The Origins and Transformation of the Electoral College

1. The Origins and Transformation of the Electoral College

2. Designing The Original Electoral College • The menu of options for Presidential selection: • Selection by states, • which would be too much like the Article Confederation; • Selection by Congress, • which was the “default option” found in both VA and NJ plans. • But many feared it would make the President too dependent on Congress. • How would a bicameral Congress elect a President? • House only • Senate only • Concurrent ballot • Joint ballot • Selection by some kind of popular election, • which presented many practical difficulties. • Some kind of mixed system, which might distinguish between • a first round of selection (“nomination”) and • a second round of selection (“election” or “runoff”), and/or • might use “intermediate electors.

3. Designing The Original EC (cont.) • The perceived advantages of an Electoral College of intermediate electors: • unlike Congress, the EC would perform a single task – i.e., cast votes for President -- and would then disband, so • the President would be subservient to neither Congress nor the Electoral College; and • unlike popular election, the EC • avoided difficult questions about the extent of suffrage, and • allowed a range of compromise between the large vs. small states through its fine details, and • and public opinion could be refined through representation. • Since legislative election was the default choice, it is more accurate to say the framers settled on the EC • as an alternative to legislative election, rather than • as an alternative to popular election.

4. The Original Electoral College Rules • Each state selects a number of “electors” equal in number to its total (House + Senate) representation in Congress (H + 2). • The legislature of each state determines the mode of selection of the electors from its state. • The most likely options were • selection by the legislature itself, • popular election from districts, and • popular election on a state-wide general ticket. • Congress has the power to determine • when electors are selected, and • when electors cast their votes (which must be the same day for all states). • Originally, Congress gave the states a window of about 30 days within which to select electors. • The “Electoral College” never meets as a group in one place. • Rather electors meet and vote in their own state capitals

5. The Original Electoral College (cont.) • Electors were originally required to • cast two votes for two different candidates, • at least one of whom had to be a resident of another state, • In effect, electors could vote for one “favorite son” but we required also vote for at least one “national candidate.” • Once cast, the electoral votes of each state are transmitted to Congress, • to be counted before a joint session presided over by the President of the Senate (Vice President of U.S.). • To be elected by the Electoral College, a candidate was originally required to receive • votes from a majority of electors and • more votes than any other candidate. • Given the double vote system, these requirements were logically distinct. • In particular, more that one candidate could receive the required majority.

6. The Original Electoral College (cont.) • If no candidate meets both requirements, the election is “thrown into the House of Representatives.” • The House chooses • between the two (or more) tied candidates, in the event both (or all) received votes from a majority of electors, or • (in the original EC) among the top five candidates, in the event no candidate received votes from a majority of electors. • Voting in the House is by state delegation, with each delegation casting one vote. • Balloting continues until some candidate is supported by a majority of state delegations. • In any event, in the original EC, the runner-up Presidential candidate would become Vice President (an office that had never been previously discussed). • The framers evidently believed that a second prize was necessary to induce electors to take their second votes seriously.

7. The Original Electoral College: An Example THE ORIGINAL ELECTORAL COLLEGE BEFORE THE 12th AMENDMENT AND USING THE PROVISIONAL APPORTIONMENT OF HOUSE SEATS House Size = 65 Number of Electors = 65 + 2 × 13 = 91 Number of Electoral Votes = 2 × 91 = 182 Maximum Vote Any Candidate Can Receive = 91 (one vote from every elector) Required Majority = 46 (one vote from a majority of electors) If no one gets 46 votes or if there is a tie among those who do: Required Vote in House = 7 In any event, runner-up becomes Vice President [Note: these numbers were never actually used.]

8. Expectations Concerning the Original EC • This original Electoral College system was designed to operate in a non-partisan environment. • It therefore was expected that • typically there would be many potential Presidential candidates, • who would not declare themselves as such, let alone actively campaign for the office, and • electors would choose among these candidates on the basis of their character and connections, not party affiliation or policy promises. • Therefore, it was also expected that electoral votes would be widely scattered and the “House contingent procedure” would be used “19 times out of 20,” so • big states would have the dominant role in “screening/nominating” candidates (in the EC), while • small states would have equal role in most final/runoff elections (in the House).

9. Expectations Concerning the EC (cont.) • It was generally hoped and expected that electors would typically be • popularly elected • from single-member districts (like most state legislators, delegates to the state ratifying conventions, members of the British House of Commons, and as was expected also for members of the new U.S. House); and • that they would be well-informed local notables who would act as representative trustees of their states and districts.

