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LIVING MY GAP YEAR

Changing the Text: The Rise and Fall of the Electoral College.

Zuzu Tadeushuk

       There are many contested features of our American government, but perhaps the most bizarre and unnecessary system of them all is that of the Electoral College. Devised at the Constitutional Convention of 1787 and sanctioned in the original draft of the Constitution, this method of appointing the nation’s president was a settlement between various conflicting propositions which ranged from having Congress select the President to having the populace do so (“Cons. Convention and Ratification”). Instead, the Electoral College concentrates the power of election with neither government nor citizens, but in a handful of individuals acting as one-time Electors on behalf of their states. 

 

    When examining this system, it is important to understand the context it sprang from. At the inception of our nation, individual Americans had less influence in government than we do now—state legislators were at one point responsible not only for appointing Electors to the Electoral College, but also Senators to Congress, and were allowed to ordain the method in which their House Representatives were elected (Rakove 33). Though constitutionally states still hold the right to appoint Electors, it is impossible to imagine them exercising it (history.com). Nor do they any longer choose Senators: citizens do that, by popular vote. The only power, therefor, still vested in States to influence national politics is the decennial reapportionment of Congressional districts (Rakove 33). 

 

    So what changed that we the people have gradually gained political power that at the dawn of our nation we did not possess? The electorate of the nation grew as suffrage was expanded over the decades to include new sectors of the populace, and with it our feeling of entitlement to such rights as electing our own Senators and appointing our own Electors (history.com; Rakove 33). And yet one thing hasn’t evolved in tandem with this sociopolitical shift of consciousness to match our modern concept of democracy; and that is the Electoral College. With the exception of one small tweak made in the Twelfth Constitutional Amendment in 1804 that altered the procedure for selecting a Vice President, the Electoral College greatly resembles today what it did 226 years ago when the Constitution was ratified (US Const. am. XII). The trajectory of our democracy, however, and its current incarnation, are no longer congruent with the incarnation and the ideal that birthed the Electoral College. This legislative buffer between the populace and the office of President defies the principles of American democracy that characterize our values today, implicitly diminishing our influence in government and our voice as a society. This system no longer has a place in the ever-evolving organism that is the U.S. Constitution.

 

    The right to select our own head of state is at the core of the American identity, and yet we as citizens have never once, in our individual lives and in the history of the nation, actually voted for President. When we fill out a ballot every four years we are actually voting for the political party whose ‘slate’ of Electors we want appointed to that season’s Electoral College (history.com). Here’s how it works: as stipulated in Article II, Section 1 of the U.S. Constitution, each State is allotted a number of Electors equal to the total number of their delegates in Congress, Senators and House Representatives combined (art. II, sec. 1). On the matter of how these Electors are to be chosen, the Founding Fathers are less specific, writing only that an Elector may not be a member of Congress or a current federal employee. This leaves states at liberty to choose Electors “in such Manner as the Legislature thereof may direct” (US Const. art II, sec 1), which varies in application from state to state but in the majority of cases falls to the state’s political parties, who appoint notable party members, representatives, or local officials to their ‘slate.’ These men and women will become Electors only in the case that the candidate of the party who appointed them wins the majority of votes in that state on Election Day (National Archives, “Electoral College”). In most states, the candidate who wins a plurality gains all the Electoral votes for that state in what is known as the ‘unit rule;’ only Maine and Nebraska deviate from this method and appoint Electors by congressional district, reserving two Electors (the two ‘senatorial’ Electors) for the winner of the popular vote statewide (Longley and Dana 124; Archives, “Electoral College”). No federal law binds the Electors to honor the popular vote and cast their ballot for a specific nominee; some states have legislation that does so while others simply hold their Electors to party pledges, the violation of which is punishable in most cases by fine (Archives, “Electoral College”). Being close affiliates to one candidate or one party, however, it is rare that an Elector disregards the popular vote. Such individuals are known as ‘faithless Electors,’ and less than 1% of all Electors in the history of the nation ever voted faithlessly (Archives, “Electoral College”). 

