For
reasons which I’m sure are fairly obvious, I’d like take a moment to talk about
the Electoral College. Yes, I mean that odd little facet of America’s
democratic institutions that is almost as old as the country itself, and that
now and then produces outcomes that seem at odds with the evident desires of
the voting public. It is, make no mistake, an unusual mechanism by which to
elect a head of state, and one which many foreign observers can only shake
their heads at in confusion and bemusement. Indeed, more than a few American
citizens have doubtless found themselves at a loss to explain how the Electoral
College works and why it exists when asked by friends, relatives, or
acquaintances not native to the land of the free and the home of the brave.
Generations of pundits, commentators, and public officials have attempted this
same feat, and notably struggled to grasp the logic that presumably underpins
the system. It has to do with putting all of the states in play, they say. Or
they speak of how the Framers intended it to act as a kind of
check on the ruthless logic of majority rule. Neither of these suppositions is
terribly close to being correct, though that fact can be easily forgiven. In
truth, the way the Electoral College functions in 2016 is somewhat at odds with
what it was originally designed to do.
In
order to make this case, discuss some of the assumptions that originally
supported the existence of the Electoral College, and explore what has changed
in the United States since its adoption, I’d like to spend the next few weeks
talking through yet another essay in a series that I’m sure my erstwhile
readers are by now completely tired of. I am of course referring to the
Federalist Papers, and to Federalist No. 68 in particular. One of the fifty-one
entries written by everyone’s favorite, sexy, scrappy, self-destructive
Founder, Alexander Hamilton, No. 68 put forward a fairly simple and fairly
concise argument in favor of the Electoral College. In brief, it discusses some
of the problems inherent in electing a head of state via a national vote,
offers the various ways that Hamilton believed the College would counter those
issues, and also points out several other benefits which he judged that the
system possessed. While this may not sound terribly exiting – in fairness, it
probably isn’t to people who aren’t at least a little touched in the head – No. 68 is
nevertheless a potentially revelatory read for those who wish to understand
what the designers of the Electoral College held to be its purpose. I say this
is the case because Hamilton was “in the room where it happened” when the
Electoral College was created, and because the system he described in his essay
bears only a moderate resemblance to this thing – this institutional Albatross
– that no small portion of the American public seems to continually struggle to
explain.
But
first, of course, there is some amount of groundwork to be laid. Putting aside
for the moment why it exists and what benefits it is supposed to confer upon
the American people, the way that the Electoral College actually functions is,
in its broad strokes, fairly straightforward. Essentially, the College acts as
an intermediary between the voting public and the presidential nominees during
a given quadrennial general election in the United States of America. The
voters choose Electors on a state-by-state basis on Election Day in November,
and during the following December the Electors meet and submit their votes for
President. The victor is the candidate who manages to secure the support of an
absolute majority – 50% +1 – of the total number of Electors. The transparency
of this two-step process is somewhat obscured, however, by the perpetuation of
two very common practices. In a great many states, ballots list only the names
of the presidential and vice-presidential candidates, rendering the Electors
that are actually being chosen a mystery to the general public. In addition, in
spite of the fact that it has no bearing on the outcome of the election, the
national popular vote – that is, the actual number of votes that a candidate
receives – is still tallied by the state governments and the Federal Election
Commission, and is widely reported by national media outlets. As a result, the
average voter has every reason to believe that they are helping to elect the
President directly, and that the popular vote is somehow significant to or
legally binding upon the outcome.
For
their part, these mysterious Electors are apportioned to the individual states
on the basis of population, using the same formula by which the states are
allocated their seats in Congress. California, to use a prominent example, was
assigned fifty-three seats in the House of Representatives for its population
of over thirty-seven million following the 2010 census. By adding to this
number the two seats that every state is allotted in the Senate, the state’s
total number of Electors was set between the years 2010 and 2020 – the date of
the next census – at fifty-five. Because every state must be represented by at
least one member of the House of Representatives and two members of the Senate,
the smallest number of Electors a state can be apportioned is three. Though
Washington D.C. is not a state, the terms of the Twenty-Third Amendment –
ratified in 1961 – grant it the right to choose its own Electors as if it were,
provided that their number does not exceed that which is allocated to the
least-populous state – i.e. three. Candidates for the role of Elector are
nominated via a number of different mechanisms, depending on the state they
wish to represent. In some cases nominees are chosen by the general membership
of a party by way of a primary, or by a party convention. In other instances
the party leadership will appoint candidates directly, or the choice will be
left to the campaigns of the respective presidential nominees, or to the
relevant state legislature. The selection criteria for individual electors are
similarly open-ended. The text of Article II, Section 1 of the Constitution states
that the only people disqualified from serving as Presidential Electors are
those already serving in a federal office in an elected or appointed capacity. The
Fourteenth Amendment adds the further – though seldom used – complication that
anyone who swore an oath to defend the Constitution that then rebelled against
the United States government is likewise disbarred from serving as an Elector.
