Commentary Collections

The Creation of the Electoral College

A collection highlighting important moments in the debate over how a President should be chosen for the United States.

Cite as: N. P. Cole, Grace Mallon and Kat Howarth, The Creation of the Electoral College, Quill Project at Pembroke College (Oxford, accessed 2017)

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Although most Americans think of the President as a directly-elected figure, in fact the competition for votes occurs State-by-State, each State having an influence in the outcome in a way that is related to, but not perfectly in proportion to, the size of its population. As a result, a President can be selected by the process who has, in fact, fewer votes than his or her opponent.

The complicated system for selecting the President has its origins in the Constitutional Convention, and although the system has been modified since by both constitutional amendment and practice, the core of the system proposed by the Convention is still in place.

The Convention considered a full range of options --- everything from a nationally-organized election through to a system with an element of chance. Their thinking evolved as their view on other matters, such as the role of the Executive and the relationship of the National Government to the States also shifted.

Other issues---would the Executive consist of one man, two men, or more? How would he or they be advised? What relationship would they have to Congress, the Judiciary and the State governments? What would the nature of the Judiciary and Executive be?---all affected thinking on how the President (and, indeed, Vice-President) would be chosen; these issues will be dealt with in full in their own right by other commentaries.

The moments in the Convention highlighted by this collection simply suggest a set of starting points for readers exploring how the Convention's thinking on the selection of the President evolved and settled.

Commentaries (26)

The original Virginia plan proposed that the national executive -- the office that would later by styled 'The President' -- should be chosen by the national legislature. The original plan did not specify exactly how this should be done; presumably a vote would have had to be taken with both houses meeting at once as electors, though this was clearly a detail left for further discussion. These arrangements would have been in line with existing state practice. In Virginia between 1776 and 1851, the governor was chosen by the legislature. The 1776 constitution provided that 'A Governor, or chief magistrate, shall be chosen annually by joint ballot of both Houses (to be taken in each House respectively) deposited in the conference room; the boxes examined jointly by a committee of each House, and the numbers severally reported to them, that the appointments may be entered (which shall be the mode of taking the joint ballot of both Houses, in all cases) who shall not continue in that office longer than three years successively, nor be eligible, until the expiration of four years after he shall have been out of that office. An adequate, but moderate salary shall be settled on him, during his continuance in office; and he shall, with the advice of a Council of State, exercise the executive powers of government, according to the laws of this Commonwealth; and shall not, under any presence, exercise any power or prerogative, by virtue of any law, statute or custom of England. But he shall, with the advice of the Council of State, have the power of granting reprieves or pardons, except where the prosecution shall have been carried on by the House of Delegates, or the law shall otherwise particularly direct: in which cases, no reprieve or pardon shall be granted, but by resolve of the House of Delegates.' [1] The outline provision for the national executive, given here, follows this model closely, though with considerably less detail. However, already an alternative model of direct election had been practised. The 1777 Constitution of New York provided that: 'XVII. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that the supreme executive power and authority of this State shall be vested in a governor; and that statedly, once in every three years, and as often as the seat of government shall become vacant, a wise and descreet freeholder of this State shall be, by ballot, elected governor, by the freeholders of this State, qualified, as before described, to elect senators; which elections shall be always held at the times and places of choosing representatives in assembly for each respective county; and that the person who hath the greatest number of votes within the said State shall be governor thereof. 'XVIII. That the governor shall continue in office three years, and shall, by virtue of his office, be general and commander-in-chief of all the militia, and admiral of the navy of this State; that he shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them from time to time, provided such prorogations shall not exceed sixty days in the space of any one year; and, at his discretion, to grant reprieves and pardons to persons convicted of crimes, other than treason or murder, in which he may suspend the execution of the sentence, until it shall be reported to the legislature at their subsequent meeting; and they shall either pardon or direct the execution of the criminal, or grant a further reprieve. 'XIX. That it shall be the duty of the governor to inform the legislature, at every session, of the condition of the State, so far as may respect his department; to recommend such matters to their consideration as shall appear to him to concern its good government, welfare, and prosperity; to correspond with the Continental Congress, and other States; to transact all necessary business with the officers of government, civil and military; to take care that the laws are faithfully executed to the best of his ability; and to expedite all such measures as may be resolved upon by the legislature.' The New York constitution also made provisions for the office of Lt Governor.[2] [1] http://www.nhinet.org/ccs/docs/va-1776.htm [2] http://avalon.law.yale.edu/18th_century/ny01.asp

