THE U.S. ELECTORAL COLLEGE: ORIGINS AND TRANSFORMATION, VARIANTS AND PROBLEMS

1. THE U.S. ELECTORAL COLLEGE: ORIGINS AND TRANSFORMATION, VARIANTS AND PROBLEMS Nicholas R. Miller UMBC LSE/VPP Talk May 6, 2008 Revised for POLI 323 September 10, 2008 http://userpages.umbc.edu/~nmiller/ELECTCOL.html

2. Overview of Talk • Outline the original design of, and expectations for, the Electoral College • Describe the rapid transformation of the Electoral College into the popular vote-counting mechanism that exists today • Identify criticisms of the Electoral College • Identify Variants of, and Alternatives to, the Electoral College • Analyze the EC and variants with respect to (i) voting power and (ii) election reversals. • The last is based on ongoing and incomplete research.

3. How the Electoral College Works in Practice • Instead of electing a President (and Vice President) in a single national election, • there are 51 separate state (+ DC) elections, • the winner in each state wins a number of electoral votes equal in number to the state’s total representation in Congress (total EV = 538), and • electoral votes are added to determine the winner of the election (270 required for election). • The result of adding up electoral votes across the states may be different from adding up popular votes across the states (“election reversal”, “wrong winner”, “reversal of winners”).

4. Electoral College Details • ME and NE do not award electoral votes on a winner-take-all basis (but rather on the basis of a Modified District Plan) so their electoral votes might be split (but in fact never have been). • Lurking beneath these electoral votes are real people (elected officials) called Presidential electors. • Candidates may be deprived of electoral votes by “faithless electors.” • Other methods of selecting Presidential electoral have been used in the past, sometimes resulting in split electoral votes. • If no candidate wins 270 electoral votes, because either • a third candidate wins some electoral voter or • there is a 269-269 tie), the election is “thrown into the House of Representatives” (which last happened in 1824). • Unpledged electors are sometimes elected (AL and MS in 1960).

5. Evaluations of the Electoral College • The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. . . . I venture somewhat further, and hesitate not to affirm that if the manner of it be not perfect, it is at least excellent. (Publius [AlexanderHamilton], Federalist 68): • Many subsequent evaluations (and the many proposed constitutional amendments) suggest a less favorable assessment of “the mode of appointment of the Chief Magistrate,” which has been variously viewed as: • part of a generally elitist and anti-democratic constitution; or • a last-minute jerry-built compromise; or • a well designed compromise among diverse considerations, or possibly • the embodiment of well-thought selection criteria.

6. Evaluations of the EC (cont.) • My own take on the Electoral College: • The original EC was a compromise among diverse considerations that was cleverly designed but had a fatal flaw that had to be (and was) corrected by constitutional amendment. • The EC was rapidly transformed into an institution quite different from its designers had intended. • So, even if you like the existing EC, you can’t really give credit to “the wisdom of the framers [of the Constitution].” • Likewise, even if you dislike the existing EC, you can’t really blame the framers. • The transformed EC has proved to be a serviceable institution but is problematic in a number of ways.

7. Origins of the Electoral College • The original “Electoral College” [the term is not used in the Constitution] was a compromise between two modes of election of the President: • legislative election, which (it was feared) would make the President subservient to Congress, and • national popular election, which presented formidable practical difficulties at the time and reopened the conflict between large vs. small states. • The perceived advantages of the Electoral College: • unlike Congress, the EC would perform a single task – i.e., cast votes for President -- and would then disband; and • unlike popular election, the relative power of large vs. small states could be compromised in the fine details of the EC (and public opinion could be refined through represention). • Legislative election was the default choice, so it is more accurate to say the Framers settled on the EC • as an alternative to legislative election, rather than • as an alternative to popular election.

8. The Original Electoral College Rules • Each state selects a number of “electors” equal in number to its total (House + Senate) representation in Congress (H + 2). • The legislature of each state determines the mode of selection of the electors from its state, the most likely alternatives being • election by the legislature itself, • popular election from districts, and • popular election on a state-wide “general ticket” [the almost universal practice for the last 175 years]. • Congress has the power to determine • when electors are selected (but Congress may only states a range of choices), and • when electors cast their votes (which must be the same day for all states). • Originally, Congress gave the states a window of about 30 days within which to select electors • Electors were originally required to • cast two votes for two different candidates, • at least one of whom had to be a resident of another state.

