Why the Electoral College Is Bad for America

by George C. Edwards and Neal R. Peirce

Why the Electoral College Is Bad for America

Hardcover, 198 pages, Yale Univ Pr, List Price: $29 | purchase

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Book Summary

A political scholar argues that there is no real justification for the Electoral College, which may violate majority rule, and demonstrates that the direct election of the president maximizes political equality.

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Why the Electoral College Is Bad for America

Why the Electoral College Is Bad for America


Yale University Press

Copyright © 2004 Yale University
All right reserved.

ISBN: 978-0-300-10060-0

Contents

Foreword by Neal R. Peirce..............................................................................ixPreface.................................................................................................xv1 How the Electoral College Works.......................................................................12 The Electoral College and Political Equality..........................................................313 Contingent Elections..................................................................................554 The Origins of the Electoral College..................................................................785 Protecting Interests..................................................................................926 Maintaining Cohesion..................................................................................1227 Conclusion............................................................................................150Appendix A U.S. Constitutional Provisions Relating to the Election of the President.....................159Appendix B Comparison of State Population and Electoral Votes...........................................166Notes...................................................................................................169Index...................................................................................................191

Chapter One

How the Electoral College Works

Before we can evaluate the electoral college, we must understand how it works. The popular election every fourth November is only the first step in a complex procedure that should culminate in the formal declaration of a winner two months later. In fact, under the Constitution, the November election is not for the presidential candidates themselves but for the electors who subsequently choose a president. All that the Constitution says of this stage of the election process is that "each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the state may be entitled in Congress." (Readers who wish to read the constitutional provisions relating to presidential elections may consult Appendix A.)

HOW MANY ELECTORS ARE THERE?

Each state's representation in the electoral college is equal to its representation in Congress. Every state is thus guaranteed a minimum of three electoral votes: two corresponding to the number of its U.S. senators, and one (or more) corresponding to the number of representatives it has in the U.S. House of Representatives, with each state assured at least one seat by the Constitution. In the twenty-first century, with fifty states in the Union, the electoral college consists of 538 persons: 435 corresponding to the number of representatives, 100 to the number of senators, and an additional 3 for the District of Columbia under the Twenty-third Amendment to the Constitution (table 1.1).

Following each census, Congress adjusts these totals, reallocating the number of members of the House of Representatives to reflect state-by-state population changes. The decennial reapportionment of electors, however, does not account for significant population shifts that often occur in the course of a decade. For this reason, a state's congressional apportionment-and hence its electoral vote-tends to lag behind population shifts. Because each census takes place in the first year of a decade (1790, 1800, 1990, 2000, and so on), each reapportionment cannot take effect, at the earliest, until two years later.

When a presidential election falls in the same year as a census, the apportionment of a full decade earlier governs the allocation of electoral votes. In the election of 2000, for example, the allocation of electoral votes actually reflected the population distribution of 1990, a decade earlier. The increase or decrease in a state's population since 1990 will not be reflected in that state's electoral vote apportionment until the year 2004.

Because of this process, the apportionment of electoral votes always overrepresents some states and under-represents others. For example, on basis of the 1980 census, California was allocated 47 electors. The Census Bureau estimate for California's population in 1988, however, would have translated into 54 electoral votes in the election of that year. Other high-growth states like Florida, Texas, and Arizona have also been penalized, whereas states with slower growth or population declines have benefited from the lag in reapportionment. More important, presidential candidates who won high-growth states have been penalized whereas those winning lower-growth states have been helped.

WHO NOMINATES THE ELECTORS?

Presidential electors for each party are nominated by a variety of methods. The most common procedure-used in thirty-four states-is for state conventions of the parties to nominate the electors. In ten other states and the District of Columbia, the state party's central committee makes the nominations. One state, Arizona, authorizes nomination of the electors in primary elections. The remaining five states use a combination of methods. The most unusual nomination law is Pennsylvania's, which authorizes each party's presidential nominee to select electors on his behalf.

WHO ARE THE ELECTORS?

