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Early efforts to reform the Electoral College

by Dr Nicholas Cole on 18 December 2017

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George McDuffie image from Wikipedia.

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Even those involved in its creation did not fully endorse the process by which the Electoral College had been created. Almost immediately after the Convention, Alexander Hamilton asserted publicly that the Electoral College was 'not perfect', while James Madison wrote in a private letter many years later that 'as the final arrangement of [the electoral college] took place in the latter stage of the Session, it was not exempt from a degree of the hurrying influence produced by fatigue and impatience in all such Bodies'. It stands out in the document as one of the more complicated provisions: complex quite out of all proportion to its apparent value. One scholar used its creation as the centrepiece of his argument that the details of process, and successful manipulation of process by participants in deliberative assemblies, are what dictate outcomes. It is no mystery that he should have chosen the creation of the Electoral College as his test case. It is an innovation adopted by the Convention with no British precedent (the examples of the election of certain European rulers by various categories of nobles being unsuitable models for America, and certainly unpersuasive parallels for the American electorate), and an innovation, too, that defies easy and simple justification.<sup>1</sup> It is one of the more confusing and multilayered compromises of the convention---bound up with debates over representative assemblies that now seem arcane and the compromise over the relative influence of the various and greatly differing states in the Union.

Yet it is easy to misquote and exaggerate Hamilton and Madison's criticisms. Hamilton goes on to reassure readers that while the Electoral College is not perfect, 'it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.' Madison, for his part, said that although the debate over the Electoral College was tired, rushed and impatient, the Convention had given in to its fatigue less so than other bodies.

Calls for reform are nothing new. They nowadays centre around the fact that the Electoral College weights the votes of the states unevenly, and in so doing reject the compromises that originally made the Federal Union acceptable to different states. Calls for reform in the early nineteenth century, however, did not centre around the idea of an unfaithfully represented 'popular vote', but rather on the high degree of latitude the Constitution had allowed states as to the process by which electors were selected, and in the unsatisfactory---at least to many---use of the House of Representatives to select from among the candidates if no single candidate achieved a majority of votes.

The limits of constitutional direction

The failure of the Constitution to provide any real guide as to how a state's presidential electors should be chosen meant that it took a long time for the modern state-by-state and winner-takes-all system to emerge as not only the most common but the overwhelming choice of American states.

Until 1832, a confusing mix of systems persisted, with states choosing electors in one of three principal ways. Choosing a slate of electors by state-wide vote (and giving the winning slate all of the electoral votes for that state) had become the most popular choice. Yet until 1832, Maryland still chose electors by district (resulting in a divided electoral vote) and South Carolina persisted in using the legislature to pick its presidential electors until the Civil War. The last state to do so was Colorado in 1876. Sometimes States used more complicated arrangements. New York had chosen its electors in its state legislature until 1824. For the 1828 and 1832 elections it allowed electors to pick two electors state-wide, the remaining electors being picked by congressional district. Thereafter a popular vote picked the electors statewide.

Even if by the time of James Madison's death a near uniformity of arrangements about how electors should be chosen state by state, this did not mean that all candidates were on the ballot in all states. Famously, for example, Lincoln did not even appear on the ballot in ten of the southern states in 1860. A divided opposition meant that Lincoln could capture only 40% of the 'popular vote' (a plurality) and yet win almost 60% of the electoral college votes.<sup>2</sup>

Some commentators have given the impression that the electoral college rapidly took on its modern form, and it is true that there was widespread progress towards involving the electorate directly in the choice of electors. That does not mean that the arrangements were regular. In the 1804 election, a majority of states picked their electors by some kind of popular vote---six states still allowing the legislature to choose, six selecting by state-wide vote, four dividing the state in to electoral districts, and Massachusetts selecting one elector for each congressional district and two by state-wide vote. But the switch to an election was not always final. The Massachusetts legislature made the selection for the 1808 and 1816 elections, for example, as did New Jersey's in 1812.

Calls for reform

This unsatisfactory state of affairs led to calls for reform. A deadlock of votes in 1800 had given rise to the Twelfth Amendment in 1803, which separated out election of the President and Vice-President, effectively endorsing the principle that the executive branch should be captured by members of one party. Joshua D. Hawley has argued that this amendment was intended to turn the President in to a figure with a direct popular mandate,<sup>3</sup> though this may well be overstating the Amendment's purpose, as well as the extent to which the Presidency had previously been an apolitical office. In any case, Congress did not take the opportunity to establish a direct popular election of the Presidency. A majority of states had allowed their legislatures to select the presidential electors in 1800, and even though that majority would be reversed in 1804, during the debate in Congress, members still spoke (as the members of the Convention largely had done) as if such electors could be understood as having been chosen by the people. Dispute focused on the detail of this system, not on calls for a more directly democratic mode of election.