In
spite of being collectively referred to as the Electoral College, the Electors
never actually assemble in a single location during the performance of their
duties. Rather, following their election in November of a given election year,
each delegation meets in their respective state capitals (or, in the case of
Washington’s D.C.’s Electors, somewhere in the District) on the Monday
following the second Wednesday in December. Once convened, the delegation of
Electors functions something like a miniature Congress. A statement is first
read by a certification official, and then attendance is taken, and then
officers are chosen to fulfill certain roles. A pair of tellers are then
assigned, the votes are called – first for President, and then for
Vice-President – and the results are tallied and announced. In spite of how
deliberative this sounds, law and custom – Electors are bound to support the
nominee of their party, and with the exceptions of Nebraska and Maine are
awarded in a winner-take-all lump to whoever wins the majority of votes in a
given state – have effectively rendered this second casting of votes a fait
accompli. In all, the assembled Electors of each state must complete six
Certificates of Vote, each of which records how many votes were given to all of
the eligible candidates, must include the signatures of every participating
Elector, and must have attached a Certificate of Ascertainment provided by the
relevant certification official. The Certificates of Vote are then split up and
sent to a specific public official or institution – one goes to the President
of the Senate, one to the chief judge of the District Court in which the
Electors convened, two to the Secretary of State of the state that the Electors
represent, and two to the Archivist of the United States. If this sounds like
an overly-complicated set of procedures for what appears to be the formal
confirmation of a foregone conclusion, there is, rest assured, a very good
reason for it.
In
the event that no candidate for President of the United States manages to secure
an absolute majority of the total electoral votes on offer – as of 2016, the
magic number stands at two hundred seventy – the chosen Electors are not
permitted to actually cast their votes and the race for the highest office in
the land becomes the responsibility of the House of Representatives. Procedurally,
the process that follows begins when the names of the top three finishers by
Electoral Vote are submitted to the House, whose members are then convened in a
special session. Voting takes place by state delegation rather than individual
Representative – i.e. California’s fifty-three seats net it only a single vote
– and the successful candidate for President is the one who manages to secure
an absolute majority of the fifty state votes – thus, twenty-six. In spite of
possessing the right to choose three Electors, the Delegate from Washington
D.C. is not permitted a vote during these proceedings, and at least two-thirds
of the total number of states must be represented for voting to formally take
place. There is no limit on the number of ballots that can be held, though
Inauguration Day will take place as scheduled with an acting-President if
necessary. Also worth noting, amidst this catalogue of parliamentary procedure,
is that the House of Representatives tasked with this responsibility is
comprised of the outgoing rather than incoming delegates. Thus, in the event
that the House is called upon to exercise perhaps its most weighty obligation,
a number of those assigned to resolve the impasse may have just been voted out
of office. Without necessarily calling into question the logic of this choice,
the likely result would almost certainly be that some amount of high emotion –
personal bitterness, jubilation, etc. – is bound to work its way into the process.
A
notable quirk of choosing a head of state via a delegated voting system like
the Electoral College is that it’s entirely possible for a candidate to secure
enough Electoral Votes to be declared the victor in spite of securing less than
a majority of the total popular vote. The practical consequence of such an
outcome is that the individual for whom the most people voted on Election Day
sometimes ends up losing. In the history of the United States of America, this
has happened on five occasions. The first, in 1824, should be noted with an
asterisk. Of the four candidates running for President – all of whom were
members of the Democratic-Republican Party – Andrew Jackson (1767-1845) secured
both the greatest number of Electoral Votes (ninety-nine) and the largest share
of the popular vote (41.4%). Because one hundred thirty one Electoral Votes
were needed to secure victory, however, the procedure described in the previous
paragraph was set in motion. John Quincy Adams (1767-1848), though he came in
second to Jackson in both the Electoral (eighty-four) and popular (30.9%)
votes, thereafter gained the support of thirteen states in the outgoing House
of Representatives – out of a possible twenty-four – and was consequently
declared the winner and President-Elect. Much has been said as to the exact
circumstances of this upset victory. The Speaker of the House, and thus the man
responsible for overseeing the contingent vote for President, was Henry Clay
(1777-1852), the fourth-place candidate in that year’s election who thus failed
to make the cut-off to have his name submitted to the House. The fact that
Clay, following Adams’ victory, was named the President-Elect’s candidate for
Secretary of State led to loud accusations of a “corrupt bargain” and arguably
helped lay the groundwork for the bombastic Jackson’s victory in the subsequent
Election of 1828. Without commenting on the veracity of Jackson’s outraged
claim, it can at least be asserted with some confidence that by failing to
designate a clear winner in 1824, the Electoral College failed to fulfil its
most basic function.
