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Today (19th December 2016) the members of the Electoral College will meet in their respective state capitols and cast votes for the President and Vice-President of the United States. It is certain that they will elect Donald Trump.
Hillary Clinton 'won' the 'popular vote' -- that is to say that more votes were cast for electors promising to vote to her in all of the States than were cast for Trump. The Electoral College, however, does not weigh the votes of each member of the electorate equally. Smaller states are over-represented, as they are over-represented in Congressional delegations. In addition, a winner-takes-all system in almost all of the states means that winning the most votes in a given state brings all of the electoral votes.
Trump's unlikely candidacy, and the fact that he will be only the fifth President elected to office without winning a majority of votes cast nation-wide (see here) has brought more scrutiny on to the role of the Electoral College.
We published a guide to the moments in the Convention that will help you to understand its creation immediately after the 2016 election. What we did not do on that occasion was to compare and contrast what was said at the Convention with the arguments given by Alexander Hamilton in the suddenly famous essay Federalist 68, originally written for the electorate of New York during the debates over ratification. It is worth remembering that in 1787-8, the electorate had little idea what had been discussed at the Convention, the records that we now take for granted being secret.
In that essay, Hamilton noted that the Electoral College had received little criticism from Anti-Federalists. That much is true. Those who opposed the Constitution tended to view the Senate as far more dangerous than the Presidency, and since it appeared that the President would have to consult the Senate in most cases, they focused their attention upon the expected inadequacies of that body.
However, the Federalist was a thorough collection, and the Electoral College was an innovation that required explaining.
Hamilton did not dwell in any way on the advantage given to the smaller states in the Electoral College, nor on the advantage given to slave-holding states, whose white electorates were given an advantage by the Three-Fifths Clause, and whose candidates dominated the early Presidency. The Federalist dwelt on these contentious matters only when essential. In a muddled way, those points were made by some at the Convention, mostly in the context of more democratic propositions, but it was not a major point of contention. For the most part, those who now see merit in that feature of the institution are indulging in retrospective justification.
The New York Constitution of 1777 provided that a Governor be elected by the freeholders of the state,<sup>1</sup> but it was not the only option for America's republican governments, even at the hight of the Revolution. The 1776 Constitution of Pennsylvania (otherwise a model of democratic government for the time) had a President chosen by the legislature;<sup>2</sup> similar arrangements were in place in New Jersey,<sup>3</sup> South Carolina,<sup>4</sup> North Carolina,<sup>5</sup> Virginia,<sup>6</sup> Maryland,<sup>7</sup> and Georgia.<sup>8</sup> A President chosen by the Federal Legislature would hardly have been out of keeping with the state constitutions of the time.
The Convention rejected such a choice, however, fearing (as our Commentary Collection makes clear) that a person chosen in such a way would be too much the creature of the legislative body. They might have considered giving votes directly to state legislatures, but instead substituted the electoral college. In this context, as Hamilton makes clear, the principal consideration was not who the electors should be, but rather who they should not be. As Hamilton puts it:
They have not made the appointment of the President to depend on any preexisting bodies of men, who might be tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the President in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the election will at least enter upon the task free from any sinister bias. Their transient existence, and their detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen States, in any combinations founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty.<sup>9</sup>
Of more interest in recent debates has been what Hamilton says in this essay about the Electoral College as a check against a demagogue. Did the Founders intend that these electors could set aside the results of an election? It is easy to see why some have read Hamilton this way:
It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place.
But Hamilton also says that:
Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.
A modern election could hardly have been imagined by Hamilton. The Constitution itself left the choice of electors up to the states themselves to decide, at a time when elections could be violent or, to prefer the more polite language of the day, 'tumultuous'. Certainly, the Convention itself spent far more effort and time debating how to insulate the election of the President from other legislative bodies than it spent thinking about how to insulate the Electoral College from the electorate. Its principal concern seems to have been to have prevented the possibility of bribery---either bribery of the President by his electors or the bribery of electors by the President. And how could a national election have been implemented? Every state had its own qualifications for electors, and the Convention showed no desire to interfere with such arrangements; the spectre of slavery and, simply, the different attitude to property qualifications and the appropriate division of electoral districts within a state, together made the idea of a national, one-person-one-vote election for the President difficult in practice.