9. The Original Electoral College (cont.) • To be elected by the Electoral College, a candidate was originally required to receive • votes from a majority of electors and • more votes than any other candidate. • Given the double vote system, these requirements were logically distinct. • In particular, more that one candidate could receive the required majority • If no candidate met both requirements, the election was “thrown into the House [of Representatives].” • The House would choose • between the two (or more) tied candidates, in the event both (or all) received votes from a majority of electors, or • among the top five candidates, in the event no candidate received votes from a majority of electors. • Voting in the House is by state delegation, with each delegation casting one vote. • Balloting continues until some candidate is supported by a majority of state delegations. • In any event, the runner-up Presidential candidate would become Vice President.

10. Expectations Concerning the Original EC • This original Electoral College system was designed to operate in a non-partisan environment. • It therefore was hoped and expected that • typically there would be many potential Presidential candidates, • who would not declare themselves as such, let alone actively campaign for the office, and • electors would choose among these candidates on the basis of their character and connections, not party affiliation or policy promises. • Therefore, it was also expected that electoral votes would be widely scattered and the “House contingent procedure” would be needed “19 times out of 20,” so • big states would have the dominant role in “screening/nominating” candidates (in the EC), while • small states would have equal role in most final elections (in the House).

11. Expectations Concerning the EC (cont.) • It was generally hoped and expected that electors would typically be • popularly elected • from single-member districts (like most state legislators, delegates to the state ratifying conventions, members of the British House of Commons, and as was expected also for members of the new U.S. House); and • that they would be well-informed local notables who would act as representative trustees of their states and districts.

12. Duverger’s Law and Crackup of the Original Electoral College • These expectations did not anticipate the development of a national two-party system. • Duverger’s Law: Given politically ambitious candidates, single-winner elections produce (in equilibrium) two-candidate contests [by virtue of the “wasted vote” argument, etc.] and sustain a two-party system. • Given the development of a two-party [Federalist vs. Republican] system, the combination of the double-vote and runner-up-is-VP provisions of the original Electoral College turned out to be a fatal flaw.

13. The Election of 1789 • Not literally unanimous • Double-vote system • NC and RI had not yet ratified • NY failed to cast electoral votes Scattering of second votes • Fears that northerners wanted to make Adams President

14. The Election of 1792 • We see beginnings of the Federalist-Republican two-party system in the second (“Vice Presi-dential”) votes

15. The Election of 1796 • The first contested Presidential election: • Federalists: John Adams (MA) & Thomas Pickney (SC) • Republicans: Thomas Jefferson (VA) & Aaron Burr (NY) • “Nominated” by their respective Congressional Caucuses • Note the regionally balanced tickets. • Intra-Federalist maneuvering: • Hamilton (who had feuded with Adams) unsuccess-fully urged some Southern electors to vote for Pick-ney & anybody but Adams • However, some Northern electors learned this and withheld votes from Pickney (=> Ellsworth and others)

16. The Election of 1796 (cont.)[Electors =138; Electoral votes = 276, Required majority = 70]

17. The Election of 1796 (cont.) • The electoral vote outcome was very close: • Federalists won 71electors, all of whom voted for Adams, giving Adams the required majority of 70 for election as President. • Republicans won 68 electors, all of whom voted for Jefferson. • But the withholding of second votes from Pick-ney lowered his vote total to 59, dropping him to third place behind Jefferson, • So the defeated Republican Presidential candidate became Vice President. • Republican electors were even less resolute in following the “party line” in casting their second votes. • Burr had only 30 votes

18. The Election of 1796 (cont.) Sectionalism is evident, despite the sectionally balanced tickets. Many states did not select electors by popular vote.

19. Lessons from the Hazardous Game • Electors are expected to be party men. • “pledged electors” • However, Samuel Miles (Fed. PA) violated his pledge. • An angry Federalist supporter complained: “What, do I chuse Samuel Miles to determine for me whether John Adams or Thomas shall be President? No! I chuse him to act, not to think.” • State legislative elections (perhaps coming a year or more in advance of Presidential elections), become very important for politicians with national ambitions, because • legislatures chose how to select electors and may change the method for election to election; and • legislatures may choose to appoint the electors themselves • The party that controls a state legislature may not want to risk a popular for electors. • States using legislative election increased to 10 in 1800.

20. Lessons from the Hazardous Game (cont.) • And if a controlling party was confident it could win popular election, the mode of popular election (using at-large election rather than districts) could be manipulated to short-term party advantage. • Madison to Monroe (1800): • “All agree that an election by districts would be best if it could be general, but while ten states choose either by their legislatures or by a general ticket, it is folly or worse for the other six not to follow.”

21. Election of 1800 • Largely a repeat of 1796: • same candidates; • same battle lines. • However, the strategic implications of EC rules were better understood: • manipulation of elector selection; • danger of withholding votes. • Equally close as 1796 but tipping the other way. • Republicans win with 73 electors vs. 65 for Federalists.

