Nicholas R. Miller POLI 325 November 26, 2012

1. The Electoral College:How Does It Work in Practice?Why Do We Have an Electoral College?How Did It Come To Work the Way It Does?What Can We Do About It? Nicholas R. Miller POLI 325 November 26, 2012

2. How the EC Works in Practice • Instead of electing a President (and Vice President) in a single national election on Presidential election day, • we have 51 separate state (+ DC) elections, • in which voters (incorrectly but reasonably enough) think they are voting directly for a Presidential/Vice Presidential ticket. • the plurality winner in each state (except ME and NE) wins all of the state’s electoralvotes (“winner-take-all”) • which are equal in number to the state’s total representation in Congress, • i.e., its House seats + 2 • plus DC has 3 electoral votes, so • total EV = 538, and • these electoral votes are added up to determine the winner of the election, • with 270 required for election. • Thus in practice (at least 95% of the time), the EC is merely a vote counting system that • takes the popular votes in each state, • automatically translates them into nationwide electoral votes, and • declares a winner on the basis of electoral votes.

3. Implication of the EC in Practice:“Battleground”/“Swing” States • The principal strategic implication of the EC in practice is that it creates battleground (or swing) states, because • it matters only which party ticket carries a state, • and not what the margin of victory or defeat is. • Hence states that are expected to be close become “battlegrounds” while other are substantially ignored. • Today (frequent and relatively accurate) state polls make it easier to identify battleground states. • Until a decade or two ago, there were relatively few state (as opposed to national) polls. • Contemporary campaign resources (especially TV on local channels and cable services) ads can be both • focused on particular states, and • can moved from one state to another, in contrast to • party organization rooted in states and localities in the 19th century, and • national TV advertising (mid- to later-20th century).

4. More Esoteric EC Details (cont.) • Lurking beneath electoral votes are real people called Presidential electors, • for whom voters actually vote for on Presidential election day, • who are actually elected on Presidential election day, and • who actually cast the electoral votes (about six weeks later).

5. More Esoteric EC Details (cont.) • Underlying the “winner-take-all” system is the fact that (in almost universal practice) Presidential electors are elected not individually but on statewide party slates (“general ticket system”). • The Constitution gives state legislature the power to determine how their state’s electors are selected. • A variety of methods other than winner-take-all for selecting Presidential electors have been used by some states in the past, which could often produce split electoral votes from a state. • Indeed, at the present time, ME (since 1972) and NE (since 1992) do not award electoral votes on a winner-take-all basis, • but rather on the basis of the Modified District Plan.

6. Esoteric Details (cont.) • Party nominees may occasionally be deprived of electoral votes by “faithless electors,” • who cast electoral votes in a way that contradicts their “pledge” to support their party ticket, and • in a way that does not reflect popular vote in the state • and produces a split electoral vote from a state. • If no candidate wins 270 electoral votes, either • because a third candidate wins some electoral votes or • because there is a (mathematically possible) 269-269 tie between two candidates, the election is “thrown into the House of Representatives” (which last happened in 1824), • where voting by state delegation (one delegation — one vote), • and the House ballots repeatedly until one candidate is supported a majority of state delegations.

7. Evaluating the Electoral College • Today, as a rough generalization, • “liberals” mostly criticize the Electoral College and advocate its replacement by a national popular vote, • while “conservatives” mostly oppose a national popular vote and defend the existing Electoral College. • These attitudes were perhaps reinforced by the 2000 “election inversion.” • However, in the mid-20th century “liberals” mostly defended the existing Electoral College system, which they viewed as having features that • enhanced the voting power of major constituencies of the New Deal, • which counterbalanced the rural and conservative advantage • in the malapportioned House of the that era, and • In the malapportioned Senate of every era. • Their fondness for the EC may have been slightly restored by the 2004, 2008, and 2012 elections.

8. Evaluating the Electoral College (cont.) • My own take on the Electoral: • 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 the 12th Amendment to the Constitution in 1804. • The original EC established a selection system • that was designed to operate in a non-partisan environment, but • did not operate satisfactorily once political parties formed to contest Presidential selection. • 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.