10. The Hazardous Game: President Selection under the Original Electoral College • The two-vote and VP-is-runner-up system produced problems from the very start. • In the very first election of 1789, it was generally agreed that • George Washington should be the first President and • John Adams should be the first Vice President. • Most or all electors were expected to cast one vote for Washington and one vote for Adams. • Alexander Hamilton (who disliked Adams) was afraid that some New England electors would withhold votes from Washington, thereby making Adams president. • In anticipation of this, he urged some other electors to withhold votes from Adams. • In fact, all electors voted for Washington but quite a few did not vote for Adams, • so in fact the agreed upon “ticket” was elected.

11. The Election of 1789 • Not literally unanimous • Double-vote system • NC and RI had not yet ratified • NY failed to cast electoral votes Scattering of second votes • Fears that northerners wanted to make Adams President

12. The Election of 1792 • We see beginnings of the Federalist-Republican two-party system in the second (“Vice Presidential”) votes

13. Duverger’s Law and the Hazardous Game • Duverger’s Law: Given politically ambitious candidates, single-winner elections produce (in equilibrium) two-candidate contests and sustain a two-party system. • Conversely, parliamentary systems using proportional representation in large multi-winner districts tend to produce and sustain multi-party systems. • Presidential elections are intrinsically single-winner. • Members of the U.S. House and state legislatures were mostly elected from single-member districts, also creating single-winner elections. • The framers’ expectations did not anticipate the development of a national two-party system. • By 1796, a two-party [Federalist vs. Republican] system had developed, • with each party running its own Presidential+Vice Presidential ticket. • Given such a party system, the combination of the double-vote and runner-up-is-VP provisions of the original Electoral College proved to be a fatal flaw.

14. The Hazardous Game:1796 • The first contested Presidential election: • Federalists: John Adams (MA) & Thomas Pickney (SC) • Republicans: Thomas Jefferson (VA) & Aaron Burr (NY) • They were “nominated” by their respective Congressional Caucuses. • Note the regionally balanced tickets. • Intra-Federalist maneuvering: • Hamilton (continuing to feud with Adams) unsuccessfully urged some Southern electors to vote for Pickney & anybody but Adams • However, some Northern electors learned about this and withheld votes from Pickney. • The electoral vote outcome was very close: • Federalists won 71 electors, all of whom voted for Adams, giving Adams the required majority of 70 for election as President. • Republicans won 68 electors, all of whom voted for Jefferson. • But the withholding of second votes from Pickney lowered his vote total to 59, dropping him to third place behind Jefferson, • So the defeated Republican Presidential candidate became Vice President. • Burr had only 30 votes

15. The Election of 1796 (cont.)[Electors =138; Electoral votes = 276, Required majority = 70]

16. The Election of 1796 (cont.) Sectionalism is evident, despite the sectionally balanced tickets. Many states did not select electors by popular vote. Most state electoral votes are cast winner-take-all.

17. Lessons from the Hazardous Game • Electors are expected to be party men, • i.e., “pledged electors.” • However, Samuel Miles (Fed. PA) violated his pledge. • An angry Federalist supporter complained: “What, do I chuse Samuel Miles to determine for me whether John Adams or Thomas shall be President? No! I chuse him to act, not to think.” • State legislative elections (perhaps coming a year or more in advance of Presidential elections), become very important for politicians with national ambitions, because • legislatures chose how to select electors and may change the method from election to election; and • legislatures may choose to appoint the electors themselves.

18. Lessons from the Hazardous Game (cont.) • A party that controls a state legislature may not want to risk a popular election for electors. • States using legislative election increased to 10 in 1800. • And if a controlling party is confident it can win popular election, the particular mode of popular election can be manipulated to short-term party advantage. • Madison to Monroe (1800): • “All agree that an election by districts would be best if it could be general, but while ten states choose either by their legislatures or by a general ticket, it is folly or worse for the other six not to follow.”

19. The Hazardous Game: 1800 • Largely a repeat of 1796: • almost the same tickets (C.C. Pickney replaces T. Pickney); and • Basically the same battle lines, but • Republicans had taken control of NY legislature, while • The bicameral PA legislature was under divided control. • However, the strategic implications of the EC rules were better understood: • manipulation of elector selection; and • danger of withholding too many votes. • The election of 1800 was as close as 1796 but tipped the other way. • Republicans won 73 electors vs. 65 for Federalists. • The Republicans (unlike the Federalists) failed to withhold one “Vice Presidential” electoral vote. • Jefferson: 73 Pickney: 64 • Burr: 73 Jay: 1 • Adams: 65

