In a recent article in Forbes, the author made this statement about the Affordable Care Act: “America’s Founders fought for a limited government that presupposed free citizens capable of making responsible choices. It is unimaginable that they pledged their lives, fortunes and sacred honor to create a government as intrusive on the lives of ordinary citizens as the vision embodied in ACA.”
Really? The Founding Fathers trusted Americans to make the right choices? Why then did they create the Electoral College to be the final calculation in national presidential elections? The short answer is they, the gentry, feared the common man and the majority principle.
The Founding Fathers believed they faced some difficult questions in terms of how to elect a president. These were their general considerations in historical context:
They asked themselves how to choose a president without political parties, national campaigns, or upset the balance between the presidency and Congress and the federal government and the States. This deliberate mistrust of American’s ability to vote their altruistic conscience and the prevailing elitism of the gentry class represented by the governing Federalists laid the groundwork for the design of the Electoral College instead of relying on election by popular vote.
At the Constitutional Convention, the idea to have Congress choose the president was rejected as being divisive and something that would create dissention among congressmen. Some founders believed in addition it would create regionalism, political bargaining, corruption and possibly interference from foreign powers. They could not have anticipated the Citizens United Supreme Court ruling that, indeed, invites foreign influence in U.S. elections.
Ever fearful of the federal government giving up its power and influence, the idea of the state legislatures to select the president was also rejected.
Then it occurred to them to have the president elected by direct popular election, but this too was rejected because they did not trust Americans to vote the best interests of the union, and instead would vote for the interests of their individual states. Indeed, the concept that a president could not emerge as representative of all the states was most prevalent. In addition, the Founding Fathers felt the president would always be decided by the most populous states leaving smaller states without the power to influence elections.
The Founding Fathers were classicists, and the evidence of this is nowhere more remarkable than in the creation of the College of Electors. The structure is classically Roman, where adult male citizens were divided by wealth into groups of 100 in which the group was allowed one vote for a Roman senator. In the Electoral College system, the states function as the “group” with the number of votes determined by the size of each state’s congressional delegation.
Each State was allocated a number of Electors equal to the number of its U.S. Senators (always two) plus the number of its U.S. Representative (which may change each decade according to the size of each state's population as determined in the decennial census). This arrangement built upon an earlier compromise in the design of the Congress itself and thus satisfied both large and small States.
Is the Electoral College obsolete?
To answer this question the reasons for its creation need to be evaluated within 21st century values and context.
States were originally suspicious of a central government’s motives for control of the union. These concerns were held over from America being under the control of the British monarchy, and any governmental action that even vaguely appeared to emulate monarchial authority were dismissed as compromising American democratic ideals.
Today the federal government and the states are still at odds in many areas in the delicate balance respecting the powers of both as sovereign. Modern voting methods in national elections, despite the potential problems, for the most part can account for "one person/one vote" by popular election without fear of ulterior motives by the federal government to influence elections. To the contrary, we have seen the federal government as the advocate for unfettered voting rights by the 1964 Voting Rights Act, most recently in challenges to states for restrictive voter identification and English-only laws compromising Americans' right to vote.
Distribution of information and campaigning by candidates in the 18th century was obviously not what it is today. Information was disseminated by pamphleteers, and travel by candidates to the 13 states would have been laborious, time-consuming and impractical. To this end, the Electoral College was the answer in colonial America, but these encumbrances do not exist today, making this reasoning obsolete.
Regionalism also played a role in their final decision. The founders believed the most populous states would always preside, leaving smaller states without sufficient voter representation. While this could be construed as true today, there are inherent flaws in the 18th-century definition of state sovereignty if applied to current voting rights. People have the right to vote, not states. The idea that some states are less populated has little bearing on the majority principle and democratic ideal of one person/one vote.
Skepticism of the motives of political parties was one of the main considerations in the development of the Electoral College, and its enactment cemented the country into a two-party system. Political party loyalties by 1800 began to supplant State loyalties. The 12th Amendment altered the design of the Electoral College to accommodate political parties and made them integral to presidential elections.
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What do Constitutional scholars think?
At an MIT Electoral College conference of constitutional scholars, the opinions and ideas mirrored the pros and cons expressed by the general public.
Vikram Amar of Yale Law School is convinced that the Electoral College should change because modern justifications to retain it like “states’ rights” and federalism “do not stand up to scrutiny.”
One proposal without having to amend the Constitution is the National Popular Vote method in which all the states agree to cast its Electoral College votes not for the person who won the state, rather for the candidate who won the most votes nationally.
Arnold I. Barnett proposes a compromise of the National Popular Vote, which would allow small states to retain their Electoral College advantage thereby mitigating the “winner take all” rule and eliminating the danger that the election could go to the House of Representatives in case no candidate receives a majority, and still is relevant for large states. This method, however, would require a constitutional Amendment.
Judith Best, on the other hand, makes the case to keep the Electoral College because it is a federal principle and a structural pillar of the Constitution. Further, she cites John Kennedy as a staunch supporter of the electors, who said: "It is not only the unit vote for the presidency we are talking about, but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the solar system, it is necessary to consider the others." Best believes The Electoral College reduces fraud; “avoids the necessity for recounts of every ballot box in the country and legal challenges in every state (think of 50 Floridas); forces candidates to build broad, cross -national coalitions, supports our moderate two-party system, empowers minorities in swing states and has given us presidents who can govern this heterogeneous continental nation.”
Tara Ross states the democratic aspects of America’s presidential election system allow majorities to rule; however the federalist component ensures that small states have influence in the election process. The Electoral College discourages presidential candidates from focusing solely on regions and special interest groups, and instead promotes the election of candidates who “build national coalitions of voters.”
Paul D. Schumaker admits there is no “best” electoral system, and each methodology has strengths and weaknesses. In order to create a balanced system a popular-plurality system would be better than what we have now. He suggests a national conversation about National Popular Vote which would feature “single-transferable ballot—or instant run-off” as an alternative to the Electoral College.
To answer the question about the Electoral College being obsolete, the answer would have to be “yes” and “no” based on the opinions of some scholars. Do you believe it is a relic of the 18th century and a brilliant example of the Founding Fathers’ mistrust of the majority principle which is representative of a true democracy? Or do you cast your faith in a system that some believe promotes nationalism and discourages regionalism by forcing presidential hopefuls to campaign in all the states, versus focusing only on the most populated states?
Those in favor of a National Popular Vote have a case in terms of states’ sovereignty with the argument that people have the right to vote, not states; additionally, National Popular Vote would preserve the majority principle in presidential elections. This basic tenant holds significant value when weighted against those who favor retaining the Electoral College because it prevents the necessity for costly recounts at the ballot box and legal challenges in every state, or keeping the Electoral College just because it’s “a pillar of the Constitution.”
Reform efforts include the National Popular Vote Interstate Compact, which could go into effect only when the states that have joined the compact have a majority in the Electoral College. Then they would all vote for the national popular vote winner. The compact is based on Article II, Section 1 of the U.S. Constitution, which gives every state the right to decide how to appoint its own electors. As of January 2012 eight states and the District of Columbia with their 132 combined electoral votes comprise 24.5 percent of the Electoral College and 49 percent of the 270 votes needed for the compact to go into effect.