On November 2, the oddities of our presidential electoral system produced another near miss. Although George W. Bush received 3.5 million more votes than did John Kerry, a shift of fewer than 60,000 votes in Ohio would have given Kerry enough votes in the electoral college to make him president. Had that occurred, Bush would have had a unique place in our political history, as the only man to become president in a popular election that he lost and then to lose the presidency in an election in which he received more votes than his opponent.
As George C. Edwards tells us in Why the Electoral College Is Bad for America, such near misses have been remarkably frequent. He shows that on sixteen occasions before 2004 a shift of 75,000 votes or less in key states would have given the presidency to the candidate who finished second in the popular vote; six times, a switch of less than 10,000 votes would have done the trick. After four other well-known elections (1824, 1876, 1888, and 2000), a candidate took office as president despite his failure to win the popular vote. When presidential elections are close—as they seem to be about half the time—there is always a serious chance that the candidate who wins the most votes will not end up in the White House.
That, of course, is an important reason why many Americans have long favored getting rid of the electoral college or changing its most objectionable features, such as the “unit rule,” which gives all of a state’s electoral votes to the winner of that state’s popular vote.1 Elections, after all, are mechanisms for determining the preferences of the people. But the electoral system called for in the US Constitution assembles those preferences in such a way that the will of the majority can be thwarted.2 Not surprisingly, then, more than five hundred constitutional amendments to change the system have been introduced into Congress since 1816, and they have been supported by diverse political leaders, including Andrew Jackson, Richard Nixon, and Jimmy Carter—each of whom was a candidate in a disputed or “near miss” election.
The electoral college is, in fact, our most unpopular political institution. For more than fifty years, public opinion polls have indicated that between two thirds and three quarters of the American people favored replacing the electoral college with direct, national elections: “There is little question,” reported the Gallup organization in 2001, “that the American public would prefer to dismantle the Electoral College system.” In 1976, even Wisconsin’s presidential electors made clear their unhappiness with the electoral college; after casting their state’s ballots for president, they passed a resolution calling for the abolition of the institution in which they had just participated.
George Edwards, the editor of Presidential Studies Quarterly and Distinguished Professor of Political Science at Texas A&M University, shares their sentiments. His book methodically presents the case for eliminating the electoral college and replacing it with national popular elections. With excellent descriptions of how the electoral system actually works, it is the most cogent and up-to-date criticism I have read.3 Its title, however, is somewhat misleading: the book is less about the harm that the electoral college inflicts on the nation than it is about the deficiencies of the institution itself.
The deficiencies are not hard to spot. Some are procedural, including the problem of “faithless electors,” which arose briefly this fall when Richie Robb, a Republican elector from West Virginia, let it be known that he might not vote for George Bush even if West Virginia did. Although the Founding Fathers probably did intend to permit electors to form their own judgments about presidential candidates, the electoral college, since its inception in 1787, has been a messenger system rather than a deliberative body: the only role of electors is to cast ballots for the candidates to whom they are pledged. Yet very occasionally an elector has strayed, and in 1960 there was even a screwball plot by some electors to deny the presidency to the “labor Socialist nominee” Kennedy, and to make Harry Byrd of Virginia the president instead. In the end, only six unpledged electors from Alabama and eight from Mississippi, as well as a single Republican elector from Oklahoma, cast their votes for Byrd.
No faithless elector has ever determined the outcome of an election, but it could happen: the laws that prohibit independent voting by electors, on the books in more than a dozen states, are likely to be unenforceable. Had the last election ended in an electoral college tie (which some experts were predicting) and had Richie Robb voted for someone other than George Bush (West Virginia has no law against independent voting), the legal tangle would have far exceeded Bush v. Gore in complexity.
As Edwards correctly notes, however, the procedural weaknesses of a system that depends on electors adhering to a pledge are small in comparison to more fundamental flaws. Most importantly, the electoral college violates the principle of political equality central to modern conceptions of democracy. The allocation of electoral votes to the states (giving every state one electoral vote for each of its senators as well as for each of its members in the House of Representatives) guarantees that the votes cast by people living in small states will count for more than the votes of those living in large states. Wyoming, for example, has one electoral vote for every 170,000 residents while California has one for more than 600,000 residents. This “small state advantage” is sometimes compounded by another built-in flaw: since the size of a state’s congressional delegation is adjusted to match its population only after the decennial census, relatively fast-growing states are always underrepresented in the electoral college.
The principle of “one person, one vote” thus does not govern in presidential elections. Yet most Americans believe that principle to be both fair and integral to democracy; as Edwards shrewdly points out, no contemporary politician would publicly claim that the votes of some citizens ought to be worth more than the votes of others. The principle of “one person, one vote,” moreover, has been part of US constitutional law since the 1960s, when it was endorsed by the Supreme Court as a guide for drawing the boundaries of congressional and state legislative districts. “The weight of a citizen’s vote cannot be made to depend on where he lives,” declared Chief Justice Earl Warren. Yet that is precisely what happens in our most important elections.