21. The Hazardous Game: 1800 (cont.) • But the original EC rules did not distinguish between “Presidential” vs. “Vice-Presidential” electoral votes. • So the election was “thrown into House,” under the contingent procedure, • choosing between the tied candidates Jefferson and Burr only. • Burr did not chose to withdraw. • Four electoral votes from GA had been improperly certified, but the “intent of the voters” was clear (four votes for each of Jefferson and Burr). • Had they been disqualified as invalid, no candidate would have received the required 70 electoral votes, in which case • the House could have chosen any of the five candidates as President. • But Vice President Jefferson, presiding over the counting of electoral votes, “counted himself [and Burr] in.” • Note that the single Federalist elector who voted for Adams and Jay could have voted for Adams and Burr, • in which case Burr would have immediately been elected President on the basis of electoral votes (with no House election) and • Jefferson would have remained Vice President.

22. The Hazardous Game: 1800 (cont.) • Until 20th Amendment (1933), a newly elected Congress did not convene until late in the year following Congressional elections. • So the electoral votes were counted by the “lame duck” Congress, and the 1800 Presidential election was thrown into the “lame duck” House elected in 1798, which was still controlled by the Federalists (55-50), though Republicans would control the House elected in 1800. • There were 18 state delegations, so 10 votes were required for election. • Each delegation would decide how to vote by majority vote within the delegation. • Republicans controlled 8 state delegations. • Federalists controlled 6 state delegations. • Two state delegation were equally split (with respect to Jefferson vs. Burr). • Evidently, virtually all Republican representatives supported Jefferson as the intended Presidential candidate. • Likewise, virtually all Federalist representatives supported Burr, in order to deny the presidency to more formidable Jefferson. • The two internally tied delegations had to abstain. • For 35 ballots, the House deadlocked: Jefferson 8 and Burr 6 with 2 abstentions. • Ultimately, the some Federalists within in the tied delegations abstained, resulting in Jefferson’s election on the 36th ballot.

23. The 12th Amendment • After the 1800 fiasco, Congress proposed, and the states quickly ratified (in time for 1804 election), the 12th Amendment to the Constitution. • Electors now cast separate (single) votes for President and Vice President. • The required electoral vote majority for President (and for Vice President) is a simple majority of votes cast (= number of electors), which at most one candidate can achieve. • If no candidate receives the required simple majority for President, the House (still voting by state delegations) chooses from among the top three [vs. top five] candidates. • If no candidate receives the required majority for Vice President, the Senate (voting individually) chooses from among the top two candidates. • Early drafts of the amendment included a requirement that electors be popularly elected from districts, but this provision was later dropped. • The 12th Amendment remains the constitutional language governing Presidential elections.

24. The Transformation of the Electoral College • By the 1830s, the Electoral College, already formally modified by the 12th Amendment, had been further transformed into the kind of (essentially) automatic popular vote counting system that exists today. • This transformation • was driven largely by the development of a two-party system, and • was brought about without any further constitutional amendments or (with one minor exception) change in federal law, • but rather by changes in state laws and party practice.

25. Elements of the Transformation (cont.) • In early elections, the mode of selecting Presidential electors was regularly manipulated by party politicians in each state, on the basis of partisan calculations. • By 1832, Presidential electors were almost universally selected by popular (vs. legislative) vote (and by much expanded electorates). • South Carolina was the lone hold out. • By 1836, the mode of popular election in every state was (following Madison’s strategic advice) the general ticket (or party slate), rather than election from districts (or by some kind of proportional representation). • This induced the almost universal “winner-take-all” rule for the casting electoral votes at the state level. • However, at the present time two small states (ME and NE) use the “Modified District Plan.”

26. Mode of Elector Selection

27. Mode of Elector Selection (cont.) • Why were state legislatures willing to give up the power to select Presidential electors? • The intensity of party competition declined after 1800. • Legislative appointment of electors was disrupting state legislative elections. • cf. the willingness of state legislatures to ratify the 17th Amendment (popular election of U.S. Senators)

28. Mode of Elector Selection (cont.) • Why did election of electors by districts give way to election of electors at-large (usually on a slate or “general ticket”)? • Partisan strategic considerations, • as expressed by Madison to Monroe in 1800. • More important: state strategic considerations. • No matter what other states may do, each state could enhance its influence in Presidential politics by casting electoral votes on a winner-take-all basis. • There is no “equilibrium” until all states use the winner-take-all method. • It turns out that this “equilibrium” results in a new balance of Electoral College voting power • that is much more favorable to the large states, • much more than counterbalancing the small-state advantage in apportionment of electoral votes.

