation to the American people as their chosen electors, and populous
states like New York, Virginia, and Pennsylvania would have enjoyed just as
much influence over their smaller neighbors. But while the House might
accordingly have seemed like the ideal place to hold a “do-over” of an
inconclusive presidential election, this is not what the Committee of Eleven
ultimately decided upon. And nor is it what the assembled delegates decided upon
after discussing the matter at length. They were fine – for the most part – with
population largely determining the choice of President in the first instance,
but not necessarily in the second. Why? Why did they feel like contingent
elections should have been governed by different rules? The answer, it turns
out, comes back to the idea of balance.
Rufus King said it well enough when
he observed on September 5th that, “The influence of the Small
States in the Senate was somewhat balanced by the influence of the large states
in bringing forth the candidates [.]” The assembled delegates were fine
– again, for the most part – with allowing population to determine influence
within the context of what we now know as the Electoral College. But they were
not fine with that same logic applying in the event of an inconclusive
first round vote. Should the electors have produced either a tie or a
plurality, the Framers were of the broad opinion that the method by which such
an impasse was resolved ought to have taken place on as level a playing field
as possible. But why, one might fairly ask, should this kind of equilibrium
only have been preserved in the rare instance when the electors failed to vote
in the majority? If it was so important, why weren’t all executive elections
conducted in two rounds? The answer, of course, is that by the end of the
discussion which gave rise to the Electoral College on September 6th,
1787, most of the delegates believed that they would be. Notwithstanding the
comments made by Messrs. Baldwin and Wilson to the contrary, most of the
delegates in attendance during the debates in question had little faith, if
any, that the electors assigned to the various states would vote in the
majority for any one candidate. These men accordingly came to believe that a
durable mechanism for a second-round vote was absolutely essential. And since
the assembled delegates had already decided to construct other aspects of the
proposed national government on the principle of balancing the relative
influence of the large states and the small states, it made perfect sense for
them to pursue the same goal in the context of executive elections.
And all of this means
what, exactly? Well, for one thing it means that the manner in which the
Framers of the Constitution believed that the Electoral College would function
turned out to be substantially at odds with how it has since come to function
in practice. The Framers intended for the electors to exercise discretion when
casting their votes for President and Vie-President. Virtually no one expects
them to do this anymore. The Framers believed that most presidential elections
would end up in being decided in Congress, and they devised the resulting
mechanisms of government to promote balance in the long-term. It is now thought
to represent something of a national crisis if the Electoral College fails to
produce a decisive result by midnight on Election Day. And perhaps most
significant of all, it is a demonstrable fact that at least some of the Framers
preferred that the President be elected by way of a simple popular vote. As of
the early 2020s, the idea of eliminating the Electoral College and embracing a
simple popular vote is often disqualified by commentators and pundits as
running counter to the Framer’s original, necessarily perfect vision. Clearly,
in more ways than one, the Electoral College as it now exists in the popular
imagination of the American people is a far cry from what the Framers actually
envisioned in 1787. It does not function the way they intended it to, parts of
it upon which they lavished significant attention have since gone mostly
unused, and the factors which caused them to devise it in the first place are
generally no longer applicable.
James Wilson first
proposed the core concept of executive electors, remember, because his fellow
delegates were substantially convinced that holding a national popular vote
simply wasn’t feasible. Americans voters could be trusted in those days to
choose a state legislator, or a state senator, or a member of Congress, or
perhaps even a governor. But a President? Someone possessed of the requisite
experience and expertise to preside over the administration of the whole of the
United States? No. Lacking any means to easily familiarize themselves with potential
candidates for office, and broadly lacking in education and/or basic literacy,
the American people were unsuited to choose a President directly. But while this
was very probably the case in 1787, clearly, demonstrably, this is no longer
the case today. The people of France are regularly asked to directly elect
their head of state. And the people of Ukraine, and Colombia, and Taiwan, and
so forth. Are the people of the United States less qualified to determine who
ought to be their president than the inhabitants of these other countries? Are
they less educated, less informed, or less intelligent, as a rule? “No,” say
the modern proponents of the Electoral College, “It isn’t that. It’s just that
popular elections are not what the Framers intended.” This is true enough, if
overly simplistic. By the end of discussion on September 6th, 1787 –
at which point the Electoral College was more or less complete – popular
election wasn’t really on anyone’s mind any longer. But there were other things on people’s minds
in that moment which have nevertheless since been forgotten or changed.
The Framers intended
for the electors to exercise their discretion, and for contingent elections in
Congress to be a regular occurrence. Is it wrong that this is not so today? Is
it wrong that the emergence of a stable party system and the ratification of
the Twelfth Amendment have since obviated the need for either autonomous
electors or regular contingent elections? Or are these changes made acceptable
by the fact that they were put into place almost as long ago as the
Constitution itself? Are they excused because they took place at the behest of
many of the same men who originally framed that selfsame document? Perhaps so.
To be sure, it isn’t wrong that the Electoral College no longer works they way
it was designed to. The American people are free to make amendments to any aspect
of their government as they find that their needs and their desires have
changed. What is wrong is behaving as though
things that aren’t true really are. Justification for the existence of the
modern Electoral College cannot be found in the words and deeds of the Framers.
As this examination of Madison’s notes on the subject should have made
substantially clear, the Framers wouldn’t recognize the modern Electoral
College to see it. Not only that, but many members of this illustrious cohort
were substantially unsatisfied with the end product of their collective
efforts. To speak of the Electoral College in terms of the Framers intentions,
therefore, is to mischaracterize something about which its creators had very
different ideas than the average 21st century observer, and about
which many of them were also deeply ambivalent. Far from representing the ideal
form of executive election which the demi-gods of old America received
miraculously from on high, the Electoral College was simply the most cohesive
plan upon which the Framers could mostly agree. Nobody thought that it was
perfect at the time, it has since been changed substantially in the interim,
and nobody ought to imagine that preserving it amounts to some kind of moral
imperative.
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