Don’t Abolish the Electoral College. Modify it.

Don’t blame the U.S. Constitution for the Electoral College flaws. Blame the State Constitutions.

The rumblings over eliminating the Electoral College have continued unabated for years, with a spike in intensity after the 2016 election. Opponents of Electors point to the popular vote declaring Hillary Clinton the winner, yet the Electoral count gave the win to Trump. Clinton supporters called foul. Their argument: the people vote for the President. A simple majority should determine who wins.

Let’s step back in time to December 1788. The new U.S. Constitution was ratified in September of that year. This new document provided for each state:

• Popular voting for the Congressional Representative
• Two Federal Senators appointed by their respective State Legislature.
• Freedom to determine the method for choosing the Presidential Electors. Some states determined Electors by popular vote, others by Legislative appointment, others by a mixed of popular vote/Legislative appointment. In all cases, Electors from a State voted for one individual (“winner take all” ).

Over time all the States modified their Constitutions to require the Electors cast their votes based on the popular vote.

Why’d the Founders filter choice of the President through Electors ? The answer depends on who you ask. Some say it was the Founders distrust in democracy. Others to balance large population state/small population state political power. The balance camp trots out Founder statements of expecting the post George Washington era to be one of multiple individuals receiving Electoral votes. With no one gaining a majority, the U.S. Constitution invokes Presidential election by the House of Representatives under a one state, one vote rule. Power in determining the President would be balanced between large and small states. Twice in U.S. history (Jefferson- Burr 1800 and Adams- Jackson 1824) has the President been determined by the House. However, with the hardening of American politics into two major parties (with only 2 candidates for President), the balance justification of Electors is long gone.

The distrust democracy camp can also produce Founder support. Yet claiming the U.S. Constitution reflects the Founders hatred of democracy strains credibility¹. They were seeking a balance between centralized (Federal or State) power and dispersed (democracy/populist) power, not a minimization of dispersed power.

The Framers knew their political history. They’d studied the past and learned about the destructive power of mobs, tyrants and demagogues on civic society. In the U.S. Constitution they took Federal Senator selection away from the dispersed power and gave it to the individual State centralized power (the State Legislature). They left the method for selecting Electors up to the individual States. The only guarantee of the dispersive power being applied in Federal representation was in the Representative.

As already stated, the Electoral small State/ large State balance argument is a moot point in our modern era. However, does the Electoral System still have value in balancing centralized and dispersed power? Consider the following questions:

Should the dispersed power be increased, the Presidential choice by the people completely unfiltered?

If you’re of the Alexander Hamilton school your needle leans towards distrust of people at large², hence an emphasis on limiting dispersed power by centralized power. If you’re of the Thomas Jefferson school your needle leans toward trust in the people at large³, hence an emphasis on limiting centralized power by enhancing dispersed power. Even for Jefferson, however, there were limits to his trust in people and their political decision making ability⁴. For me, recent voting behavior in the U.S. (from both Democrat and Republican voters and members of Congress that the people at large have selected) pushes my needle even further Hamiltonian than it was 4 years ago.

Does Electoral voting per the requirements of the U.S. Constitution add stability, finality to the election process?

I think it can. We will experience all sorts of legal nonsense in the coming months around Presidential vote counting. There is a finality, defined by the Constitution, in the Electors votes being read by the President of the Senate (the Vice President), in front of Congress, determining who will be the new President and Vice President.

Would reduction of State power by eliminating the Electoral College be beneficial?

The Electoral system leads Presidential candidates to court citizens of individual States, not just the population at large. That makes States more politically meaningful, strengthening the U.S. Constitution intent of balancing State and Federal power. The post Civil War era has seen ever increasing Federal power and diminishing State power⁵. Abolishing the Electoral College would further diminish State power.

Is a National Voting System less corruptible than the State Voting Systems?

Abolishing State Electors and relying on a simple vote majority makes the Electoral voting system developed by each State obsolete and meaningless. Currently the State governments, per the U.S. Constitution, decide how their Electors will be selected. The States control how their citizen votes will be collected and counted. With a simple majority determining the President these State systems would eventually be replaced by a National system; citizens and their elected Federal representatives will demand uniformity and consistency of vote accumulation and vote counting to ensure “every vote counts”. Which system is easier to corrupt, a single National System administered by the Federal Executive branch which is controlled by a single political party, or 50 State systems, where control is distributed between the two major parties?

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48 State Constitutions incorporate winner-take-all language in their Electoral voting. As previously mentioned, this concept has roots back to the Founding. Electoral apportionment by all 50 states would be an improvement over the current system. Nebraska and Maine have already done it, but unfortunately these States have small populations and exert little influence. Following the example of Nebraska and Maine the remaining States could modify their Constitutions to apportion their Elector votes based on the popular vote. That system would continue to filter the popular vote by agglomeration into Electors, would still lead candidates to court individual States, and maintains the finality and stability of the current Electoral system. This would be an appropriate compromise to make the popular vote more significant yet retain the Electoral filter.

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1- For example, the U.S. Constitution provided a much broader franchise for voting for Representatives than the States did for their various representatives (contrary to popular opinion, it was State Constitutions, not the Federal Constitution, that limited voting to property owning white males). As another example, membership in Congress had no property ownership limits. An individual could qualify to be a Federal representative but not qualify to be a representative in their State. See Akhil Reed Amar America’s Constitution: A Biography for more examples of the populist nature of the Constitution and its ratification.

2. “Men of upright, benevolent tempers have too many opportunities of remarking with horror…how often the great interests of society are sacrificed to the vanity, to the conceit and to the obstinency of individuals”. Federalist no. 70 (original spelling retained)

“The republican principle demands, that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breese of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests”.- Federalist no. 71 (original spelling retained)

3. (Speaking of George Washington)… “The only point on which he and I ever differed in opinion, was, that I had more confidence than he had in the natural integrity and discretion of the people, and in the safety and extent to which they might trust themselves with a control over their government”. Thomas Jefferson to John Melish, January 13 1813 Thomas Jefferson Writings, Library of America.

4. “I have ever observed that a choice by the people themselves is not generally distinguished for it’s wisdom. This first secretion from them is usually crude & heterogeneous. But give to those so chosen by the people a second choice themselves, & they generally will chuse wise men”. Thomas Jefferson to Edmund Pendleton, August 26 1776 Thomas Jefferson Writings, Library of America.(original spelling retained)

5. Pre Civil War interpretation of the 9th and 10th Amendments indicated Congress must point to a specific enumerated Constitutional power before it can act (the 10th), and does that power actually exist (the 9th). The intention was to restrict Congress to the powers enumerated in Article I, Section 8 of the Constitution. See Edward Dumbald, The Bill of Rights and What it Means Today 163 ; Akhil Reed Amar, The Bill of Rights 133–134. In modern times interpretation has been reduced to states rights (the 10th) and individual rights (the 9th) cannot be infringed. Even a casual reading of Article I, Section 8 shows the modern Federal government exceeds its Section 8 enumerated powers. Additionally the income tax Amendment (16th) increases Federal revenue, further increasing Federal power. The Senate voting Amendment (17th) takes Senator appointment from the State Legislature into voting by the people. State Legislatures lost their State representative and a subsequent source of State power, transferring Senators to be additional representatives of the people.