23. Election of 1800 (cont.) • The Republicans (unlike the Federalists) failed to withhold one “Vice Presidential” electoral vote. • Counting of Electoral Votes before joint session of Congress: • Jefferson: 78; • Burr: 78; • Adams: 65; • Pickney: 64; • Jay: 1 • So the election was “thrown into House,” under the contingent procedure, • choosing between Jefferson and Burr only. • Burr did not chose to withdraw. • But if the four electoral votes from GA for Jefferson and Burr had been disqualified as invalid, no candidate would have received the required 70 electoral votes, so • the House could have chosen any of the five candidates as President. • Note that the single Federalist elector who voted for Adams and Jay could have voted for Adams and Burr, • in which case Burr would have been elected President and Jefferson would have remained Vice President.

24. Election of 1800 (cont.) • Until 20th Amendment (1933), the new Congress did not convene until late in the year following Congressional elections. • So the Presidential election was thrown into the “lame duck” House elected in 1798, which was controlled by the Federalists (though Federalists had lost control of the House elected in 1800). • Federalists generally supported Burr in order to deny Jefferson the presidency. • Several state delegations were internally deadlocked. • House deadlocked for 35 ballots. • Ultimately, a few Federalists abstained to end the deadlock on 36th ballot.

26. The 12th Amendment • After the 1800 fiasco, Congress proposed, and the states quickly ratified (in time for 1804 election), the 12th Amendment to the Constitution. • Electors now cast separate (single) votes for President and Vice President. • The required electoral vote majority for President (and for Vice President) is a simple majority of votes cast (= number of electors), which at most one candidate can achieve. • If no candidate receives the required simple majority for President, the House (still voting by state delegations) chooses from among the top three [vs. top five] candidates. • If no candidate receives the required majority for Vice President, the Senate (voting individually) chooses from among the top two candidates. • Early drafts of the amendment included a requirement that electors be popularly elected from districts, but this provision was later dropped. • The 12th Amendment remains the constitutional language governing Presidential elections.

27. The Transformation of the Electoral College • By the 1830s, the Electoral College, already formally modified by the 12th Amendment, had been further transformed into the kind of (essentially) automatic popular vote counting system that exists today. • This transformation • was also driven largely by the development of a two-party system, and • was brought about without any further constitutional amendments or (with one minor exception) change in federal law, • but rather by changes in state laws and party practice.

28. Elements of the Transformation • The way the rival parties first contested a Presidential election was to secure the selection of electors expected to cast electoral votes for their Presidential and Vice Presidential candidate. • Beginning even with the first contested Presidential election in 1796, elector candidates were therefore almost invariably “party men,” pledged (and faithful) to the (Presidential and Vice Presidential) nominees of their party. • Put otherwise, electors became party delegates rather that trustees of their states or districts [cf. regular delegates vs. superdelegates] • Once pledged and faithful electors have been selected, the prospective electoral vote for Presidential candidates is also known.

29. Elements of the Transformation (cont.) • In early elections, the mode of selecting Presidential electors was regularly manipulated by party politicians in each state, on the basis of partisan calculations. • By 1832, Presidential electors were almost universally selected by popular (vs. legislative) vote (and by much expanded electorates). • By 1836, the mode of popular election in every state was (following Madison’s strategic advice) the general ticket (or party slate), rather than election from districts (or by some kind of proportional representation). • This induced the almost universal “winner-take-all” rule for the casting electoral votes at the state level. • However, at the present time two small states (ME and NE) use the “Modified District Plan.”

30. Mode of Elector Selection

31. Mode of Elector Selection (cont.) • Why were state legislatures willing to give up the power to select Presidential electors? • The intensity of party competition declined after 1800. • Legislative appointment of electors was disrupting state legislative elections. • cf. willingness of state legislatures to ratify the 17th Amendment (popular election of U.S. Senators) • The lone holdout was South Carolina.

32. Mode of Elector Selection (cont.) • Why did election of electors by districts give way to election of electors at-large (usually on a slate or “general ticket”)? • Partisan strategic considerations • as expressed by Madison to Monroe in 1800 • More important: state strategic considerations • No matter what other states may do, each state could enhance its influence in Presidential politics by casting electoral votes on a winner-take-all basis. • cf. Florida’s consideration of district elections in the mid-1990s • There is no “equilibrium” until all states use the winner-take-all method. • However, this “equilibrium results in new balance of voting power that is much more favorable to the larger states, much more than counterbalancing the small state bonus in EV apportionment.