But it was not impossible to imagine. Gouverneur Morris suggested language that would have allowed for it on 17th July. The ensuing debate is one of the more revealing moments of the Convention and reveals deep confusion about the nature of the representative assembly that the Constitution would create. In short, was the House of Representatives to be trusted as representative of the will of the American people or not?
The difficulties of such an election were never fully explored by the Convention, which alternated instead between various versions of the Electoral College and simple selection by the National Legislature. If anything, the creation of the Electoral College was the more 'democratic' of the two; it at least opened the door to selection of electors by the electorate at large, if the states themselves chose that option. Indeed, the very earliest proposal for the Electoral College bypassed the state Legislatures and instructed that the electors be chosen by districts created by the Federal Government, though exactly who should draw these districts and decide the qualifications for voting were left unclear (the implication of the text is that this would have varied by state, though whether linked to the qualification for some other election or not is unstated).
The language in the Constitution itself, which was curiously specific about the manner in which votes should be cast and transmitted, is reminiscent of the provisions of the 1777 Constitution of Vermont, which provided that:
The Supreme Executive Council of this State, shall consist of a Governor, Lieutenant-Governor, and twelve persons, chosen in the following manner, viz. The Freemen of each town, shall, on the day of election for choosing representatives to attend the General Assembly, bring in their votes -for Governor, with his name fairly written, to the constable, who shall seal them up, and write on them, votes for the Governor, and deliver them to the representative chosen to attend the General Assembly; and, at the opening of the General Assembly, there shall be a committee appointed out of the Council and Assembly, who, after being duly sworn to the faithful discharge of their trust, shall proceed to receive, sort, and count, the votes for the Governor, and declare the person who has the major part of the votes, to be Governor, for the year ensuing. And if there be no choice made, then the Council and General Assembly, by their joint ballot. shall make choice of a Governor.<sup>10</sup>
It is true that several at the Convention spoke at the Convention of the evils of democracy, and that Hamilton repeated some of this concern in Federalist 68. It is wrong, however, to view the electoral college as a body that was intended, first and foremost, as a check against the democratic will. On the contrary, it was a body that let the Convention avoid making the final say about how the President would be chosen, avoid reconciling or engaging with the problem of varied electorates in the different states, and which left wide latitude to the state legislatures, although with a significant impetus towards a democratic choice: the state legislatures themselves were not given a direct vote, and would have to justify their choice to their own electorates.
The power and legitimacy of the Electoral College was always limited. The Convention did not create a new and alternative representative assembly. Instead, the arrangements for the Electoral College expressly prevent the members from meeting and co-ordinating their votes. In that way it is a body that, as Hamilton says, is 'opposed to cabal, intrigue, and corruption'. Even if a plan were hatched to use the Electoral College in some sinister way, the members would be forced to cast their votes without any certainty that other conspirators had not betrayed the plan---an uncertain prospect even in the modern age, and still more so without modern communication. Hamilton puts great stock on the 'detached situation' of members of the electoral college. It greatly hinders the kind of scheming and bargaining that might influence a representative assembly. Yet nor was the College given the final say if the result failed to result in a majority for a particular candidate. Such a circumstance would require deliberation, and for that purpose the College was unsuited by design.
It is both tempting and fashionable to suggest that the Electoral College has never worked as designed, and that it was always intended as an anti-democratic institution. The truth is perhaps more complicated. It was intended to provide a moment of calm at the end of what was expected to be an occasionally tumultuous process. The Convention never spoke at length about the possibility of the College defying the popular will. Perhaps they should have given the matter even more thought than they did; they did not fully explore all of the ideas presented to them. Even Hamilton's piece in Federalist 68 emphasized that as far as the choice of President was concerned, the Convention had 'referred it in the first instance to an immediate act of the people of America.' Perhaps he chose for the purpose of this essay to assume that the legislative bodies of the states represented the will of the people, or perhaps he thought that they would feel a great pressure to defer (by their own choice or by the mechanisms they instituted) to the will of their electorates.
Such criticisms, though, seem to imagine that the members of the Convention had greater hopes for the Electoral College than the evidence will bear. What the members of the Convention seem to have believed is that they had created a mode of election that would not be susceptible to bribery and that would make it clear to any President that he was not dependent upon the will of Congress for his office. In that, they appear to have succeeded.
The image shows the 2016 Electoral College map, from https://commons.wikimedia.org/