9. “Problems” with the EC in Practice • Ittypically produces a disparity between popular and electoral vote proportions, which • almost always exaggerates the winner’s margin, for example Popular VoteElectoral Vote 2012 Obama 52% 332 Romney 48% 206 • But is this really a problem?

10. “Problems” with the EC in Practice (cont.) • It is said to “disenfranchise” voters in non-battleground states. • It is based on an apportionment of electoral votes that entails a small state advantage with respect to the. • It (arguably) produces a large state advantage resulting from the (almost universal) winner-take-all system of casting electoral votes. • Most important, it produces election inversions (or “reversals of winners,” “wrong winners,” “EC misfires,” etc.) in which • a candidate who wins less than a plurality of the popular vote • is elected on the basis of electoral votes. Popular VoteElectoral Vote 2000: Bush (R) 47.87% 271 Gore (D) 48.38% 267 1888: Harrison (R) 47.80% 233 Cleveland (D) 48.63% 168 1876: Hayes (R) 51% 185 Tilden (D) 48% 184 1960(?): Kennedy (D) ????%303 Nixon (R) ???? % 219

11. Problems with Details of the EC • Unpledged or faithless electors might determine the outcome of the election. • State legislatures can manipulate the manner of selecting electors. • Colorado Proposition 36 in 2004 (Democratic supported initiative) • Republican efforts in CA in 2008 and PA in 2012 • If a state decides to select electors by district, the districts may be gerrymandered. • A state legislature might decide to appoint electors. • There is “no constitutional right to vote for President” (or even Presidential electors). • The most problematic feature of the Electoral College is Contingent Procedure (when an election is “thrown into the House”). • We have little understanding of how this would work in practice. • State equality regardless of population appears to be unsupportable (especially today, e.g., CA vs. WY) • A President would not be selected until about two weeks before Inauguration Day (if then).

12. Why Do We Have an Electoral College? • The answer goes back to 1787 and the framing of the U.S. Constitution. • The charge to the Constitutional Convention was to revise and strengthen the Articles of Confederation. • Under the A of C, the only central government institution was Congress. • Each state legislature appointed its Congressional delegates. • Each state delegation had one vote. • A 9/13 supra-majority was required for substantive matters. • 13/13 unanimity was required to amend the A of C. • Congress had very limited powers; in particular, • It could not lay and collect taxes, and • It could not pass laws that directly exercised its powers. • In both respects, Congress had to rely on the cooperation of state legislatures. • There was no national executive or judiciary.

13. Why Do We Have an Electoral College? (cont.) • The Constitution • expanded the powers of Congress and • allowed Congress to exercise its powers by passing laws that bound individuals directly, and • that would be executed by a national executive (President), who also had other independent powers, and • that would be enforced by a national court system. • Given the much stronger powers of Congress under the Constitution, it was hoped that the executive (and judiciary) would “check and balance” the “naturally predominant” legislature.

14. Designing The Original Electoral College • Designing the mode of selecting the President was one of the most difficult tasks that confronted the framers. • Their most famously difficult task was designing the scheme of representation for a new national legislature. • The difficulty in the legislative case lay in the fact that most delegates knew exactly what they wanted, but different delegates wanted different things: • small-state delegates wanted to preserve the principle of state equality, while • large-state delegates wanted state representation proportional to state population. • In contrast, the difficulty in the executive case was that most delegates were not at all sure what they wanted, • though the conflict between small states and big states was still relevant.

15. Designing The Original Electoral College • The menu of options for Presidential selection: • Selection by states, • but this would be too much like the Article Confederation; • Selection by the Congress, • which was the “default option” found in both VA and NJ plans. • But many feared it would make the President too dependent on and (if eligible for re-election) subservient to Congress. • How would a bicameral Congress (as provided for by the “Great Compromise”) elect a President? • Selection by some kind of popular election, • which was advocated primarily on “separationist” grounds, i.e., as a means of making the President more independent of Congress, but • it presented many practical difficulties. • Some kind of mixed system, which might distinguish between • a first round of selection (“nomination”) and • a second round of selection (“election” or “runoff”), and • might use “intermediate electors.