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The Virginia Plan as Proposed was created on 29 May 1787

The debate recorded here sees Wilson stating his preference for the election of the President by the people at large --- an innovation which, he points out, had been successful in New York. He would make this a formal suggestion later in the Convention, though it appears to have been rejected without much debate. This is a reminder that many states at the time had an executive chosen by the members of the State Legislature. Perhaps this explains one of the reactions to Wilson's suggestion of a democratically elected President. As Sherman's response shows, some saw an executive independent of the legislature not as a proper 'separation of powers' but as the definition of tyranny. Put that way, it suggests the relationship of Charles I and Parliament. The powers given to Congress to impeach The President (albeit with a high threshold), Congressional oversight of taxation and spending, Congressional oversight of the power to declare war, the involvement of the Senate in most of the President's key decisions, and the lack of an absolute veto mean that the executive office actually created was not, in fact, completely independent of Congress. The arrangements for the Electoral College left open the possibility of some kind of popular election. Whether because state legislatures could be considered truly representative of their populations, or whether because it was assumed that states like New York would opt for some kind of democratic choice of electors (whether proportionally to a popular vote, by district or on a winner-takes-all model is simply not specified by the Constitution at all and there was no debate of such matters), the debate at the Convention settled in to a dispute over whether to allow Congress to make the choice, or whether to create the electoral college. The latter appears to have been seen as the more 'democratic' choice (albeit not fully so), which perhaps explains why Wilson's proposal had such little support.

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Virginia Plan [Resolutions] - Seventh Resolution (Executive Branch): Mode of Appointing Executive was debated on 01 June 1787

The brief note of Wilson's intervention here does not fully explain why he thought that election by the people directly was a 'chimerical' suggestion. Though not yet a standard way of electing a chief executive at State level, it had been adopted by the State of New York. Perhaps Wilson was referring to the difficulties of running a national election. It would involve Congress in the management of an election which would, of necessity, have involved variation in the qualifications for voting in different states. The details of how such an election would have worked (a single national vote, or the more familiar election by district) were not considered by the Convention. How any disputes or controversies arising from such an election would have been settled was likewise never debated. The eventual solution --- an electoral college --- to a large extent insulates the final choice from accusations of irregularity. It seems likely that similar language would have been adopted as was written for the election of members of the House of Representatives. That is to say, States would have been instructed to manage an election using a suffrage that was the same as one used in their own domestic elections, with Congress given the power to regulate the election through legislation. Whether such an arrangement, recognizing diverse electorates, would have been as acceptable for the selection of the Presidency as it was for the selection of a state's own delegates is an impossible question to answer. Also impossible to answer is whether such a debate would have re-opened the debate about balancing the principle of an equality of States with a desire to give them an influence proportional to their representation. The Electoral College simply adopted the compromise agreed for the legislature as a whole; perhaps a national election would have given each state a the same number of electors but required that they be chosen by district. Such a solution would have been close to the electoral college apparently imagined by Hamilton in *Federalist* 68. But it is at least possible that Wilson did have in mind a genuinely national election. There would have been many practical problems to be overcome, and the only practical solution would surely have been to allow Congress wide latitude to manage such an election with its own legislation. If such was his meaning, it was not an idea that the Convention pursued.

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Virginia Plan [Resolutions] - Seventh Resolution (Executive Branch): Mode of Appointing Executive was debated on 01 June 1787

Wilson's proposal here replaced the idea of electing the executive in the national legislature with the idea of a separate body of electors that would choose (though not from amongst themselves). An element of popular election was introduced, though perhaps the intent here was more to create a wholly separate assembly rather than to make the election of the executive more democratic. As the subsequent debate suggests, this amendment was intended to distance the executive from the congress and preserve his independence, more than it was intended to introduce a greater element of democracy. And indeed, Williamson's objection to the amendment was precisely on the ground that it merely replicated the kind of relationship that voters already enjoyed with their state legislatures or with the national legislature. In suggesting the creation of a separate electoral college, Wilson was trying to grant the executive independence from the national legislature while at the same time avoiding making him a creature of the state legislatures. It was, as the Convention recognized, an extremely delicate issue and one that would colour reception of the Constitution. At this point, however, the Convention remained unconvinced, and voted to retain the idea of an executive elected by the national legislature -- apparently persuaded that the office of the executive would not be too much corrupted by this procedure.