29. Bypassing the House Runoff • Given the 12th Amendment and a two-party system, it is virtually assured that one or other Presidential (and Vice Presidential) candidate will receive the required majority of electoral votes. • Thus the Electoral College system was transformed into a vote-counting system that is in two ways more favorable to large states than the Framers expected: • not only do large states gain more power in the first (electoral vote) stage (due to winner-take-all casting of electoral votes), but also • the second (House contingent election stage) stage (where small states have equal power) is almost always bypassed.

30. “Inverse” Duverger’s Law and the Election of 1824 • The “inverse” of Duverger’s Law implies that • if one of the parties in a two-party system is greatly weakened, or is unable or unwilling to compete for votes effectively, • the dominant party is very likelyto break apart, because the external threat that otherwise keeps it together is removed. • Consistent with this “inverse” principle, the totally dominant Democratic-Republican Party split into factions in the 1824 election, • with the result that four (“serious”) candidates for President sought and won electoral votes, and • the 1824 election was “thrown into the House.” • So, with respect to the proposition that the development of the two-party system, • the election of 1824 (the second and last time an election was thrown into the House) is the “exception that proved the rule.”

31. The Election 1824 (cont.) • The four candidates were: John Quincy Adams (Secretary of State) Henry Clay (U.S. Representative and former Speaker) William Crawford (Secretary of the Treasury) Andrew Jackson (hero of the Battle of New Orleans and representative of the “common man”) Presidential election results (“first round”): Electoral VotesPopular Votes* Jackson 99 41% Adams 84 31% Crawford 41 11% Clay 37 13% Others 0 4% *Bear in mind that six states still appointed electors and that states that used popular election varied considerably with respect to the extent of franchise.

32. The Election of 1824 (cont.) • The compromise candidate Clay (most everyone’s second choice, who probably could have defeated each other candidate in a “straight fight”) was squeezed out of third place in the electoral vote ranking by Crawford. • Under the 12th Amendment, the House could chose only from among top three candidates. • Clay probably would have been elected president • if the House could still chose among the top five candidates; or • if Crawford had not been a candidate (i.e., Crawford was a spoiler to Clay). • Even if Adams or Jackson had won all the electoral votes cast for Crawford, Clay would have been among top three candidates. • However, if Jackson had won at least 32 of Crawford’s electoral votes, Jackson would have been elected without a House runoff.

33. The Election of 1824 (cont.) • Clay (a former Speaker) had great influence in the House. • He detested Jackson and endorsed Adams. • Adams (just) won on the first ballot (24 state delegations): Adams 13 Jackson 7 Crawford 4 • Adams subsequently appointed Clay Secretary of State. • Jackson and his supporters denounced the “corrupt bargain” between Adams and Clay.

34. The House Contingent Procedure • Whenever there is a “serious” third-party ticket (especially one with a geographical base of support such that it may win electoral votes), the possibility arises that the election may be thrown into the House arises. • Moreover, since the 23rd Amendment (giving the District of Columbia three electoral votes) was ratified in 1961, the total number of electoral votes has been an even number (538), • so a 269-269 electoral vote tie is possible, and • an election might be thrown into the House even in the absence of a third-party candidate winning election votes. • Prior to the 1825 House election, the House adopted special rules for its conduct. • These rules remain in effect and would (presumably) by used in any future House election.

35. The EC as a Vote-Counting Mechanism • In 1845 Congress established a uniform nationwide Presidential election day (i.e., day for selecting Presidential electors), namely • the Tuesday after the first Monday in November. • On November 4, 2008, voters in each state will go to the polls and vote for either the Democratic or Republican (or possibly some other) slate of elector candidates, who are pledged to their party’s (Pres. + VP) nominees. • With popular election of slates of pledged electors, American voters may be forgiven for thinking they are actually voting directly for a Presidential-Vice Presidential ticket. • Often only fine print on the ballot indicates otherwise • and in some states not even that.

36. Vote-Counting Mechanism (cont.) • In each state, the elector slate receiving the most votes is elected (with the possible exceptions noted for ME and NE). • The electors will meet in their state capitals in mid-December and cast their electoral votes as pledged. • Electoral vote tallies will be transmitted from each state capital to Congress and will be counted before a joint session on January 5, 2009. • The President of the Senate [Vice President Cheney] will announce the votes for President and Vice President and proclaim that ?? and ?? are the President-elect and Vice President-elect. • So (almost certainly) everything will be determined on election night in November, and the remaining steps are merely ceremonial; that is, TV prognosticators can • report the popular vote winner in each state, • add up the corresponding electoral votes, and • declare a President-elect.