A Compromised Institution: Alexander Keyssar's Why Do We Still Have the Electoral College?

At the close of the 20th century, Alexander Keyssar found himself writing what would become the preeminent book on the history of enfranchisement in America. This had not been his original plan. He had spent years, in fact, working on a very different plan—“a highly quantitative study of working-class participation in electoral politics in the United States.” He set out to write a chapter summarizing the history of voting rights and found, to his dismay, that no such history had been written yet, and he would have to do his own original research to write it. The study on working class electoral participation has yet to be written, and that chapter became a book, The Right to Vote.

If there was a theme running through that book, it was that universal suffrage was not inevitable, and the expansion of the franchise was not a linear progression. In Keyssar’s history, expansions of the franchise almost always marched in lockstep with restrictions along other dimensions or in specific localities. The abolition of the property requirement might occur simultaneously with the tightening of racial restrictions, or a loosening of federal or state restrictions might occur alongside a tightening of municipal restrictions. Even periods that can be characterized as expansionary overall were matched by periods of contraction not long after. The contingent, two steps forward, three steps backward, and four steps forward story that Keyssar tells is sadly more relevant than ever. The Right to Vote was revised and expanded in 2009, too early to analyze the results of the 2013 Supreme Court decision to end federal preclearance of state voting laws in Shelby County v Holder. This controversial case resulted in a flood of laws designed to create barriers to registering to vote and otherwise depress turnout.

In Keyssar’s new book he asks Why Do We Still Have the Electoral College? The first edition of his last book hadn’t mentioned the Electoral College at all, and unfortunately for him it came out a mere two months before the 2000 election. Rather than plugging a hole in his previous history—which the Electoral College plays a relatively negligible part in—this new book is an attempt to answer the question that has been on the minds of so many of us since 2000 and 2016: Why do we still have this Rube Goldberg contraption to select the occupant of the most prestigious and powerful single office in the country? As Keyssar notes, “even a cursory glance at the historical record makes plain that the system has not survived because of the shattering brilliance of the arguments made in its behalf.”

If his previous study made a case against the inevitability of progress while nevertheless conceding that progress is what we ultimately achieved, Why Do We Still Have the Electoral College? makes the case all the more firmly by focusing on an aspect of the American franchise that we haven’t made any progress on, really. No improvements have been made since the Twelfth Amendment was ratified in 1804, and that merely sought to avoid the outright malfunction of the electoral machinery rather than creating a more representative one. What is more, this institutional stasis occurred in a context of almost universal condemnation. Actual defenses of the Electoral College are historically rare until after the 2000 election. But the jigsaw of interests in tension with one another have never been successfully assembled such that an actual replacement could be agreed upon. Not, at any rate, agreed upon by enough members of both houses of Congress to pass the high hurdle required for sending an amendment to the states, never mind getting enough states to ratify such an amendment.

The book is not intended as a council of despair but instead, perhaps, as a wake-up call. We have come close to changing the Electoral College on a handful of occasions. Sometimes these were relatively small reforms, and sometimes, as in the 1960s and 70s, its complete replacement with a national popular vote was on the table. While the current polarization of the debate does not leave much room for short term optimism, Keyssar makes it clear that the entrenched interests that have pushed for and pulled against reform have never been fixed. A window of opportunity may arise again, or may be possible to manufacture. But we would do well, if we wish to make the most of such an opportunity, to understand why so many have failed for so long.

What the Electoral College is

“Electoral College” is not a phrase that appears anywhere in the Constitution. And the term in fact encompasses elector selection rules enacted at the state level that are not in the Constitutional text, either.

Keyssar explains that the rule for selecting presidents was among the last matters agreed upon at the Constitutional Convention, after “months of indecision, disagreement, and ‘reiterated discussions.’” James Madison had favored a national popular vote in spite of the disadvantage this put small states as well as the variation in suffrage rules from state to state. Most of his colleagues did not. After the matter was finally sent to a committee on “postponed parts,” they returned with the Frankenstein’s monster arrangement that has more or less been with us since.

So what, then, is the Electoral College?