Nevertheless, in the nineteenth century there were two reforms frequently discussed. One would have been to require states to hold a democratic vote. The other would have allowed the winning candidate to receive merely a plurality rather than a majority of votes. The latter aimed at removing any need for the House of Representatives to intervene in the outcome of an election.

In 1823 Madison responded to calls for reform in a letter to George Hay,<sup>4</sup> a Virginian and later Federal judge. According to the editor of Madison's papers, Donald O. Dewey, Madison principally favoured a [return to, at least for some states] selection of electors by Congressional district, the selection of statesmen as electors, and the selection of electors who were known to the electorate. He was disapproving of the winner-take-all system that had become so widely adopted, even though it was Virginia's adoption of this system that had helped Jefferson to victory in 1800. The Convention's oversight had been in failing to proscribe this set of arrangements, and he favoured an amendment that would have established district-by-district elections in the Constitution. But he rejected calls to allow a mere plurality of the vote to select the President. He also opposed reversing the twelfth amendment, thinking that votes for President and Vice-President ought to be separate.<sup>5</sup>

In December 1823, a Constitutional Amendment was proposed by a committee of Congress (championed by George McDuffie) that would have made both the selection of members of the House of Representatives and selection of electors uniform in all states, by requiring single-member districts to select both their House of Representatives member and an elector for the electoral college. States would also have retained two additional electoral votes, and these would have been awarded to additional electors appointed by the electors chosen in the districts. Rather than viewing an electoral college so constructed as an attempt to frustrate the will of the people, the committee emphasized that in their view that the American public were well capable of selecting the President, and spent a considerable time distinguishing the modern American public from the unruly democracies of the ancient world and the states of modern Europe. Indeed, they were far more concerned to ensure that the choice of President would under no circumstance devolve to the House of Representatives than on any other shortcoming of the arrangements.<sup>6</sup>

Madison seems to have shared the view that the mediation of democratic will through electors did not imply that the will of the majority would be frustrated. He (with some justification) suggests that the electoral college had been agreed late in the Convention, with the resultant 'degree' of 'harrying influence', and suggests that the Convention had always imagined (or at least, that most people voting for the electoral college had always imagined) that the American people would select electors by district.<sup>7</sup>

Aside from all other considerations, there perhaps a reason why neither Madison's proposal nor the one formally proposed in Congress could have been easily adopted. The Convention had set the number of electors for each state at the size of the congressional delegation---one for each member of the House and one for each Senator. Reformers seem to have assumed that the 'districts' to be used in the selection of electors would have to be the same ones as used for the House elections, which would have left two additional members to select. Madison proposes allowing these to be allocated to two of the districts within a state. The 1823 suggestion in Congress proposed allowing the electors selected in the district to choose the remaining two. While an apparently sensible compromise, Madison himself spotted the problem with it, in a letter to the author of the proposal in January 1824. He pointed out that some smaller states might have only one or two members of the House of Representatives, and that in the case of smaller states the Congressional proposal was not tolerable. He suggested a variety of solutions, ranging from multi-member districts to allowing the state legislature to fill the two additional places.<sup>8</sup>

It is noticeable that in the 1823 reforms proposed by George Hay, James Madison and George McDuffie did not suggest doing away with the Electoral College. Nor did they suggest doing away with the slight advantage given to smaller states. Nor did they view the creation of an electoral college as a primarily anti-democratic measure, but rather emphasized the choice of electors by the people as an expression of popular will. They did speak against the 'general ticket' or 'winner-takes-all' system as something that perverted the expression of the popular will and distorted narrow majorities in a particular state into what could be a perverse result.

The limits of early calls for reform

Modern critics of the Electoral College go further and would do away with the whole system, substituting a nation-wide popular vote. Perhaps there are five reasons why Hay, Madison and McDuffie did not.