16. Designing The Original EC (cont.) • The Electoral College proposal was put together by the Committee on Postponed Matters over a period of a few days and accepted by the Convention (with one modification) within the last week or so of the Convention. • The perceived advantages of an Electoral College of intermediate electors: • unlike Congress, the EC would perform a single task – i.e., cast votes for President -- and would then disband, so • the President would be subservient to neither Congress nor the Electoral College; and • unlike popular election, the EC • avoided difficult questions about the extent of suffrage, and • allowed a compromise between the large vs. small states through its fine details, and • and public opinion could be informed and refined through representation. • Since legislative election was the default choice, 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.

17. The Original Electoral College Rules • Each state is to select a number of “electors” equal in number to its total representation in Congress. • The legislature of each state is to determine the mode of selection of its electors. • Each elector is required to cast exactly two equal and unranked votes • for two different candidates (vs. cumulative/approval voting), • at least one of whom had to be a resident of another state. • Once cast, the electoral votes are transmitted to Congress, to be counted before a joint session of Congress. • To be elected President by the EC, a candidate must receive • votes from a majority of electors and • more votes than any other candidate. • Given this double vote system, these requirements were logically distinct. • In particular, more that one candidate could receive the required majority.

18. The Original Electoral College (cont.) • In the event that • no candidate is supported by a majority of electors, or • two (or more) candidates with the required majority are tied, • there is to be “runoff election” [the contingent procedure] in Congress • among the top five electoral vote recipients, or • between the tied candidates. • The Committee proposed that the runoff be in the Senate. • The Convention considered changing this to the House or to Congress as a whole by joint ballot. • It ended up changing the locus of the runoff to the House, voting one vote per state delegation. • Election by the House requires support by a majority of state delegations.

19. The Fatal Flaw in the Original Electoral College • However, the Committee was concerned that some electors might “throw away” their second votes. • It was believed a second office had to be at stake to induce electors to take their second votes seriously. • For this reason (only), the office of Vice President was proposed. • The Vice Presidency was “introduced only for the sake of a valuable mode of election which required two to be chosen at the same time,” • which largely explains the awkward and largely impotent place this office occupies in the overall constitutional scheme. • This turned out to be a miscalculation that produced a fatal flaw in the original EC, • and created what historian Richard McCormick has called a “hazardous game” of Presidential selection.

20. The Electoral College: An Example THE ORIGINAL ELECTORAL COLLEGE BEFORE THE 12th AMENDMENT AND USING THE PROVISIONAL APPORTIONMENT OF HOUSE SEATS House Size = 65 Number of Electors = 65 + (2 × 13) = 91 Number of Electoral Votes = 2 × 91 = 182 Maximum Vote Any Candidate Can Receive = 91 (one from every elector) Required Majority = 46 (one vote from a majority of electors) If no one gets 46 votes or if there is a tie among those who do: Required Vote in House = 7 In any event, the runner-up becomes Vice President [Note: these numbers were never actually used.]

21. Expectations Concerning the Original EC • This original Electoral College system was designed to operate in an expected (or at least hoped for) non-partisan environment. • It therefore was 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 vote for the two best of 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 contingent procedure would be used “19 times out of 20” (in George Mason’s estimate), 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/runoff elections (in the House).

22. Expectations Concerning the EC (cont.) • However, James Madison (a “big-state” representative and advocate) thought/hoped that big state electors would coordinate their electoral votes so as to keep the election out of the House (where small states would have the advantage). • It turns ot that Madison, not Mason, was correct in his expectation, • but not for the reason he gave. • It was generally hoped and expected that electors would typically be • popularly elected • from single-member districts, and • that they would be well-informed local notables who would act as representative trustees of their states and districts.

23. The Hazardous Game • But there were problems from the very start. • From the outset, electors (and those who selected them and everyone else) thought of a presidential election, not as an occasion to cast two votes for two worthy presidential candidates, but as an occasion to elect a preferred Presidential- Vice Presidential ‘ticket.’ • In the very first election of 1789, it was widely agreed that • George Washington should be the first President, and • John Adams should be the first Vice President. • So electors were expected to cast one vote for Washington and one vote for Adams. • But note how this expectation was precarious: • If just one elector were to cast one vote for Adams and one vote for anybody but Washington, Adams would be elected President and Washington would be relegated to the Vice Presidency. • On the other hand, if every elector did in fact cast one vote for Washington and one for Adams, there would be an electoral vote tie, sending the election to the House.