The departure from democratic principles can become even more extreme in the event of a “contingent” election, which takes place when no candidate for president has a majority of the electoral vote. If that occurs, the Constitution requires that the president be selected from among the top three vote-getters by the House of Representatives, where each state delegation will have one vote. (This procedure was last invoked in 1824, when the House of Representatives ignored Andrew Jackson’s plurality in the popular vote and made John Quincy Adams president.) Had there been a need for a contingent election this past November, Wyoming, with half a million people, would have had the same influence as California, with 35 million; the president could have been chosen with the support of states representing less than a third of the nation’s population. In modern times, we have come closest to contingent elections in 1948 and 1968 when regionally based third-party candidates, Strom Thurmond and George Wallace respectively, won almost enough electoral votes to prevent any candidate from gaining a majority. Throwing the race into the House of Representatives was, in fact, Thurmond’s express aim, since he hoped that by doing so he could cut a deal that would slow the desegregation of the South and the enfranchisement of African-Americans.
The “contingent elections” mechanism has had few defenders (even James Madison, one of its authors, thought it was a failure), but the electoral college itself, over the years, has been defended by many politicians, pundits, and political theorists. As Edwards rightly observes, however, modern supporters of the electoral college have generally chosen not to directly engage with the criticism that the institution violates our conception of political equality. They make their case instead by insisting that the electoral college has other distinctive virtues and provides significant benefits to the country. Edwards is at his best when he is dissecting those claims and demonstrating how little solid evidence lies behind them.
He begins by rejecting the notion that in conceiving our electoral system, the Founding Fathers were following a “coherent design based on clear political principles.” In fact, the Founding Fathers had much difficulty deciding how the president should be chosen, and throughout the summer of 1787, they kept changing their minds. (A useful table in Edwards’s book succinctly details the weekly back and forth on this issue.) Many believed that Congress should choose the president, but others feared the president would then be beholden to Congress and to the cabals that would inevitably form to promote presidential candidacies. Not only Madison but James Wilson and Gouverneur Morris (both from Pennsylvania) favored direct, popular elections, presumably by the same electorate that voted for other offices. But opponents worried that the country was too large and its regions too various for the people to actually become familiar with different candidates.
Then too there was the omnipresent shadow of slavery. As Madison noted,
There was one difficulty…of a serious nature attending an immediate choice by the people. The right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes.
Madison’s language was as elegant as the truth was harsh: national popular elections were not going to happen because they would not give the slave states as much power as they sought in selecting presidents. White Southerners wanted the electoral strength of their states to reflect their slave populations—which would not have been possible with direct elections, since slaves obviously would never be given the vote. It was, however, possible in an electoral system that linked a state’s voting strength to its representation in Congress—since slaves counted as three fifths of a person in apportioning seats to the House of Representatives.
The primary advantage of the electoral college, in the eyes of the Founding Fathers, was that it lacked the defects of either popular elections or selection by Congress. James Wilson indicated that the electoral college was “the second choice of many delegates though it was the first choice of few.” Remarkably little was said in the Constitutional Convention about the positive virtues of the electoral college or even about how the complicated mechanism would actually work; the framers made no claims about the electoral college protecting the small states or promoting federalism. The report of the final drafting committee, presented during the last days of the convention in September 1787, urged its adoption entirely because of the dangers of other methods. Edwards approvingly cites the conclusion of the constitutional historian Jack Rakove that the electoral college “was cobbled together nearly at the last minute and adopted not because the framers believed it would work, but because it was less objectionable” than the alternatives. The electoral college was a rough compromise among tired men who needed to bring their work to a close and who knew that George Washington would be the first president anyway.
The "unit rule" is not a constitutional requirement: states could decide to divide their electoral votes in proportion to the popular vote (as Colorado considered doing this year) or by district (as Maine and Nebraska now do). As became evident as early as the 1790s, however, the logic of party competition will tend to drive majority parties in any state to favor the "winner take all" allocation of electoral votes. Colorado's experience in 2004, when a proposal calling for a proportional allocation of electoral votes was soundly defeated in a referendum, makes clear the difficulty of a state-by-state path away from "winner take all." ↩
The Constitution does not use the phrase "electoral college"; that usage became common only after 1800 and first appeared in federal law in 1845.↩
It replaces (although with far less historical content) The People's President: The Electoral College in American History and the Direct Vote Alternative, revised edition (Yale University Press, 1981), by Neal R. Peirce and Lawrence D. Longley. Why the Electoral College Is Bad for America is dedicated to Longley and contains a foreword by Peirce.↩
The “unit rule” is not a constitutional requirement: states could decide to divide their electoral votes in proportion to the popular vote (as Colorado considered doing this year) or by district (as Maine and Nebraska now do). As became evident as early as the 1790s, however, the logic of party competition will tend to drive majority parties in any state to favor the “winner take all” allocation of electoral votes. Colorado’s experience in 2004, when a proposal calling for a proportional allocation of electoral votes was soundly defeated in a referendum, makes clear the difficulty of a state-by-state path away from “winner take all.” ↩
The Constitution does not use the phrase “electoral college”; that usage became common only after 1800 and first appeared in federal law in 1845.↩
It replaces (although with far less historical content) The People’s President: The Electoral College in American History and the Direct Vote Alternative, revised edition (Yale University Press, 1981), by Neal R. Peirce and Lawrence D. Longley. Why the Electoral College Is Bad for America is dedicated to Longley and contains a foreword by Peirce.↩