33. Elements of the Transformation (cont.) • Moreover, the two-party system bypasses the House contingent procedure at least “19 times out of 20.” • On this point, the election of 1824 (the second and last time an election was thrown into the House) was the “exception that proved the rule”. • The Federalist Party had collapsed and the Democratic-Republican Party was unchallenged. • Consequently there was no longer pressure for D-Rs to unite behind a single Presidential-Vice Presidential ticket. • Four candidates, all nominally belonging to the same D-R party, sought the Presidency. • Unsurprisingly, no candidate received a majority of the electoral votes and the election was thrown into the House (for the second and last time). • However, whenever there is a “serious” third-party ticket (especially one with a geographical base of support such that it may win electoral votes), the possibility than the election may be thrown into the House arises. • Moreover, since the 23rd Amendment (giving the District of Columbia three electoral votes) was ratified in 1961, the total number of electoral votes has been an even number (538), • so an electoral vote tie (269-269) is possible, and • an election might be thrown into the House even in the absence of a third-party candidate winning election votes.

34. “Almost Winner-Take-All” • By the 1830s, almost all states had moved to popular election of electors on an at-large or state-wide basis. • Most states used a general ticket system in which votes chose among party slates of elector candidates. Vote for one slate of electors: Democratic electors Republican electors • This effectively guaranteed that a state’s electoral votes would be cast on a “winner-take-all.” • However, in some states electors ran as individuals on a generalize plurality basis. Vote for no more than four elector candidates D1 R1 D2 R2 D3 R3 D4 R4 “Friends and neighbors” politics might result in a divided electoral vote from the state.

35. Duverger’s Law • Single-winner elections, especially conducted on the basis of Simple Plurality Voting, tend to produce and sustain two-candidate (and two-party) elections “in equilibrium.” • Conversely, parliamentary systems using proportional representation in large districts tend to produce and sustain multi-party systems. • In part, Duverger’s Law is driven by strategic voting by ordinary voters who are reluctant to “waste” their votes by voting for third candidates/parties that have no real chance of winning.

36. Duverger’s Law (cont.) • In much greater part, Durverger’s Law is driven by the strategic calculations of ambitious candidates and parties. • If a party splits and runs two (more or less clone) candidates, they will be spoilers against each other and throw the election to the other party. • This prospect of electoral disaster creates a huge incentive for even a highly factional party to unite behind a single candidate. • Conversely, if there three significant candidates or parties are contesting an election, there is a huge incentive for two of them “to make deal” under which one makes a strategic withdrawal in favor of the other (in return for something). • In general, each party in a competitive two-party system has a huge incentive to remain united and not split into rival factions that run candidates in general elections.

37. Duverger’s Law (cont.) • With respect to the Electoral College system, Duverger’s Law implies that (contrary to the Framers’ expectations) the House contingent procedure will be bypassed at least “19 times out of 20.” • Thus the Electoral College system is trans-formed into something still more favorable to large states than the Framers expected, i.e., • not only do large states gain more power in the first (electoral vote) stage (due winner-take-all electoral votes), but also • the second (House contingent election stage) stage (where small states have equal power) is almost always bypassed.

38. Duverger’s Law (cont.) • The “inverse” of Duverger’s Law implies that if one of the parties in a two-party system is greatly weakened, or is unable or unwilling to compete for votes effectively, the dominant party is very likelyto break apart, because the external threat that otherwise keeps it together is removed. • Consistent with this “inverse” principle, the totally dominant Democratic-Republican Party split into factions in the 1824 election, with the result that four (“serious”) candidates for President sought and won electoral votes. • So the 1824 election was “thrown into the House.”

39. The Election of 1824 • Initially, there were five prospective Presidential candidates (all Democratic-Republicans), “nominated” by their state legislatures and supported by their regions: • John Quincy Adams (Secretary of State) • John C. Calhoun (Secretary of War) • Henry Clay (U.S. Representative and former Speaker) • William Crawford (Secretary of the Treasury) • Andrew Jackson (Army General, hero of the Battle of New Orleans) • Thus 1824 was an essentially a non-partisan election, more or less of the nature that the Framers expected. • In due course Calhoun withdrew his Presidential candidacy and became the (more or less) consensus candidate for Vice President.

40. The Election of 1824 (cont.) • Adams represented the Northeast and was favored by residual Federalists. • Jackson represented the “West” and the “common man.” • Crawford was in poor health and was supported primarily by his home state of Georgia. • Clay was the obvious “compromise candidate” between Adams and Jackson, with much second preference support • He probably could have beaten either Adams or Jackson (and certainly Crawford) in a “straight fight.”