 

    This rather cumbersome and convoluted process was initially adopted by the framers of the Constitution as a compromise between States of small population and those of large; between those favoring federal authority and those favoring state autonomy (history.com). Its intentions were numerous, but most notable among them were the goals of safeguarding the office of President from the consequence of ill-judged and uneducated choices the populace might make, and of affording greater representation to slave-holding states during election season than they would otherwise have had (history.com; Amar). The College’s function as an informed middle agent to make political judgements on the people’s behalf was surely a wise precaution during the eighteenth century, when modes of communication were primitive and slow and rendered large swaths of the country oblivious of political affairs. But the swift coalescence of national political parties by the turn of the nineteenth century helped rural citizens identify a candidate’s ideals by general acquaintance with the party that candidate hailed from, soon annulling this justification for the Electoral College (Amar). As for the latter justification, at the time of the adoption of the Constitution Southern states of the Union were considered to have smaller populations than Northern states, because their large constituencies of enslaved African Americans were barred from voting, and not even recognized under law as people (Amar). To increase their voice in Washington and defend their interests against the North, it was agreed that these states could count each slave as three fifths of a person, which boosted their censuses and hence their Electoral vote count. If the election of President had been achieved by the popular vote of citizens rather than the Electoral College, such States would have had less power to inaugurate the Presidents sympathetic to their cause (Amar). 

 

    As we can see, these two justifications for the Electoral College were delegitimized within a few decades of its inception by time and the course of history. Since then, there have been many attempts to disband the system. Politicians and scholars have dubbed it the likes of “historical anomaly” and “disaster for a democracy,” and as a former governor of Michigan asked, “if we really subscribe to the notion that ‘majority rules,’ then why do we deny the majority their chosen candidate?” (Mahler and Eder). In fact, according to a scrupulous 2001 issue of the Harvard Law Review, roughly one tenth of all Constitutional amendments ever proposed in Congress have sought to reform the Electoral College (2526). The most momentous such attempt took place after the election of 1968, when Nixon gained the Oval Office by an Electoral lead of about 36% while only winning the popular vote by a mere 7% (Archives, “Election Results”). The incongruence evident between these two figures sparked what came to be known as the Bayh Celler Amendment, named after the Senator and Representative who proposed it. The bill required that a candidate secure at least 40% of the national popular vote in order to ascend to the Presidency, and in the case that no candidate did, a rematch election would be held between the two highest tickets in the weeks immediately following (Crezo). Although it was approved by the House and the President, the Bayh Celler Amendment was stymied on the Senate floor and laid to rest with the end of the 91st Congress in January 1971 (Crezo). Subsequent attempts at reform have similarly been stalled by the formidable challenges intrinsic to the passing of Constitutional amendments in this country, a procedure which requires the approval of 2/3 of both houses of Congress, and ratification by the legislatures of 3/4 of the states (Chang). But change has also been obstructed by a few remaining arguments for the continued necessity of the Electoral College. As the authors of the Harvard Law Review summarized it, “supporters…contend that the [Electoral College] promotes federalism by balancing small and large states, encourages stability, discourages fraud, and forces candidates to wage national campaigns” (2526). I propose to disprove each of these points, with the help of the extensive literature on the subject. 