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Virginia Plan [Resolutions] - Seventh Resolution (Executive Branch): Wilson's Proposal on Election Procedure was proposed on 02 June 1787

If state legislatures were not to have a role in choosing the executive magistrate, perhaps they would be less suspicious of the consolidation of power if they were able to remove him. The threshold suggested here is a relatively low one compared with the security with which the President was ultimately imbued. This proposal would have allowed the President to be removed by a majority vote in at least half of all state legislatures, and for any cause whatsoever (rather than the final, 'high crimes and misdemeanours') ---- though many details are unspecified. Over what time-scale would such requests have to be made, for example? While the proposal did not find favour with the Convention, it is illustrative of the ways in which delegates were negotiating the balance of power between the state and national government.

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Virginia Plan [Resolutions] - Seventh Resolution (Executive Branch): Dickinson/Bedford on Removal was proposed on 02 June 1787

If the executive magistrate were to be chosen by the legislatures, and especially for the term of seven years that had been agreed at this moment, then an alternative way to ensure that the magistrate did not become a creature of the legislative branch was simply to forbid re-election. The concern of this proposal, again, seems to have been to ensure that the executive magistrate did feel true independence from the legislature --- and would, in fact, reflect a proper separation of powers by being a truly independent branch of government. This proposal was clearly at odds with those arguing for a more accountable executive, whether that meant accountable to the national legislature or to the states. Democratic accountability, in the sense of a direct relationship with the people, does not appear to have exercised members of the Convention much at all at this stage.

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Virginia Plan [Resolutions] - Seventh Resolution (Executive Branch): Ineligibility Clause (Original) was proposed on 02 June 1787

Even if not removable by state legislatures, this proposal did provide for removal under certain circumstances -- though the details of procedure were not specified. Compared to the standard that made it in to the final constitution, this initial proposal set out the rather lower standard of 'malpractice or neglect of duty'.

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Virginia Plan [Resolutions] - Seventh Resolution (Executive Branch): Williamson/Davie Impeachment Wording was proposed on 02 June 1787

The discussion in the Committee of the Whole resulted in a proposal that kept in place the idea of an executive magistrate chosen by the national legislature, guaranteed his necessary independence by a relatively long term in office (seven years) and by ineligibility for a second term of service. Though the Committee had considered making the magistrate more accountable to the state legislatures and had considered an early proposal for an electoral college (aimed not at securing democratic accountability but rather even greater independence), these had been rejected at this stage.

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Virginia Plan [Resolutions] - Seventh Resolution (Executive Branch): Working Version was adopted on 04 June 1787

Franklin's proposal here would have given all states an equal voice in the choice of officers under the constitution (presumably including the executive magistrate -- at this point still to be chosen by the legislative branch), regardless of the size of the state, though they were not granted an equal voice in legislation. The logic of this is not clear, and the proposal was not taken further.

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Proposal for Consideration was created on 30 June 1787

This proposal is at odds with previous discussion on the chief executive. This clear statement would have made the executive directly accountable to the citizens of the United States, unmediated by national legislatures, state legislative houses or a special set of electors, and implied that the election would be controlled by the national government. It is perhaps not a coincidence that this proposal was made after the extended discussions about the way that the population of the United States should be represented in the legislative branch.

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version): Second Clause (Mode of Election) - Morris for Election by Citizens was proposed on 17 July 1787

The proposal for direct election of the executive magistrate was to fail immediately. In the summaries of the debate that are extant, it is clear that the members of the Convention speculated widely about the nature of such elections, worrying about the kinds of people that might be chosen, and wondering how the sheer scale of the United States would shape any electoral contest.