The first ingredient is Article II, Section 1, in particular paragraphs two through four. The essential elements (leaving out a few procedural matters not relevant to our discussion) are as follows:

• The state legislature will determine the method by which electors are chosen
• The number of electors will equal the number of Representatives and Senators the state has
• “no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.”
• Electors will cast two votes, at least one of which must be for someone who is not from their state.
• If someone receives a majority of the votes, they will become president.
• If two people have a “majority” (because of each elector voting for two people) the House will pick which will become president.
• If no one receives a majority, the House will pick the winner from the top five vote getters, with each state delegation getting a single vote.
• Whatever the method ultimately used (electors or the House), the person with the second largest number of votes becomes vice president.

The biggest change that the Convention made to the version that the committee recommended is that the House, rather than the Senate, served as the “contingent election system” in the event that two candidates or no candidate received a majority.

The second ingredient is the Twelfth Amendment, ratified in 1804. The major changes this introduced were:

• Rather than casting two votes for president for two different people, they cast one vote for president and one for vice president, one of whom must be from a different state than the elector.
• If no one has a majority of the votes for president, the House, with one vote per state delegation, decides among the top three.
• If no one has a majority of the votes for vice president, the Senate decides among the top two.

The final ingredient is the actual method chosen by the state legislatures in order to pick their electors. In the beginning, there was a mix of method, which included legislatures simply choosing the electors themselves, a statewide vote with each electoral district allocating its elector based on who won a majority of that district’s vote, and finally the “general ticket,” which is the method used in all but two states today. Under this method, whichever party’s candidate gets a simple majority of the state’s popular vote gets to pick the entire slate of electors for the state.

The general ticket, more than the two “Senate electoral votes” allocated to each state regardless of population, plays the largest role in the potential disproportionality of electoral outcomes. And, as mentioned, it is not in the Constitutional text at all.

Power and interests

Why on Earth was such a system conceived, never mind ratified? To answer this question requires, for the typical American, a bit of demystification. Our understanding of our nation’s foundational documents are greatly obscured by the place they occupy in our moral imaginations. Even the Declaration of Independence was not an exposition on natural rights philosophy. It was a declaration that America was an independent nation; in other words, available to make alliances with other nations, which a merely rebellious colony would not be. And the Constitution, like all subsequent written constitutions, was an instrument for creating new institutions within an existing structure of power relations. It is this last point that we must consider when trying to understand why our method for selecting a president is so overcomplicated. As Duke political scientist Michael Munger put it:

If paper institutions, such as constitutions, attempt to create a de jure distribution of power that differs from the de facto distribution of power on the ground, there will be violence. And the resulting conflict is likely to be won by those who possess de facto power.

The Constitution was a pact formulated by representatives of the existing power structures of the time. The three-fifths clause was not a statement of principle that slaves were only three-fifths of a person, it was a compromise between representatives of slave states who would not join the pact if they were not apportioned more seats in Congress on the basis of their slaves, and non-slave states who would not join if this relationship was one to one. It was not a statement of principle, it was a matter of power. It gave slave states disproportionate power in the new government but it also created an institution capable of making war on them, and winning, when they rebelled a little over eighty years later. An institution that could not exist without making the compromises that brought all thirteen states on board in the beginning.

As Keyssar puts it, the three key paragraphs of Article II Section 1 “replicated the hard-fought compromises over representation that had been reached” earlier in the Convention. While the Constitution itself is a bundle of compromises, the presidential selection system is a bundle within a bundle, in some ways a mirror of all the other compromises combined. It was not all power-brokering, mind you. The idea of selecting men of character who would have no other power than to quickly discharge this one duty this one time was proposed as a means to avoid “intrigue” and “cabal”; which is to say, corruption. The virtues of good institutional design were sought, but they were balanced against the desire to protect entrenched interests. The presidential selection system, perhaps more than the rest of the Constitution, was overbalanced towards protecting entrenched interests, and even where it was not, it was simply poorly designed on its merits. A handful of so-called “faithless” electors aside, electors have not exercised independent judgment in the 231 years of the republic, and they have never exercised it in a way that swayed the outcome.

Political scientist Eric Schickler once noted that “conflicts among competing interests generate institutions that are rarely optimally tailored to meet any specific goal.” He called the result “disjointed pluralism,” and while the object of his study were the internal rules of each house of Congress, he may as well have been describing the Electoral College. Keyssar documents at length the broad dissatisfaction with the mechanism which set in right from the start. Yet there has been very little change, but not for lack of trying:

Between 1800 and 2016, members of Congress introduced more than 800 such amendments [to amend Article II, section 1, of the U.S. Constitution], and the tally grows every few years. The Congressional Research Service concluded in 2004 that “more proposed constitutional amendments have been introduced in Congress regarding Electoral College reform than on any other subject.” According to one estimate, roughly 10 percent of all amendments introduced into Congress have been aimed at the presidential election system. On six occasions, election reform amendments were approved, by the requisite two-thirds vote, in one branch of Congress; the most recent was in 1969 when the House passed an amendment calling for a national popular vote. The only proposal to become law, however, was the Twelfth Amendment, ratified in 1804.