 

    The first cause, that of federalism, is one that is held to this day to be the crowning benefit of the Electoral College (Rakove 23, 33-37). Federalism, as defined by one political scientist, encompasses “the multifaceted political power relationships between governments within the same geographical setting” (Gerston 5). That is to say, in the United States it represents the way our federal government in Washington D.C. interacts with our various state governments, and juggles power with them. This is a tentative equilibrium at best, and some political scholars make the argument that it is stabilized by the presence of the Electoral College, as the College provides bolstered representation to small states by virtue of the ‘senatorial bump’ that lessens the densification of citizens per Elector in states with lower populations (Rakove 23). The great fallacy of the federalist justification of the Electoral College, however, lies in the weight it places on state size, on the apparent importance of reconciling the interests of small states with those of large states. It relies on the assumption that these interests differ; that citizens feel some identification with the size of their state and that this sentiment informs their vote. “If,” writes Pulitzer Prize winning historian Jack N. Rakove, “states and their citizens are to receive somewhat different electoral weight as a function of the senatorial bump, some persuasive legitimating idea other than the fact that the Framers endorsed the idea should be available to justify that calculus. No such principle exists. Or rather, if such a principle does exist, it was only persuasive at the original moment of constitutional foundation, as a necessary cost of reaching agreement, but its rationale disappeared as soon as agreement was reached, never to operate convincingly thereafter” (34). In other words, political conditions pre-Constitution did not reflect political conditions post-Constitution, as the ratification of the Constitution reconfigured the entire nation, transforming it from a loose confederation of competitive sates to an organized, legitimized federation (“Const. Convention and Ratification”). Hence a state’s political interests before the text was ratified could not reflect its political interests after, and any logic used to negotiate the constitution itself was irrelevant once the document was active. As Revoke explains, it can be expected that delegates of smaller states (indeed, of any states) went to the Constitutional Convention of 1787 with the determination to protect their interests and maximize the influence of their constituents on the process of designing the nation, of drafting its founding text. But once the nation was designed, so to speak, and an agreement among the states reached, wouldn't the system they contrived to reach that agreement be rendered obsolete to the new system they’d hatched, and to the living under the new system (Rakove 34-35)? Indeed it would, Rakove concludes, writing that “the size of a state would never again effect the political behavior of voters or representatives after the constitution was adopted” (34). Instead, what would effect the political behavior of voters were elements more representative of our individual situations as citizens: namely, our occupation, income, ethnicity, religion, and so on (Rakove 34). If our considerations when voting are in no way related to the fact of the state we live in, “then a system that allows the existence of states of different sizes to justify an inequitable rule for weighting votes on the basis of the accident of residence should not be deemed superior, in principle, to one that would rest on the modern democratic principle—usually labeled one person, one vote— that gives every vote the same value” (Rakove 23).

 

    The second and third arguments, that the Electoral College “encourages stability”  and “discourages fraud” (Harvard Law Review 2526), are joint claims and can be refuted jointly. It is a fact widely accepted that the system of the Electoral College protects the integrity of the election process by dividing it into fifty small, independent elections. It achieves this end by isolating vote count to each state separately, helping officials guard against, and locate, any fraud or error that may occur (Uscinski). In the case that a popular vote count is questioned, as it was in Florida in the 2000 presidential race between Al Gore and George Bush, officials are spared conducting a grueling nation-wide recount, which would allow additional opportunities for corruption (Uscinski). This same purpose could be served by other means, however. In fact, the very legislation dismantling the Electoral College could also see that this benefit of the College be continued: the text of the requisite amendment to revise Article II Section 1 of the Constitution could require that States tally their votes individually and that the governor of each state “sign and certify, and transmit sealed to the Seat of Government of the United States” (US Const. art. II, sec. 1) that state’s results in the very manner that Electors are currently required to submit their votes. I believe this would maintain the regulatory benefits of the Electoral College while still divorcing its decisive power.