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version): Second Clause (Mode of Election) - Morris for Election by Citizens was debated on 17 July 1787

Although the Committee of the Whole had agreed to a proposal to limit the executive magistrate to one term only, so as to secure his independence from the legislature (and thereby implementing a well-understood principle of 'rotation in office'), such a measure could be read as giving the holder of the office too little incentive for best behaviour. These two ideas were simply in tension with one another, and here the Convention reversed its previous position, fearing a magistrate unconcerned about re-election more than one too eager for it.

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Motion to strike out ineligibility clause. was adopted on 17 July 1787

Having removed the bar on re-election, the convention then considered a proposal at the other extreme, the appointment of a chief magistrate 'during good behaviour'---that is to say for as long as the holder of the office wished to remain, assuming he was not removed under the provisions for impeachment. Again, the desire to grant the magistrate 'independence' was the principle behind such a proposal. The phrase 'during good behaviour' was one principally associated at the time with judicial appointments. This proposal failed, as did a subsequent one to re-open the question of the length of term without specifying any particular answer.

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version): Length of Term - McClurg/Morris for Good Behaviour was proposed on 17 July 1787

The views expressed in these speeches capture the range of opinions and the difficulties of resolving them. On the one hand, some members of the Convention favoured popular election, whereas some feared it; some favoured a choice by legislative bodies or the national legislature, but the mode of election had implications for their view on the length of term and the question of re-eligability. Members of the Convention considered the effects of different arrangements upon the behaviour of those in office, but their conclusions were supported by little more than competing speculations and assertions. That said, the role of the office was now becoming more sharply expressed by some as a guardian of the people. This was not a new view of the role of a chief magistrate. It had had its fullest expression in revolutionary writing in the 1774 pamphlet by Jefferson, 'A Summary View of the Rights of British America'.[1] There is a clear statement by Morris of two principles that would inform the eventual shape of the executive and its understanding in the early republic. The one was that the veto powers of the executive were meant to protect the people against an encroachment of their liberties by the legislative branch; the other was that a republic the size of the United States required a 'vigorous' executive---such vigour implied both relatively extensive powers and independence from the legislature it was supposed to be controlling. [1] https://www.wdl.org/en/item/117/

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version) was debated on 19 July 1787

The idea of a distinct group of electors, chosen by state legislatures, whose sole function would be to choose the executive magistrate had been considered by the Committee of the Whole and rejected, but was here proposed again. Again, the idea appears to have been to secure sufficient independence from the national legislative body. The idea of a separate group of electors enabled the state legislatures to be apportioned (in effect) a weighted voice dependent on the size of their populations, though this proposal was made before formulas for the representation of the states in the legislative branches had been agreed. The motion was clearly contentious, and eventually voted on in parts rather than as a whole -- the principle of electors, the principle of allowing state legislative branches to appoint them, and the way in which the size of states would be reflected being taken as separate questions. This allowed the first two principles to be accepted, while the formula suggested by Elsworth for reflecting state sizes was rejected. This effectively narrowed the point of disagreement over the next sessions to the question of how to apportion electors, and a clarification about the ineligibility of members of the national government themselves to be electors.

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version): Second Clause (Mode of Election) - Elsworth/Broom for Electors was proposed on 19 July 1787

Compared to the final version of the constitution, many elements of the choice of the President have yet to be adjusted. The formula agreed to here is crude, with no effort to provide for future elections, and the term of service of the magistrate is still six rather than the final four years. The chief magistrate at this stage could still have been removed for 'malpractice or neglect of duty'. But the principle that he should be chosen by a body of electors, specially selected for that purpose and paid compensation for their service, had been agreed. However, the Convention was soon to return to these questions.

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version) was adopted on 21 July 1787

Although the idea of an electoral college had been agreed only three days previously, here a move back to election by the Legislature was passed with only four delegations voting against it. Though there was debate on the motion and objections by Gerry and others, this switch suggests that at this point in the Convention the delegates were still extremely undecided between various possibilities for the election of the Executive. There was still no one plan which had convinced the assembled delegates, which allowed for this about face shortly after it seemed like an electoral college had triumphed. The basis for this motion was concern amongst some of the delegates that those who would volunteer or be chosen as electors would not be capable of undertaking the task and responsibility of choosing a candidate for President.