The Constitution says merely that "no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector." The founders wished to prevent members of Congress and federal officials from having a role in the election of the president-at least in the first instance-to avoid the bribery and intrigue they feared might result. The framers intended that electors would be distinguished citizens, and such they were in some early elections. As early as 1826, however, a Senate select committee observed that electors were "usually selected for their devotion to party, their popular manners, and a supposed talent for electioneering." In 1855, in contrast, some asserted that the electors in Alabama and Mississippi were among the state's ablest men and went among the people to instruct, excite, and arouse them on the issues of the campaign. Today, it is probable that not one voter in thousands knows who a state's electors are. Persons are usually nominated for elector on the basis of long service to their party, because of financial donations to the party or a candidate, or out of the party's wish to have an ethnically or politically balanced elector slate. Some small measure of fleeting prestige is about all that electors can hope for from their selection, because the only payment electors normally receive is a small per diem allowance (if even that) on the day they cast their votes.

It appears that such "rewards" have often been reserved for citizens and party workers in the twilight of their lives. Thomas O'Connor, for example, was ninety-three when he was elected president of the Massachusetts electoral college in 1960. Electors are also frequently rewarded with the office because of past financial generosity. As one well-known 1968 elector, best-selling author James Michener, candidly put it, "My finest credentials were that every year I contributed what money I could to the party." Electors have been selected for other reasons as well. In 1936 the Democratic party of New York State attempted to use its list of electors for political purposes by placing several prominent trade unionists, including Ladies' Garment Workers' chief David Dubin-sky, on its electoral slate to attract the labor vote to Franklin D. Roosevelt. At the time, some expressed fears of a "Tammany-izing" of electoral slates with the introduction of class, racial, and religious appeals through giving such groups some of the electoral nominations.

These fears may largely be illusory, however, for fewer and fewer states actually list the names of the electors on their ballots. In sum, the electoral college is far from being the assembly of wise and learned elders assumed by its creators; it is rather a state-by-state collection of party loyalists and donors.

WHO ELECTS THE ELECTORS?

The Constitution permits each state to select electors "in such manner as the legislature thereof may direct." As Justice John M. Harlan observed in Williams v. Rhodes (1968), during the first four decades of the United States, states selected electors "by the legislature itself, by the general electorate on an at-large and district-by-district basis, partly by the legislature and partly by people, by the legislature from a list of candidates selected by the people, and in other ways."

In the first presidential election, in 1788, the legislatures in five states selected the electors without a popular vote. The New York legislature could not agree on a method of selecting electors and so selected none at all. The other states elected electors in districts or in statewide elections. In 1792, there were fifteen states, in nine of which the state legislators chose the electors. In 1796, there were sixteen states, and once again the state legislatures in nine of them chose the electors.

As time passed, many saw legislative selection of electors as corrupt and were put off by the inevitable bargaining and payoffs that occurred. By 1824, only six state legislatures appointed electors, and the number dropped to two in 1828. From 1832 through 1860, only South Carolina continued this practice. With the exception of the newly reconstructed state of Florida in 1868 and the newly admitted state of Colorado in 1876, the people of the states have chosen the electors in statewide elections since the Civil War.

Should any state legislature wish, however, it has the right under the Constitution to take the choice of the electors from the people and either do the job itself or deputize another body to make the selection. In the words of a Senate committee in 1874, "The appointment of these electors is thus placed absolutely and wholly within the legislatures of the several States. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the State at large, or in districts; ... and it is, no doubt, competent for the legislature to authorize the Governor, or the Supreme Court of the State, or any other agent of its will, to appoint these electors."

The Supreme Court quoted this language approvingly in a landmark case, McPherson v. Blacker (1892), in which a group of Michigan citizens challenged the right of that state's legislature to shift to a district system for the elections of 1892. The Court rejected the appeal, finding that the word "appoint" in the Constitution conveys the "broadest power of determination" to the legislatures. The state legislatures, the Court said, have "plenary power" over appointing electors, and could even refuse to provide for the appointment of any electors at all if they so chose. Moreover, there is no constitutional right to the public to vote for electors.

The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors.... In short, the appointment and mode of appointment of electors belong exclusively to the States under the Constitution.