24. Schattschneider’s Law • More serious problems in 1796 arose when Washington retired and the first contested Presidential election took place. • The framers’ expectations did not anticipate the development of a national two-party system. • Schattschneider’s Law: if you create a large popularly elected legislative body, • party caucuses will arise in the legislature, and • political parties will develop in the electorate. • Caucuses and parties are organized attempts to win by concentrating votes (through a bloc vote [in the legislature] or nominating process [in elections]) on a few motions or candidates, • They arise because ambitious politicians find it expedient to conspire with others to win these contests. E. E. Schattscheider, Party Government (1942), Chapter 3

25. Schattschneider’s Theory of Party Formation • We start with a pristine legislature that • is elective (though perhaps with less than universal suffrage) and • operates under majority rule. • Because it is pristine (i.e., unsullied by political organization), its votes tend be dispersed. • A legislative caucus: a subset of members who agree to • caucus before every vote, • agree on a common position, and • always cast a bloc (concentrated) vote. • Concentrated votes typically beat dispersed votes, so • the caucus can expect to win given • a multi-alternative choice with plurality rule, or • a binary (e.g., yes/no) choice with majority rule • due to the unearned increment in politics.

26. Schattschneider’s Theory (cont.) • Caucus organization and counter-organization • caucus expansion • a minimal winning coalition • the size principle (Riker) • Majority vs. Minority caucus -- options for minority: • break up majority (“a heresthetical Riker move”); or • transform the minority caucus into a political party (a “conspiracy of politicians”) • that nominates candidates for office (concentrate votes). • Party counter-organization: • the socialization of conflict. William H. Riker, The Theory of Political Coalitions (1962) William H. Riker, The Art of Political Manipulation (1986) [“heresthetics”] E. E. Schattschneider, The Semisovereign People (1960)

27. Schattschneider’s Theory (cont.) • Majority vs. minority party -- options for minority: • break up majority (“wedge issues”); and/or • more effectively mobilize (its portion of the) electorate; and/or • expand the electorate • examples: • Jacksonian Revolution • 15th Amendment • British suffrage • apparent exceptions • women's suffrage • black disenfranchisement in South • Party formation and party competition takes legislative conflict “to the country”: • the simplification of alternatives • “Democracy is between the parties, not within the parties."

28. Duverger’s Law • Duverger’s Law: If you have single-winner elections, you get (in equilibrium) two political parties, i.e., • two rival organized attempts, each trying to concentrate votes on a single candidate. • 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 (or tactical) voting by ordinary voters who are reluctant to “waste” their votes by voting for third candidates/parties that have no real chance of winning the single office at stake.

29. Duverger’s Law (cont.) • In much greater part, Duverger’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 factionalized party to unite behind a single candidate. • Conversely, if there are three significant candidates or parties are contesting an election, there is a huge incentive for two of them to “make a 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. • With respect to the Electoral College system, Schattschneider’s Law + Duverger’s Law implies that (contrary to the Framers’ expectations) the House contingent procedure will be bypassed at least “19 times out of 20.”

30. The Hazardous Game: 1796 • Schattschneider: “Jefferson was blocked in the cabinet, therefore he went to the country to start a backfire” • to found the Republican (or Democratic-Republican) Party, • which nominated a single Presidential/Vice Presidential ticket to oppose Hamilton and the Federalists, and then • nominated party men (not independent and thoughtful trustees) as candidates for elector positions. • The first contested Presidential election: • Federalists: John Adams (MA) & Thomas Pickney (SC) • Republicans: Thomas Jefferson (VA) & Aaron Burr (NY) • They were “nominated” by their respective Congressional Caucuses. • Each party nominated elector candidates pledged to vote their party’s candidates.