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version): Houston/Spaight for Appointment by the National Legislature was proposed on 24 July 1787

Wilson's proposal here introduced an element of chance to the selection of the chief magistrate, amid what appear to have become increasingly difficult disputes over almost every aspect of the election which had been agreed to this point. Aside from a classically-inspired use of the lot, this proposal represented an attempt to return to the idea of selection by the national legislature, and it is difficult to see why Wilson thought this proposal had a greater chance of success or was superior to proposals that simply allowed the national legislature to make the choice of executive magistrate.

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The Virginia Plan as amended in Committee [Resolutions] - Ninth Resolution (Working Version): Wilson's Motion was proposed on 24 July 1787

The Committee of Detail report returned to the idea of an executive chosen by the members of the national legislature, specifying that a ballot should be taken, and departing from the instructions they had originally been given on July 23rd. This seems to instead reflect debates in the Constitutional Convention on July 24th, 25th, and 26th, which had re-aired almost all of the issues concerning the selection and nature of the executive, and the motion of Houston and Spaight on the National Legislature which passed by seven votes to four. Even though James Wilson, the delegate who originally proposed removing reference to the National Legislature, was a member of the Committee, his position was not reflected in the report. Had this been the end of the matter, the debate would have rested close to where it began, with selection by the legislature.

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Report of the Committee of Detail was copied on 06 August 1787

The report of the Grand Committee on Postponed Questions reintroduced the idea of an electoral college and removed reference to executive election via the national legislature. It is notable that September 4th is a late date for it to resurface, especially as motions on the topic had been negatived three times in quick succession, without debate, in the latter part of August. However, it should be noted that both Daniel Carroll and Gouverneur Morris were members of this Committee; they were proponents of the electoral college and were responsible for the motions that had been negatived in August, so it appears that they had succeeded where James Wilson in the Committee of Detail had not. This is also when the election of the Vice President during the same process was introduced, allowing for the election of both to stem from the votes of the electoral college.

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Second Report of the Grand Committee on Postponed Questions was copied on 04 September 1787

The separation and independence of the Executive, Legislature, and Judiciary was a concept of utmost importance to the Framers throughout the course of the Convention, and here Gouverneur Morris suggests that it was the driving force behind their decision to replace the election of the Executive by the Legislature with the creation of an electoral college. Morris refers to the perceived dissatisfaction of the Convention delegates as a whole with the idea of electing using the Legislature, and suggests the Committee found it 'necessary' to ensure there was separation between the two. This fits neatly with the emphasis throughout the rest of the Convention on ensuring the Separation of Powers.

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Second Report of the Grand Committee on Postponed Questions: Fourth Clause was debated on 04 September 1787

The members of the Convention express considerable dissatisfaction with the proposal for the Electoral College as it stood at this point. Much of their objection has to do with the fact that the Senate was, at this point, to be the deciding forum if no majority emerged from the votes of state electors. Many of these objections would be removed by the final form of the Electoral College, but some more general philosophical objections were made at this point. The detail that the Vice-President did not need a majority vote but the President did, is one of the many ways that the proposal strained logical explanation. There was considerable worry expressed about how electors would act, though few at the Convention seem to have anticipated the organized, national campaign. In fact, such national organization meant that a profusion of candidates regularly frustrating any decisive decision within the Electoral College was not one of the problems that emerged in practice.

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Second Report of the Grand Committee on Postponed Questions: Fourth Clause was debated on 04 September 1787

There is no clearer statement than the one here that the idea of 'rotation in office' was linked in the minds of many at the Convention to the election of the President by the House of Representatives. Remove the choice from the House, and the requirement that the President be term-limited seemed much less urgent.

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Second Report of the Grand Committee on Postponed Questions: Fourth Clause was debated on 04 September 1787

Having emphasised the Separation of Powers in the decision of the Committee on Postponed Questions to bring back the electoral college idea, King and Gerry here successfully persuaded the delegates that members of the Legislature should not be able to become Electors, thereby severing another possible tie between the Legislature and the election of the Executive. This serves as an extra reinforcement of the importance of the Separation of Powers and the independence of the Executive to the delegates.

