Last Wednesday, September 17th, was Constitution Day – the anniversary of the day the Constitution was signed. In celebration Donald Ritchie, author of Reporting from Washington: The History of the Washington Press Corps, Our Constitution, and The Congress of the United States: A Student Companion, spoke at the Robert C. Byrd Center for Legislative Studies at Shepherd University in West Virginia. Below, Ritchie, who has been Associate Historian of the United States Senate for more than three decades, shares his speech – which reflects on the electoral college.
If the authors of the Federalist Papers drew straws to decide which parts of the Constitution they would defend, Alexander Hamilton must have drawn the short straw, since he had to rationalize the Electoral College, a problematic procedure then as now. Hamilton introduced it cleverly by noting that “if the manner of it be not perfect, it is at least excellent.”
With each election, the question inevitably arises: Why was the Electoral College necessary at all? Why not choose presidents by the popular vote? From our perspective, we expect a candidate to run in primaries, win delegates, go to the convention, get the nomination, and then campaign until the election, when the state-by-state tallies will be reported on television, radio and the Internet. But there were no political parties when the Constitution was written in 1787; no political conventions until the 1820s; no direct primaries until the early 1900s; no radio coverage until 1920; no TV reports until 1948; and no Internet until the 1990s. Our view is hindsight.
Delegates to the constitutional convention felt that “the sense of the people” should influence the choice of president–they did not want Congress to select the president–yet, they were unsure how candidates should be chosen, and whether the people would make reasonable choices. So they drafted a mechanism that allowed the people to elect electors, who would act “under circumstances favorable to deliberation.” Hamilton argued that the Electoral College would provide a “moral certainty” that only highly-qualified men would be elected.
The electoral system worked fine until George Washington retired. The presidency went to whomever won the most electoral ballots, and the vice presidency to the next highest vote getter. In 1796, John Adams ran for president as a Federalist, and Thomas Jefferson as a Democratic-Republican. Adams got the majority, but Jefferson came in second, and became Adams’ vice president. It was as awkward as if Al Gore had become vice president to George W. Bush. That awkwardness was topped by the election of 1800 when Jefferson defeated Adams, but tied with his own running mate, New York Senator Aaron Burr. That threw the election into the outgoing House of Representatives, controlled by the Federalists. They cast 36 ballots before finally electing Jefferson as the lesser of the two evils. The 12th Amendment in 1804 corrected this less-than-perfect system by requiring that electors cast separate ballots for the president and vice president.
Even after its revision, the Electoral College caused problems. In 1824, the failure of any of the four major candidates to get an electoral majority threw the election into the House. Speaker Henry Clay supported the second-place vote-getter, John Quincy Adams. In turn, Clay became Adams’ Secretary of State. The vanquished first-place candidate, Andrew Jackson, declared this a “corrupt bargain” and used the charge to defeat Adams four years later. In 1876, the outgoing Republicans and incoming Democrats in the Southern states submitted contradictory sets of electoral ballots. The Democratic candidate, Samuel J. Tilden, led in the popular vote and was just one electoral vote shy of victory. Since Democrats controlled the House, they were poised to elect him. But the Republicans held the majority in the Senate, which left open which ballots would be counted. Congress created a special electoral commission from the Senate, House, and Supreme Court, which wound up with 8 Republicans and 7 Democrats. Not surprisingly, the vote on all the disputed ballots was then 8 to 7 in favor of the Republican, Rutherford B. Hayes, who won the presidency.
Fortunately, throughout the twentieth century, the popular vote coincided with the electoral vote, and provided credibility for candidates who won by a whisker. In 1960, John F. Kennedy was only three-tenths of a percent ahead of Richard Nixon in the popular vote, but built a convincing lead of 303 to 219 in electoral votes. In 1968, Nixon was a half percent ahead of Hubert Humphrey, but gained a 301 to 191 vote over him in the Electoral College. The illusion of a mandate enabled Kennedy and Nixon to claim office convincingly.
Arguments over the Electoral College died down until 2000, when Vice President Al Gore led by a half million votes in the popular vote, but narrowly lost Florida and the Electoral College. Gore demanded a selective recount; his opponent, George W. Bush, opposed it. The Florida Supreme Court ruled for the recount, but the U.S. Supreme Court in Bush v. Gore stopped it and ensured Bush’s election. The five members of the Court’s majority found that because the different counties in the state handled the recount in different ways, that violated the Constitution’s equal protection provision. The minority dissented heatedly and the high court has seemed embarrassed over this ruling. The court specified that Bush v. Gore was “limited to the present circumstances” and should not be cited as precedent, and has not cited it since. When questioned about the case at a legal forum, Justice Antonin Scalia responded: “Get over it.” Had Florida failed to complete a recount and the Electoral College not mustered a majority, the election would have gone to the House, where Bush’s party held the majority. The outcome would have been the same. The constitutional system did not fail in this case, since the Supreme Court never gave it a chance.
The 2000 election brought renewed calls for abolishing the Electoral College, but Congress has not acted, perhaps on the principle of “better the devil you know.” It may be safer to cope with something with which we are familiar–even if not perfect–than take a risk with the unknown. The Electoral College is likely responsible for the American two-party system, since it encourages broad-based, inclusive parties, and discourages ideological or regional third parties. Texas billionaire Ross Perot got 19.7 million votes in 1992 and not a single electoral vote. If half a dozen parties put forward serious presidential candidates, would a plurality of the popular vote be convincing enough to elect a president? How small a percentage of that vote would be sufficient? Would we require a run-off election between the top two vote-getters? The replacement system might not be perfect either.