31. The Hazardous Game:1796 (cont.) • Intra-Federalist maneuvering: • Hamilton (continuing to feud with Adams) unsuccessfully urged some Southern electors to vote for Pickney & anybody but Adams • However, some New England electors learned about this and withheld votes from Pickney. • Republican lack of discipline: second votes of their electors were widely dispersed. • The electoral vote outcome was very close: • Federalists won 71 electors, 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 Pickney lowered his vote total to 59, dropping him to third place behind Jefferson, • so the defeated Republican Presidential candidate became Vice President, • while Burr won only 30 votes.

32. Lessons from the Hazardous Game • Electors were expected to be party men, • who “always voted at their party’s call, and never thought of thinking for themselves at all”; • i.e., “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.” • Pledges must extend to second votes. • 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 from election to election; and • legislatures may choose to appoint the electors themselves.

33. Lessons from the Hazardous Game (cont.) • A party that controls a state legislature may not want to risk a popular election for electors. • States using legislative election increased to 10 in 1800. • And if a controlling party is confident it can win popular election, the particular mode of popular election can be manipulated (e.g., to winner-take-all) to short-term party advantage. • Jefferson 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.”

34. The Hazardous Game: 1800 • Largely a repeat of 1796: • same candidates (except one Pickney replaced by another); and • same battle lines. • However, the strategic implications of the EC rules were (even) better understood: • manipulation of elector selection; and • danger of dispersing second votes. • The election of 1800 was as close as 1796 but tipped the other way. • Republicans won 73 electors vs. 65 for Federalists. • The Republicans (unlike the Federalists) failed to withhold one “Vice Presidential” electoral vote. • Jefferson: 73 • Burr: 73 • Adams: 65 • Pickney: 64 • Jay: 1

35. The Hazardous Game: 1800 (cont.) • But the original EC rules did not distinguish between “Presidential” vs. “Vice-Presidential” electoral votes. • So the election was “thrown into House,” under the contingent procedure, • choosing between the tied candidates Jefferson and Burr only. • Burr did not chose to withdraw. • 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 immediately been elected President on the basis of electoral votes (without a House election) and • Jefferson would have remained Vice President. • Until 20th Amendment (1933), a newly elected Congress did not convene until late in the year following Congressional elections, • so the 1800 Presidential election was thrown into the “lame duck” House elected in 1798.

36. The Hazardous Game: 1800 (cont.) • The lame-duck House was still controlled by the Federalists (55-50), though Republicans controlled the House elected in 1800, • but the Federalists did not control a majority of state delegations. • Republicans controlled 8 state delegations. • Federalists controlled 6 state delegations. • Two state delegation were equally split. • There were 16 state delegations, so 10 votes were required for election. • Each delegation would decide how to vote by majority vote within the delegation. • Evidently, all Republican representatives supported Jefferson as the intended Presidential candidate. • Likewise, all Federalist representatives supported Burr, in order to deny the presidency to more formidable Jefferson. • The two internally tied delegations had to abstain. • For 35 ballots, the House deadlocked: Jefferson 8 and Burr 6 with 2 abstentions. • Ultimately, the four Federalists within in the tied delegations abstained, resulting in Jefferson’s election on the 36th ballot.

37. 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.

38. The Transformation of the Electoral College • By the 1830s, the Electoral College, already formally modified by the 12th Amendment that accommodated a two-party system, had been further transformed into the kind of (essentially) automatic popular vote counting system that exists today. • This transformation • was 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.

39. 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). • South Carolina was the lone hold out. • By 1836, the mode of popular election in every state was (following Jefferson’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.”

40. 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. the willingness of state legislatures to ratify the 17th Amendment (popular election of U.S. Senators) • Why did election of electors by districts give way to election of electors at-large (usually on a slate or “general ticket”)? • In general, the advantage of concentrating votes. • Partisan strategic considerations, • as expressed by Jefferson 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. • There is no “equilibrium” until all states use the winner-take-all method. • It turns out that this “equilibrium” results in a new balance of Electoral College voting power that is more favorable to the large states, more than counterbalancing the small-state advantage in apportionment of electoral votes.

41. Bypassing the Contingent Procedure • Given a two-party system accommodated by the 12th Amendment, it is virtually assured that one or other Presidential (and Vice Presidential) candidate will receive the required majority of electoral votes. • Thus Madison’s hope to keep the election out of the House was realized, • not by coordination among the big states, but • by coordination (a nominating process) within each of two political parties. • In this way, the Electoral College system was transformed into something in two ways 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 to winner-take-all electoral votes), but also • the second (House contingent election stage) stage (where small states have equal power) is almost always bypassed.

