THE ORIGINS AND TRANSFORMATION OF THE ELECTORAL COLLEGE

1. THE ORIGINS AND TRANSFORMATION OF THE ELECTORAL COLLEGE

2. Conflicting Assessments of the Framers’ Presidential Selections System • Hamilton's assessment: “if not perfect, at least excellent” [Federalist 68] • Subsequent evaluations and proposed constitutional amendments • Part of a generally elitist and anti-democratic constitution • A last-minute jerry-built compromise • A brilliantly designed compromise of diverse considerations • The embodiment of well-thought selection criteria [James Ceaser, Presidential Selection] • A non-partisan selection system • Rapidly transformed accommodate the political parties that formed almost immediately.

3. Menu of Basic Options • Selection by states • Selection by National Legislature [Congress] • Selection by the people • Mixed systems • first round (“nomination”) • second round (“election” or “runoff”) • “intermediate electors”

4. Refining the Options • Selection by states • election by state legislatures • election by an “executive council” of state executives • one state, one vote?

5. Refining the Options (cont.) • Selection by National Legislature (Congress) • standard state-level practice at the time • the “default option” • found in both Virginia and New Jersey plans • Relation to the character of National Legislature • probably bicameral • selection by the House • by individual representative • by state delegations • selection by the Senate • selection by the whole Congress • by joint ballot • by concurrent ballot [like laws]

6. Refining the Options (cont.) • Popular election • the New York (and Massachusetts) precedent • Variants • direct popular election • indirect popular election through inter-mediate electors • legislative runoff

7. The “Three-Dimensional Chess Game” • The selection system • Term of office • short term (one or two years) • medium term (four years) • long term (seven years) • good behavior • Re-eligibility for selection

8. Strategic Calculations • “Nationalist” objections to election by states • too much like the Articles of Confederation

9. Strategic Calculations (cont.) • “Separationist” objections to legislative selection • bad state-level precedent • provincialism • legislative supremacy risking tyranny • induces "intrigue," cabal, and foreign manipulation • induces executive dependence on legislature • to mitigate above, link legislative selection to • long term • no re-eligibility, but • problem of executive accountability (cf. 22nd Amendment) • particular manner of legislative election • maintaining Connecticut Compromise (already fixed)

10. Strategic Calculations (cont.) • Advantages of popular elections • Separation from legislature and states • Connection between people and national government • Multiple Votes (three or two with one out-of-state) • Seen as advantageous to smaller states • Objections to popular election • Too much “democracy” • absence of media and information • parochialism • Antifederalist objections • national election • advantage of wealth and recognition • big vs. small states (upsetting Connecticut Compromise) • suffrage eligibility (North vs. South) or national suffrage • avoided in House elections • Southern states and 3/5 compromise • “nominations” and multi-candidate election

11. Strategic Calculations (cont.) • Appeal of intermediate electors (vs. popular or legislative election) • more "refined" opinions • manipulation of state weights • temporary parallel body avoids "intrigue" • Objections to intermediate electors • expense for peripheral states • vulnerability to foreign manipulation

12. Strategic Calculations (cont.) • Other strategic considerations • prospective Presidential contestants expected to represent states • Multi-candidate elections • double (or multi-) vote systems • required majorities • number of candidates in runoff

13. Convention Dynamics • Legislative election as starting point • Separationist stratagems • package legislative selection with • long term • no re-eligibility • force question of accountability • force question of type of legislative selection • joint ballot vote on 8/24 • seek small-state allies • Referral to Committee on Postponed Matters

14. The Committee Compromise • Use intermediate electors (“Electoral College”) • allocated by total Congressional representation • selection prescribed by state legislature • meet separately in state capitals • Voting system • double vote system (cf. approval voting) • non-cumulative • out-of-state requirement (cf. Bush and Cheney) • Counting of votes before joint session of Congress • Vote counting rule for Electoral College selection • Required • support from a majority of electors, and • more than any other candidate • Otherwise “contingent procedure” (runoff) • selection by Senate • from top five candidates • from among tied candidates • Creation and selection of the office of Vice President • runner-up in presidential voting

