While Biden promotes his global summit on democracy, a majority of Americans think their own presidential-electoral system is seriously flawed. Opinion polls show that support for reform of the Electoral College has been running at between 60 and 80 per cent since the late 1960s. Indeed, as Alexander Keyssar documents in Why Do We Still Have the Electoral College?, criticism of the indirect mechanism inscribed in the Constitution began soon after its inception. Presidential elections mediated by state electors were ‘the most deplorable proofs of the imbecility of our system’, according to New Jersey Senator Mahlon Dickerson in 1819, while Virginian Congressman John Randolph called the process ‘a mockery, the shadow of a shade of an election’. Fifty years later, the Massachusetts Senator and abolitionist Charles Sumner denounced the Electoral College as ‘radically defective and unrepublican’, while Ohioan Congressman James Ashley thought it ‘violative of the democratic principle and dangerous to the peace and stability of the government’. Criticism only intensified in the 1960s, when Tennessee Senator Estes Kefauver called it ‘a loaded pistol pointed at our system of government’ and ‘a game of Russian roulette’.
Nor was criticism confined to the margins. Jefferson, Madison and fellow framer of the Constitution Rufus King all called for reform, as did twentieth-century notables from both parties: Henry Cabot Lodge, Bob Dole, Gerald Ford, Hubert Humphrey, Edward Kennedy, lbj, Nixon and Carter. Indeed, numerous reform attempts were launched to amend Article ii, Section i of the Constitution, which sets out the procedure for choosing the us President. Over 500 amendments have been put forward in the last two centuries—all of them failed. The puzzle for a historian, as Keyssar notes, is to explain not change, but its absence: why, despite so many calling for it, has Congress been consistently incapable of abolishing or significantly amending this system? Professor of History and Social Policy at Harvard, Keyssar is best known for his widely acclaimed history of American suffrage, The Right to Vote (2000). Here he provides what will surely remain one of the most detailed and scholarly investigations into these serial attempts at reform, while also offering a thoughtful analysis of the many different reasons for their failure. This is, in the author’s summary, ‘a multilayered tale of idealism and dedication, missed opportunities, mistaken predictions, ingenious yet disingenuous values and partisan advantage, and as in so many dimensions of American life, the difficult-to-transcend legacy of slavery and racial discrimination.’
The fifty-plus delegates to the 1787 Philadelphia Convention—wealthy lawyers, landowners, half of them slaveholders—rapidly agreed on the need for a national executive branch, outlined its powers and settled upon the title for the chief executive. But they differed on how the President should be chosen. There were few contemporary models for republican heads of state, Keyssar points out, and the thirteen ex-colonies were still experimenting with different methods for choosing their own governors—appointment by the legislature, in most cases, though New York and Massachusetts had instituted popular elections, with limited suffrage. More importantly, they were divided on modes of representation. The small states claimed equal legal standing with giants like Virginia, Pennsylvania and New York; the latter insisted that representation should be proportional to population—which raised the question of whether the hundreds of thousands of African slaves in Virginia, Georgia and the Carolinas should count as part of their populations (all agreed Native Americans would be excluded).
The Convention turned to the question of presidential election after delegates had agreed to their notorious compromise: equal state representation in the Senate and proportional representation in the House—one representative for each 40,000 inhabitants, with each slave counted as three-fifths of a person; a significant bonus in House seats for their powerful owners. These advantages for small states and for the South were then baked in to the process chosen for presidential elections. Further disputes pivoted on the balance of sovereignty between the executive and the states: those in favour of a strong executive, like Pennsylvania lawyer and land-speculator James Wilson, argued for a national popular vote, naturally with limited suffrage; proponents of state sovereignty and Southerners, benefitting from the three-fifths provision in Congress, refused to concede their advantage. They countered that voters would back someone from their own state, or be led astray by a demagogue. Madison, from a Virginia planter family, counselled compromise: ‘an appointment by electors chosen by the people’ rather than ‘an immediate appointment by the people’.
The matter was handed to the Committee of Detail, which produced just that: an Electoral College, replicating the House–Senate agreement on the number of electors per state. The legislature of each state would determine how its electors were chosen. The electors would then meet in their state capitals on an appointed day to cast their votes for a presidential candidate. If there was no clear winner, the outcome would be settled by the House. The Electoral College was conceived, Keyssar argues, as a temporary replica of Congress. It introduced the possibility of a popular vote, but channelled it through the states—thereby carrying over the disproportionate congressional powers of small and slave states into the selection of the president. The latter eroded, slowly, after the 1964 Civil Rights Act; the Electoral College remains intact.
Keyssar details three waves of reform agitation. The Electoral College was not an issue in the states’ debates around ratification of the Constitution, as he points out, because everyone knew Washington would be anointed the first President. But the problems of Article ii, Section i became apparent in the fiercely contested election of 1800, when the choice between Thomas Jefferson and Aaron Burr had to be decided by the House of Representatives. Gridlock ensued, with 35 rounds of tied votes before a deal was brokered. The experience shook whatever confidence had developed in the three prior elections. However, instead of correcting the electoral process as a whole, Congress merely voted to split the ballot between president and vice president in the Twelfth Amendment of 1804. Ironically, Keyssar points out, the experience of presidential elections helped to develop the proto-party system that the Constitution’s framers had hoped to avoid. As partisan polemics hardened between Northern Federalists, generally pro-British and supportive of Hamilton’s economic policy, and what Keyssar calls ‘less elite, more Southern’ Democratic-Republicans, more likely to be oriented towards revolutionary France, candidates came to be chosen by their faction’s congressional caucus and began campaigning across state lines. This also put a premium on factions winning control of state legislatures.
It was during the short-lived ‘Era of Good Feelings’, with the Federalists in deep decline after the War of 1812 against Britain, that Congress came closest to sending an amendment to the Electoral College to the states. This would have devolved elector selection to district-level voting, with a potential for gerrymandering. The Senate passed four amendatory resolutions by the necessary two-thirds between 1813 and 1822. The House fell six votes short in 1821 of concurring with the Senate’s bill. The supermajorities required to amend the Constitution—two-thirds of both houses of Congress, plus ratification by three-quarters of the states—would continue to be a major impediment to reform. Instead, while most state legislatures had initially picked their electors themselves, they now began to institute a popular vote for presidential elections combined with a first-past-the-post ‘general ticket’ system (the winner takes all the state’s electors). Meanwhile the emergence of a new two-party system after the 1824 election also served to block reform. Each perceived the other as a ‘distrusted adversary’, posing a threat to its core values, whether these were expansionist or involved the defence of slavery. While reform amendments continued to be pushed, Congress failed to pass them, even with the support of the now-retired Madison. The party system, and the relative equilibrium and electoral stability it brought, would thus come to provide another bulwark for the Electoral College.