The
four subsequent occasions during which the person elected President secured a
smaller share of the popular vote than their opponent –1876, 1888, 2000, and
2016 – were similarly unusual in their finer details, though each can trace
their seemingly illogical result to the same basic functional cause – i.e. the
Electoral College. The Election of 1876 saw Democrat Samuel J. Tilden
(1814-1886) secure a larger percentage of the popular vote than his Republican
opponent Rutherford B. Hayes, yet still lose the election by a single Electoral
Vote – one hundred eighty-four to one hundred eighty-five. Though there is a
fair deal more to the story than the numbers alone indicate – allegations of fraud
at the polls, three disputed states, a special electoral commission, and a
bipartisan compromise – a glance at the electoral map paints a clear enough
picture. Tilden, a native of New York, carried his home state – then the
biggest single prize, with thirty-five Electoral Votes – along with a handful
of medium-sized states – Indiana and Missouri, for instance, each with fifteen
Electoral Votes – while Hayes took the next three largest states after New York
– Pennsylvania, with twenty-nine votes, Ohio, with twenty-two, and Illinois,
with twenty-one – along with New England and a smattering of smaller western
states. In spite of the close Electoral College result this produced, however,
Tilden led Hayes in terms of actual votes cast by a significant margin –
4,288,546 or 50.9% to Hayes’ 4,034,311 or 47.9%. Indeed, the Election of 1876
represents the only instance in American history when a candidate for President
secured more than 50% of the popular vote without achieving an overall victory.
Though it would be pointless to deny that electoral fraud did not in any way
contribute to this unusual result, the fact remains that the existence of the
Electoral College made the victory of Rutherford Hayes – the second choice of
the American voting public – possible.
By
the Election of 1888, the chaotic political context of the post-Civil War
Reconstruction – the military occupation of the South, widespread electoral
fraud, popular violence – had settled once more into a fairly close
approximation of the antebellum sectional divide. Incumbent President and New
York Democrat Grover Cleveland (1837-1908) carried the whole of the former
Confederacy – notably including Texas, with its thirteen Electoral Votes –
along with Border States Missouri (sixteen) and Kentucky (thirteen), while
challenger Benjamin Harrison (1833-1901) captured the Northeast – anchored by
New York and Pennsylvania’s combined sixty-six Electoral Votes – the Midwest,
and the West Coast. In spite of Cleveland’s 48.6% share of the popular vote to
Harrison’s 47.8%, however, his one hundred sixty-eight Electoral Votes paled in
comparison to Harrison’s two hundred thirty-three. With two hundred one
Electoral Votes representing the margin of victory, Cleveland came up far short
and Harrison far in excess. Because New York tended to vote Democratic as often
as Republican during this era in American history, was Cleveland’s home state,
and would have tipped the scales in his favor if its thirty-six votes had ended
up in his column, it has often been labelled the lynchpin of Harrison’s
triumph. An examination of the candidates’ vote tallies would seem to lend
credence to this claim – Harrison won the Empire State by less than fifteen
thousand votes. Because of the “winner-take-all” format by which the Electoral
College operates, of course, the six hundred thousand that voted for Cleveland
in the Empire State made no difference to the final result.
Because
the Elections of 2000 and 2016 were so recent compared to those thus far
discussed – and in the case of the latter, perhaps too recent for comfort –
less perhaps needs to be said about them. 2000, of course, saw incumbent
Democratic Vice-President Al Gore square off against Republican Governor of
Texas George W. Bush. Vice-President Gore garnered a 48.4% share of the popular
vote, largely centered on big states like California, New York, and Pennsylvania,
while Bush managed 47.9% by taking the South, the Interior West, Ohio, and
Indiana. In the end, however, Bush’s two hundred seventy-one Electoral Votes –
exactly one more than he needed to win – surpassed Gore’s two hundred
sixty-six. Following a series of recounts in Florida, several conflicting court
rulings, and a final decision by the Supreme Court, Bush was certified the
victor a full month after Election Day. His lead over Gore in the Sunshine
State, when the dust finally settled, was a mere, miniscule,
otherwise-statistically-insignificant five hundred thirty-seven votes. As with
New York and Grover Cleveland over a century earlier, the nearly three million
Americans who supported Al Gore in Florida were effectively brushed aside by
the oft-times ruthless logic of the modern Electoral College.
Without
trying to re-litigate the Election of 2016, it will suffice to say that it
played out in a manner not dissimilar to the previously-noted races of 1888 and
2000. Former Secretary of State and Democratic nominee Hillary Clinton secured
48.0% of the popular vote to Republican Donald Trump’s 46.3%, but Clinton’s two
hundred thirty two Electoral Votes fell well below the threshold of victory
compared to her opponent’s three hundred six. And while the electoral map was
somewhat jumbled compared to previous election years – reliably Democratic
Michigan, for instance, voted Republican – the balance of Trump’s victory was
mainly held by swing states like Pennsylvania, Ohio, and Florida. Where 2016
arguably stands apart from the other instances cited above, however, in in the
actual number of votes separating the victor from the vanquished. Whereas Al
Gore received just over five hundred thousand more votes than George W. Bush,
and Grover Cleveland a little more than ninety thousand votes over Benjamin
Harrison, Hillary Clinton’s popular vote lead over Donald Trump stands at
something in excess of two million. This means – and you will forgive me for
sounding cynical – that the over two
million more people who voted for Clinton over Trump might as well have stayed
home on Election Day, for all the effect they had on the final result. This is
the work of the Electoral College, and it is emphatically not what its
designers intended.
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