 

    Lastly, the Electoral College, it is argued, ensures that all corners of the country get campaign attention, that “residents in states with smaller populations [are] not ignored” (Mahler and Eder) by Presidential hopefuls. It also guarantees that candidates will not dismiss the particular needs and issues of rural minorities to focus solely on urban areas with higher concentrations of voters. If this is a claim, however, that a lack of the Electoral College will allow candidates to discriminate in selecting areas to visit and issues to address, this is a sin the College itself perpetuates. Under the current system, candidates spend most of their time and resources appealing to ‘swing states,’ which are generally less densely-populated, and whose disproportionately large and unpredictable Electoral votes a candidate depends on for access to the Oval Office (Mahler and Eder). As Jack Rakove explains, “far from diffusing political activity across the extended republic, electoral logic allows it to be narrowly targeted to key communities and particular interests within them” (23). The recent development of refined polling methods has even further empowered campaigns to narrow in, with great specificity, on the areas that for them, in a particular time against a particular opponent, are most competitive—and most Electorally vital (Rakove 36). How is one evil superior to another? At least if candidates were elected by popular vote they would be forced to base their political platforms on solutions to nation-wide concerns rather than community-specific issues, and would be more likely to try and please a majority rather than cater to a minority in order to ‘game the system’ (Rakove 36). 

 

    In addition to all of this, and in accordance with all of this, I would like to add a thought of my own. What stands out to me most about the injustice of the Electoral College is the ‘unit rule’ by which it is usually implemented. The winner-take-all basis of appointing electors to my mind has the effect that the Electoral College, far from checking the opinion of the populace, exaggerates it. To give what is generally a majority of forty-eight to sixty-eight percent of voters a guaranteed 100% of their state’s representation in the Electoral College is to automatically superimpose the opinion of those few who tipped the scale away from equilibrium onto the thirty-two to fifty-eight percent of voters who’s opinions tended toward another candidate. Leveling a varied political landscape into a sweeping uniformity, this system denies those of the minority opinion their voice in the most blatant and institutionalized manner—and no matter what the defense or intent or justification, this act has no business existing on the soil of a democracy, let alone claiming relevance in the name of democracy.

  

    Perhaps worse yet is what occurs in the cases when the Electoral College does not serve to exaggerate the popular vote. In a freak glitch of electoral function, it occasionally happens that contrary to emphasizing the popular vote, the Electoral College defies it. There have now been five elections in the history of the United States in which the winner of the electoral vote lost the popular vote to his opponent. In the races of 1824, 1876, 1888, and 2000, Presidents John Quincy Adams, Rutherford Hayes, Benjamin Harrison, and George Bush, respectively, all gained the Oval Office in such bizarre fashion (Archives, “Election Results”). The fifth case of the Electoral College defying the popular vote is found of course in our last and most recent Election of 2016, which awarded the presidency to Republican nominee Donald Trump despite Hillary Clinton’s lead of 200,000 in the popular vote (Italiano). By dint of the Electoral College, our nation is now subject to a man known for his prejudice and volatility, and we face the prospect of losing part or all of the social progress we have fought to achieve over the past few decades. The majority—however slim—of the populace voted against this outcome, but the system for electing president that was designed 229 years ago to prevent uneducated voters from being “swayed by populist demagogues” (Brennan) has monumentally backfired, and given us just that.

 

    There exists one meaningful current movement to depart from the Electoral College. It lies in the National Popular Vote Interstate Compact, which would not amend the Constitution but rather circumvent it (Chang). This proposed compact takes effect when a number of willing states “cumulatively possessing a majority of the electoral votes have enacted [it]” (Chang), and would require all member states to contribute the entirety of their Electoral votes to the Presidential candidate who wins the national popular vote, regardless of how their states vote, thereby assuring that the winner of the Electoral vote is also the winner of the popular vote (Chang). As of November 2016, eleven states have signed this agreement, with a cumulative total of 165 electoral votes, and New York is one of these (nationalpopularvote.com). Whether this agreement is permissible under the Contract Clause of the Constitution forbidding “any Treaty, Alliance, or Confederation” (art. I, sec. 10) between states has yet to be seen, but proponents contend that it is (Chang). 