Firstly, their focus was on the impropriety of selection either by the Federal Congress or (to a lesser degree) by state legislatures, and on the distortions introduced by the winner-takes-all system. Voting by district was a simple, familiar way to combat this. Secondly, they simply did not view the proper selection of electors as a particularly 'undemocratic' mode of election. The frustration of the popular will was being achieved by other means, not by the mere existence of the Electoral College. Thirdly, they did not see the small distortion introduced by giving smaller states an additional weighting as a particular concern. Rather, they saw it as a reflection of America's Federal system. Fourthly, while they could imagine directing the States to manage an election (as, indeed, the Constitution allowed Congress to do in the case of the House of Representatives), they do not seem to have imagined the Federal Government running its own election. For this reason, the mechanism of an electoral college, properly chosen in the states seemed unobjectionable, and allowed states to make and administer arrangements for the election. Fifthly, those who later called for reform saw the principal flaw in the arrangements agreed by the Convention not as the college itself but the likelihood that Congress might end up selecting the final candidate. Both in 1823, and in an earlier proposal, the main concern was to avoid this eventuality. When Thomas Jefferson commented on Hay's proposal, he focused entirely on that aspect of it.<sup>10</sup>

Faced with the 2016 result, in which for the second time in sixteen years a candidate has won the Presidency while 'losing' the popular vote, has been tempting for some to quote all of this out of context. Madison's comment on the creation of the electoral college is only partly fair. It is true that the Convention left many details unspecified, and perhaps this was due to the pressure of time. But it was equally due to the fact that there was considerable dispute over the rights of large and small states at the Convention, and the College was one part of the compromise.<sup>9</sup> One wonders how much appetite there really is even in 2016 to dismantle that compromise and view the American electorate as simply one political unit. If one took such a view of America with regards to the Presidency, should not similar questions be raised about the Senate? And one (or perhaps two) controversial election result(s) aside, the distortions of the Electoral College surely pale next to the democratic problem presented by the Gerrymandering of House electoral districts.

The failure of these early reform efforts is also instructive. The devil that will frustrate such attempts is in the details, and in their implications for the compromises that lie at the heart of America's unique Federal structure. Madison's own proposals for reform seem unlikely to have survived any extended debate. Any discussion of the Electoral College will, in the end, open the question of the nature of the Federal Union. America seems as unlikely to revisit such a fundamental question now as it has ever been.

As for Madison's quip suggesting that the Electoral College was created carelessly and in a rush, that too needs approaching with care. The selection of the President was hardly the most controversial matter discussed at the Convention, but it did receive attention repeatedly, and the principal dispute was between those who favoured a legislative choice and those who favoured the state-by-state selection of electors. The discussion became bound up with the broader dispute about how to balance the interests of large and small states, and the result that emerged was the same compromise, writ small, that the Convention adopted for Congress as a whole. Perhaps, reviewing the failure of the 1823 proposals for reform, it is possible to see too why the Convention did not specify a mode of election: it is a harder problem to solve in a uniform way than it first appears, at least while preserving the rest of the compromise and in a way that would have conformed to eighteenth-century electoral norms, and in a way that would have been been satisfactory in such diversely populated states. Even Madison and McDuffie failed to suggest a coherent, workable and acceptable reform.

  1. Alexander Hamilton in Federalist 68; James Madison to George Hay, 23 August 1823; William H. Riker, 'The Heresthetics of Constitution-Making: The Presidency in 1787, with Comments on Determinism and Rational Choice' in The American Political Science Review Vol. 78, No. 1 (Mar., 1984), pp. 1-16. On elections: In one sense, all elections before a universal franchise featured privileged electors, but in some cases the class of electors was very small indeed: see the Wikipedia article on Prince-Electors

  2. See wikipedia's listing of the results

  3. Joshua D. Hawley, 'The Transformative Twelfth Amendment' in William and Mary Law Review, Volume 55, Issue 4 (2014), pp. 1501--1586. 

  4. ;

  5. Donald O. Dewey, 'Madison's Views on Electoral Reform' in The Western Political Quarterly, Vol. 15, No. 1 (Mar., 1962), pp. 140-145. 

  6. Annals of Congress, House of Representatives, 18th Congress, 1st Session, p. 850-866. See pp. 864--6 for the text of the proposed amendment. 

  7. James Madison to George Hay, August 23, 1823

  8. James Madison to George McDuffie, 3 January 1824

  9. William H. Riker, 'The Heresthetics of Constitution-Making: The Presidency in 1787, with Comments on Determinism and Rational Choice' in The American Political Science Review Vol. 78, No. 1 (Mar., 1984), pp. 1-16. See also our own commentary on the events in the convention

  10. From Thomas Jefferson to George Hay, 17 August 1823