42. “Inverse” Duverger’s Law and the Election of 1824 • 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 its factions together is removed. • The election of 1824 (the second and last time an election was thrown into the House) is the “exception that proved the rule” that a two-party system bypasses the contingent procedure. • 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.

43. The Election 1824 (cont.) • The four candidates were: John Quincy Adams (Secretary of State) Henry Clay (U.S. Representative and Speaker of the House) William Crawford (Secretary of the Treasury) Andrew Jackson (hero of the Battle of New Orleans and representative of the “common man”) Presidential election results (“first round”): Electoral VotesPopular 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 extent of franchise.

44. The Election of 1824 (cont.) • Clay was the natural compromise candidate, • i.e., most everyone’s second choice, so • he probably could have defeated each other candidate in a “straight fight”) • But 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 • if Crawford had not been a candidate (i.e., so Crawford was a spoiler to Clay). • Even if Adams or Jackson had won all 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, Jackson would have been elected without a House runoff.

45. The Election of 1824 (cont.) • New York’s 36 electoral votes were split among all four candidates. • If Adams had won Crawford’s five electoral votes in addition to the 26 he actually won, this probably would have caused Adams to lose the election, as Clay then would then have placed third in electoral votes and probably won the House runoff. • This provides a historical example of ‘monotonicity failure’ under [instant] runoff elections. • Clay had great influence in the House, 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. • The Adams vs. Jackson rivalry led to a new party system: • National Republicans (later Whigs) vs. Democrats

46. House Runoff • 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 arises that 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 a 269-269 electoral vote tie is possible, and • an election might be thrown into the House even in the absence of a third-party candidate winning election votes. • Prior to the 1825 House 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), namely • the Tuesday after the first Monday in November. • On Tuesday, November 6, 2012, voters in each state went go to the polls and voted for either the Democratic or Republican (or possibly some other) slate of elector candidates, pledged to their party’s (Pres. + VP) nominees. • With popular election of slates of pledged electors, American voters may be forgiven for thinking they are actually voting directly for a Presidential-Vice Presidential ticket. • Often only fine print on the ballot indicates otherwise • and in some states not even that.

48. Vote-Counting Mechanism (cont.) • In each state (including ME and NE), the elector slate receiving the most votes was elected. • The electors will meet in their state capitals in mid-December and cast their electoral votes as pledged. • Electoral vote tallies will be transmitted from each state capital to Congress and will be counted before a joint session on January 6, 2009. • The President of the Senate [Vice President Biden] will announce the votes for President and Vice President and proclaim the winners to be the President-elect and Vice President-elect. • So everything was determined on election night in November, and the remaining steps are merely ceremonial; T • TV prognosticators could • report the popular vote winner in each state, • add up the corresponding electoral votes, and • declare a President-elect.

49. What Can We Do About It? • State legislatures can change mode of appointment of electors, e.g., • CO Proposition 36 in 2004, • CA in 2008 and PA 2012. • But individually they have disincentive to depart from winner-take-all. • And such changes do not address either the election inversion or contingent procedure problem; • indeed, they would might make contingent procedure more likely. • And they would create greater departures from national uniformity. • Congress can do almost nothing by legislation. • The constitutional amendment process can make any change but requires broad consensus. • Proposals such as those in 1940s and 1950s to modify EC are now rarely discussed.

50. Direct Popular Vote • By constitutional amendment, the Electoral College could be abolished and replaced by a national election for President (and Vice President), • with or without an runoff (“instant” or otherwise), and • perhaps (if a runoff is used) using a 40% (rather than 50%) quota for election in the first round. • Such a national popular vote might/should entail national administration of Presidential (and Congressional?) elections, including • nationally uniform voter qualifications, • national voter registration (and voter ID requirements, if any), • nationally uniform ballot types and voting technology, • nationally uniform rules for ballot access (listing of candidates), etc. • Such a proposal passed the House in 1969 but failed in the Senate.