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Second Report of the Grand Committee on Postponed Questions: Fourth Clause - King/Gerry to Insert Federal Qualifications of Electors was proposed on 06 September 1787

Though the Senate was originally set to make the choice of President if the votes of the Electors were tied, this was switched to the House of Representatives on a motion from Sherman. The House was considered to be more democratic and less 'aristocratic' (as stated by Mason), and therefore this choice suggests that there was a recognition that the election of the President should be as much tied to the will of 'We the People' as possible, whilst still respecting the concerns of some amongst the delegates that the people as a whole would be under-informed and easily swayed.

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Second Report of the Grand Committee on Postponed Questions: Fourth Clause - Remaining Parts: Sherman to Replace Senate with House of Representatives was proposed on 06 September 1787

The process of electing the Executive was tidied up by the Committee of Style and subsequent minor alterations, until it resembled the form we can see here as Article II, Section 1 of the final draft of the Constitution. The process had been subject to multiple changes between its initial form in the Virginia Plan and the final form we see here, including a long period of time where there was to be no electoral college at all, but rather an election by the National Legislature. Encouraged in part by a desire for Separation of Powers, however, the final form creates an electoral college whose electors were chosen by State Legislatures, but could not be members of the Legislature. Those electors then were to vote for two persons, one not of their state; the winner of a majority of votes would be president, and if no candidate had a majority the House would choose between the top five candidates. In the event of a tie, the House would also have the power to choose the President. Each state was to choose a number of electors equal to the number of Senators and Representatives the state had in Congress, which lead to differences between the number of electors each state was entitled to. The adoption of this formula meant that the size and shape of the electoral college would be dependent upon decisions made elsewhere in the Constitution concerning the mechanisms to balance at a national level the influence of populous and small states. The use of the entire congressional delegation to allot electors, given the decisions made concerning the Senate, in which each state was to have an equal voice, meant that smaller states were over-represented in the electoral college. The arrangements for choosing and instructing the electors was left as a matter for the state legislatures; earlier proposals for directing a popular election were entirely dropped. In contrast to this silence on how electors should be chosen, the Constitution gives considerable detail about the process for election, directing that electors should not meet together as a group, but should rather meet in their separate states and then transmit the details of their deliberations to the Senate. The Constitution is written as if the electors in each state would vote in ignorance of the votes taken in other states, though even in the 1780s, it must have been obvious that there would be co-ordination and (covert even if not overt) campaigning on a national scale. The arrangements given here were subsequently amended by the Twelfth Amendment (1803) to separate the votes for President and Vice-President, allowing candidates to run together rather than, as in 1796, when Jefferson was elected as John Adams's Vice-President, resulting in a President and Vice-President from different parties. States did use the flexibility allowed by this system in different ways. In the 1796 election, the legislatures of Connecticut, Delaware, New Jersey, New York, Rhode Island, South Carolina, and Vermont simply appointed electors. The remaining states ran elections to choose electors, running either state-wide polls or elections by district, or (in the case of Tennessee) an even more complicated procedure. The temptation to persuade states to adjust their mechanism for choosing electors for partisan advantage meant that the 1800 election saw several changes. Most notably, Virginia switched from a system of appointing electors by district to a winner-take-all system. This move was rapidly copied by other states in subsequent elections and at the time of writing almost all states now award their electoral college places to electors from the party that wins a state-wide poll. In Thomas Jefferson's view, one could talk of the President being elected by 'the people' by 1816, in spite of the electoral college and the flexibility allowed to states. He wrote: the 'Executive [can be considered] more republican than the Senate, from it’s shorter term, it’s election by the people, in practice, (for they vote for A. only on an assurance that he will vote for B.) & because, in practice also, a principle of rotation seems to be in a course of establishment.'[1] (Washington's example of serving only two terms served as an example to other Presidents until the Twentieth Century. It is now enforced by a Constitutional Amendment written in response to Franklin D. Roosevelt's refusal to abide by this convention in 1940 and 1944). Though states retained the option to select electors in undemocratic ways, the pressure to adopt more republican modes of selection won out. [1] http://founders.archives.gov/documents/Jefferson/03-10-02-0053

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Constitution of the United States was copied on 17 September 1787