41. The Election of 1824 (cont.) Presidential election results (“first round”): Electoral Vote Popular Votes* Jackson 99 41% Adams 84 31% Crawford 41 11% Clay 37 13% Others 0 4% *Bear in mind that six states still appointed electors and that states that used popular election varied considerably with respect to the franchise.

42. The Election of 1824 (cont.)

43. The Election of 1824 (cont.) • The compromise candidate Clay was squeezed out of third place in the electoral vote ranking by Crawford. • Under the 12th Amendment, the House could chose only from among top three candidates. • Clay probably would have been elected president if • the House could still chose among the top five candidates; or • Crawford had not been a candidate (Crawford was a spoiler to Clay). • Even if Adams or Jackson had won the electoral votes cast for Crawford, Clay would have been among top three candidates. • However, if Jackson had won at least 32 of Crawford’s electoral votes, the election would not have gone into the House.

44. The Election of 1824 (cont.) • Clay had great influence in the House. • He detested Jackson and endorsed Adams. • Adams (just) won on the first ballot (24 state delegations): • Adams 13 • Jackson 7 • Crawford 4 • Adams subsequently appointed Clay Secretary of State. • Jackson and his supporters denounced the “corrupt bargain” between Adams and Clay.

45. The Election of 1824 (cont.)

46. Consequences of the1824 Election • Consistent with Duverger’s Law, the faction-alized Democratic-Republicans split into two rival political parties. • Adams and Clay formed the new National Republican (subsequently Whig) Party. • Jackson formed the new Democratic Party. • Two party competition has been sustained ever since (though with temporary splits in one or other party in individual elections). • No subsequent election has been thrown into the House. • Prior to the 1825 contingent election, the House adopted special rules for its conduct. • These rules remain in effect and would (presumably) by used in any future House election.

47. The EC as a Vote-Counting Mechanism • In 1845 Congress established a uniform nationwide Presidential election day (i.e., day for selecting Presidential electors). • On November 4, 2008, voters in each state will go to the polls and vote for either the Democratic or Republican (or possibly other) slate of elector candidates, who are pledged to their party’s (Pres. + VP) nominees. • With popular election of pledged electors, American voters may be forgiven for thinking they are actually voting directly for Presidential candidates (often there is little on the ballot to suggest otherwise). • In each state, the elector slate receiving the most votes is elected (with the exceptions noted for ME and NE). • The electors will meet in their state capitals in mid-December and cast their electoral votes as pledged.

48. Vote-Counting Mechanism (cont.) • Electoral vote tallies will be transmitted from each state capital to Congress and are counted before a joint session on January 5, 2009. • The President of the Senate [Vice President Cheney] will announces the vote and proclaim that ?? and ?? are the President-elect and Vice President-elect. • So in (almost invariable) practice, everything will be determined on election night in November, and the remaining steps are merely ceremonial; that is, TV prognosticators can • report the popular vote winner in each state, • add up the corresponding electoral votes, and • declare a President-elect.

49. (Alleged) Problems with the EC • The Voting Power Problem. Does the EC [or EU] give voters in different states [member nations] unequal voting power? • If so, the EC [EU] violates the criterion of “One Person, One Vote” (OPOV). • Which voters are favored and which disfavored and by how much? • The Election Reversal Problem. The candidate who wins the most popular votes nationwide may fail to be elected. • The election 2000 provides an example (provided we take the official popular vote in FL at face value). • The Partisan Bias Problem. Does the EC as a vote counting system favor one party over the other (at the present time or in times past)? • This is closely connected with the Election Reversal Problem. • The Battleground States Problem. The Electoral College focuses the Presidential election contest on a few “battleground states,” which get very disproportionate attention from the candidates and parties. • This is loosely connected with the Voting Power Problem. • Other Problems -- mere vote-counting may fail. • What if electors violate their pledges? • What about the House contingent procedure? • Americans have “no constitutional right to vote for President.”

50. EC Variants: The Apportionment of Electoral Votes • Keep the winner-take all practice [in 2000, Bush 271, Gore 267; in 2004, Bush 286, Kerry, 252] but use a different formula to apportioning electoral votes among states (All require a constitutional amendment.) • Apportion electoral votes [in whole numbers] on basis of House seats only] [Bush 211, Gore 225; Bush 224, Kerry 212] • Apportion electoral votes [fractionally] precisely proportional to population [Bush 268.96092, Gore 269.03908; Bush 275.67188, Kerry 262.32812] Translated outcomes take account of Duverger’s “mechanical effects” only (vs. “psychological/strategic effects”)