The barrier to amending the Constitution is, of course, quite high. But it has been cleared before, and that high barrier is not the only reason that Electoral College reform has failed so often and for so long to even get enough votes in both chambers of Congress. As Keyssar points out:

Despite the challenge of attaining supermajorities, Congress and the states have, in fact, passed ten amendments that altered electoral processes and procedures. Some of these addressed relatively minor procedural matters (such as the date on which the winner of a presidential election assumes office); but six have dealt with consequential issues of voting rights, and the Seventeenth Amendment mandated the direct election of senators. The amendment process has been an impediment, but not an insuperable obstacle, to the reform of electoral institutions.

Persistent disjointedness

So why hasn’t the alteration or outright replacement of the Electoral College passed muster, especially when we consider just how often the attempt has been made?

Simply put, the exact disjointed pluralism which characterized its birth in the first place. No one has ever truly wanted the Electoral College, not even the people who designed it. But some selection process was necessary and this was the one that enough people would sign off on, however grudgingly.

What is especially amazing is how this gridlock of interests persisted, even as the nature of the interests changed over time. When slavery was abolished and the three-fifths “bonus” electoral votes were no longer around to benefit anyone, the resistance to specific reforms continued. Of course, as with all institutions, its very existence created entrenched interests which depended on it. Consider that every state has the number of electoral votes that it has, no matter what their voter turnout is. Now consider this telling passage from Keyssar:

Northern critics like retired general Henry Edwin Tremain, author of a forceful 1907 book entitled Sectionalism Unmasked, blasted this state of affairs, compiling election results to demonstrate that the actual number of votes cast per member of Congress (or electoral vote) in the South was only a fraction of what it was elsewhere in the country. In 1904, for example, Delaware had cast roughly the same number of votes for Congress as Georgia had, but Georgia had eleven representatives while Delaware had only one. Ohio that same year cast as many votes for president as nine southern states together, but those nine states possessed ninety-nine electoral votes in comparison to Ohio’s twenty-three. (The 1904 election was no anomaly: in every presidential contest from the 1890s into the 1960s, there were many fewer ballots cast per electoral vote in the South than elsewhere.)

Under the current system, the voters of Georgia benefitted from mass disenfranchisement because it gave them greater individual control over eleven electoral votes. Under a national popular vote, those voters would have had “roughly the same” influence as the voters in Delaware. It therefore took the destruction of the Jim Crow machinery of disenfranchisement to bring the possibility of a national popular vote to the brink of passing both houses of Congress.

And in 1969 an amendment creating a national popular vote came very close to getting the necessary votes in Congress. It passed the House with a vote of 338 to 70, well in excess of the required proportion. Advocates in the Senate were confident they had the votes as well, but a handful of southern senators, along with a protracted Supreme Court nomination battle that soured several on the Republican side on working with the Democrats pushing the amendment, led to a slow death through procedural maneuvers. A few years later when an attempt was made again, the moment had passed and the Senate support was simply not there in the first place.

Though few efforts came so close, this book is full of stories like this, detailing the many battles for reform that took place, the arguments marshalled on each side, and the perceived interests at stake. At the time of the 1969 push, for example, a segment of the African American activist community came out against it, thinking that the influence of the African American vote would be diminished if they lost the ability to determine who received electoral votes from large, northern states by voting in a block. Most tantalizingly, Keyssar suggests that though the argument that small states would never support a national popular vote is constantly invoked, the evidence for it is slim. Senators and Representatives from small states have been among the most vocal advocates for many of the proposed reforms over the years, including the national popular vote.

One could go on for quite a long time describing the many salient facts Keyssar brings to light; that is why it took him an entire book to do so. To thoroughly understand the Electoral College, but also the nature of institutional reform in general and American Constitutional reform in particular, one could hardly do better than Why Do We Still Have the Electoral College? 

Featured Image is The County Election, by George Caleb Bingham