 

    Other alternatives to the Electoral College exist as well, but none so effective as the definitive amendment of the Constitution. Though the path to amendment ratification may be arduous, long, and bitter, it is ultimately the only sure and stable solution to this impairment to the workings of democracy. If equality and liberty are truly the fundamental tenets of our nation, let them be practiced fully and mindfully by our populace, that we may see our wills and ideals reflected honestly in our governing figure. As Thomas Jefferson in 1820 epitomized it, “I know no safe depository of the ultimate powers of the society but the people themselves, and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power” (Founders Online). This is the true realization of the democratic vision.

Gouache by Me, 2015

 

Works Cited:

Amar, Akhil Reed. “The Troubling Reason the Electoral College Exists.” Time, Nov 10 2016. time.com/4558510/electoral-college-history-slavery/

Brennan, Jason. “The Electoral College is Anti-Democratic—and That’s a Good Thing.” Marketwatch, Nov 8 2016. www.marketwatch.com/story/the-electoral-college-is-anti-democraticand-thats-a-good-thing-2016-09-12            

Chang, Stanley. “Updating the Electoral College: the National Popular Vote Legislation.” Harvard Journal on Legislation, 44 Harv. J. on Legis. 205,  2007. ezproxy.sunyrockland.edu:2051/hottopics/lnacademic/. Accessed 13 Nov. 2016. 

“Constitutional Convention and Ratification, 1787–1789.” Office of the Historian, Bureau of Public Affairs. history.state.gov/milestones/1784-1800/convention-and-ratification. Accessed 9 Nov. 2016. 

Crezo, Adrienne. “The First (and Last) Serious Challenge to the Electoral College System.” Mentalfloss, Nov 6 2012. mentalfloss.com/article/13012/first-and-last-serious-challenge-electoral-college-system

Founders Online, “From Thomas Jefferson to William Charles Jarvis, 28 September 1820.” founders.archives.gov/documents/Jefferson/98-01-02-1540. Accessed 15 Nov. 2016.

Gerston, Larry N. American Federalism: a Concise Introduction. M.E. Sharpe, Inc., 2007. pp 1-7.

Harvard Law Review. “Rethinking the Electoral College Debate: The Framers, Federalism, and One Person, One Vote.” Vol. 114, no. 8, 2001, pp. 2526–2549. www.jstor.org/stable/1342519. Accessed 12 November 2016.

History.com Staff, “The Electoral College.” A+E Networks, 2010. www.history.com/topics/electoral-college. Accessed 8 Nov. 2016.

Italiano, Laura. NewYorkPost. “The One Scenario that Could Still Get Hillary into the White House.”  Nov 9, 2016. nyp.st/2fnb1bq. Accessed 10 Nov. 2016.

Longley, Lawrence D, and James D. Dana. “The Biases of the Electoral College in the 1990s.” Polity, vol. 25, no. 1, 1992, pp. 123–145. www.jstor.org/stable/3235022.    

Mahler, Jonathan, and Steve Eder. “Many Call the Electoral College Outmoded. So Why Has It Endured?” New York Times, 11 November 2016. p P8.

National Archives and Records Administration, Washington DC. “Historical Election Results.” www.archives.gov/federal-register/electoral-college/scores.html#1824. Accessed 9 Nov. 2016.

- - -. “US Electoral College,” www.archives.gov/federal-register/electoral-college/electors.html. Accessed 9 Nov. 2016.

Rakove, Jack N. “Presidential Selection: Electoral Fallacies.” Political Science Quarterly, vol. 119, no. 1, 2004, pp. 21–37. www.jstor.org/stable/20202303. Accessed 11 Nov. 2016.

Uscinski, Joseph E. “There's a Strong Case to Be Made for Electoral College.”                 NapaValleyRegister, 9 Nov. 2016. napavalleyregister.com/news/opinion/editorial/guest-editorials/there-s-a-strong-case-to-be-made-for-electoralarticle_92bd3877-4476-5f5e-980f-649ca9867e67.html. Accessed 10 Nov. 2016.