The Court's opinion echoed a statement made years earlier, during House debate in 1826. Representative Henry R. Storms of New York asserted that nothing in the Constitution prevented a state legislature from vesting the power to choose presidential electors "in a board of bank directors-a turnpike commission-or a synagogue."

In Bush v. Gore (2000), the Supreme Court made the point once again, declaring that "the individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as a means to implement its power to appoint members of the electoral college."

After the election of 1960, segregationist forces in the Louisiana legislature suggested revoking the choice of the regular Democratic electors already elected by the people and substituting a new slate of electors who would oppose John F. Kennedy's election. Despite the strong conservative sentiment in the legislature, however, the motion was withdrawn before it could come to a vote. Even had the motion passed, it could probably have been subjected to successful challenge in the courts because it would have violated the congressional requirement that the electors be chosen on a uniform date-which had already passed. But a move by a legislature to take the appointment of the electors into its own hands before the nationally established date for choosing the electors would not have been open to a similar challenge.

Despite the sweeping language of McPherson v. Blacker, there are some limitations on the discretion of state legislatures in setting the mechanism for presidential election in their respective states. Even in McPherson, the Supreme Court recognized that if a state permits the people to choose the electors, then the Fourteenth Amendment protects citizens from having their vote denied or abridged. The Supreme Court has also upheld congressional enactments designed to prevent fraud or regulate campaign expenditures in connection with presidential elections. The governor of a state, moreover, might well veto a legislative act abolishing popular election for presidential electors. In referendum states, a law abolishing popular election could be referred to the people, where it would almost certainly be defeated. Initiative measures could be used in a similar way. For the most part, however, it is not state or federal constitutional guarantees that assure the people the right to choose presidential electors. It would probably never occur to modern-day state legislatures to take the power of appointment of presidential electors directly unto themselves. Even if the temptation presented itself, fear of retribution at the polls would restrain them.

Ohio formerly had a set of laws that made it both impossible for independent candidates for elector to obtain a place on the ballot and very difficult for a new party or a small existing party to gain a place on the state ballot. In Williams v. Rhodes (1968), the Supreme Court in a plurality opinion found that the Ohio laws violated the right of individuals to associate for the advancement of their political beliefs and the right of voters to cast their votes effectively. As Michael Glennon points out, this decision ignored the problem that people do not have a right to vote for electors and in no way suggests over-ruling McPherson.

WHEN DO WE ELECT ELECTORS?

The Constitution provides that Congress may determine the date for selecting electors and mandates that the date chosen be uniform throughout the United States. Before 1845, Congress refrained from setting a specific day for the election of the electors. The 1792 law that spelled out procedures for presidential election stipulated only that the electors must be chosen within the thirty-four days preceding the first Wednesday in December every fourth year. Congress apparently refrained from setting a specific date for two reasons: because it would be inconvenient for state legislatures that directly chose the electors and would need more than a single day to complete their debates and action; and because states' rights advocates said Congress should not place unnecessary restrictions on the states.

In 1845, however, Congress established a uniform national election date: the first Tuesday after the first Monday in November. The date was especially appropriate for an agrarian society, for it fell after most of the autumn harvest had been gathered but before the rigors of winter set in. This date has been observed in every subsequent presidential election. Congress selected Tuesday because it allowed a full day's travel between Sunday, which was widely observed as a strict day of rest, and Election Day. In most rural areas, the only polling place was at the county seat, frequently a journey of many miles on foot or horseback. The first Tuesday after the first Monday was chosen to eliminate November 1, All Saints' Day-a holy day of obligation for Roman Catholics-as a possible election day.

HOW DO WE ELECT ELECTORS?

The virtual anonymity of the presidential elector has been reinforced in recent years by the marked trend, apparently spurred by the desire to simplify the vote count and by the spread of voting machines, toward the use of the presidential elector "short ballot" in the November election. Instead of facing a ballot or voting machine with long lists of elector candidates, the voter sees the names of the parties' presidential candidates printed in large type, sometimes preceded (in small type) by the words "Presidential electors for...." Many states even omit the wording about presidential electors altogether, so that the voters, unless they are well versed politically, have no way of knowing that they are actually voting for presidential electors rather than directly for president and vice president.

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