15. Convention Decision • General approval • “consensus by exhaustion” • Replacement of Senate by House • voting by state delegations • Temporary House apportionment • House size = 65

16. Article II, Section 1 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 the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. The electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each state having one vote; A quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice President. The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

17. 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 a tie among those who do: Required Vote in House = 7 Runner Up Becomes Vice President [Note: these numbers were never actually used]

18. Expectations of Delegates • Electors would typically popularly elected from [SMD] districts (like House members, state legislators, and ratifying convention delegates). • Electors would make substantially independent voting choices. • The contingent procedure would be used “19 times out of 20.” • big states would have dominant role in “nominating” candidates • small states would have equal role in final election • further indication that rise of national (two-) party system was not anticipated • George Washington would be the first president.

19. Rules for Games That Were Never Played Variations on double-vote/VP is presidential runner-up system No VP VP runner-up Single Vote (A) (B) Optional 2ndVote (C) (D) Mandatory 2nd (D) (E) [(E) was actual provision]

20. Rules for Games That Were Never Played (cont.) • In a non-partisan environment, what kinds of Presidential candidates to expect? • factional candidates (or “favorite sons”) • intensely supported by one or a few states • little support elsewhere • sectional candidates • strongly supported by a region or section of the country • little or no support in other sections • national candidates, • with considerable (but perhaps “second preference”) support throughout the country. • Prospective scenarios?

21. 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

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

23. The Election of 1796 • The first contested Presidential election: • Federalists: John Adams (MA) & Thomas Pickney (SC) • Republicans: Thomas Jefferson (VA) & Aaron Burr (NY) • “Nominated” by their respective Congressional Caucuses • Note the regionally balanced tickets. • Intra-Federalist maneuvering: • Hamilton (who had feuded with Adams) unsuccess-fully urged some Southern electors to vote for Pick-ney & anybody but Adams • However, some Northern electors learned this and withheld votes from Pickney (=> Ellsworth and others)

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

25. The Election of 1796 (cont.) • The electoral vote outcome was very close: • Federalists won 71electors, 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 Pick-ney lowered his vote total to 59, dropping him to third place behind Jefferson, • So the defeated Republican Presidential candidate became Vice President. • Republican electors were even less resolute in following the “party line” in casting their second votes. • Burr had only 30 votes

26. The Election of 1796 (cont.) Sectionalism is evident, despite the sectionally balanced tickets. Many states did not select electors by popular vote.

27. Lessons from the Hazardous Game • Electors are expected to be party men. • “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 for election to election; and • legislatures may choose to appoint the electors themselves • The party that controls a state legislature may not want to risk a popular for electors. • States using legislative election increased to 10 in 1800.

28. Lessons from the Hazardous Game (cont.) • And if a controlling party was confident it could win popular election, the mode of popular election (using at-large election rather than districts) could 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.”

29. Election of 1800 • Largely a repeat of 1796: • same candidates; • same battle lines. • However, the strategic implications of EC rules were better understood: • manipulation of elector selection; • danger of withholding votes. • Equally close as 1796 but tipping the other way. • Republicans win with 73 electors vs. 65 for Federalists.

31. Election of 1800 (cont.) • The Republicans (unlike the Federalists) failed to withhold one “Vice Presidential” electoral vote. • Counting of Electoral Votes before joint session of Congress: • Jefferson: 78; • Burr: 78; • Adams: 65; • Pickney: 64; • Jay: 1 • So election was “thrown into House,” under the contingent procedure, • choosing between Jefferson and Burr only. • Burr did not chose to withdraw.

32. Election of 1800 (cont.) • Until 20th Amendment (1933), the new Congress did not convene until late in the year following Congressional elections. • So the Presidential election was thrown into the “lame duck” House elected in 1798, which was controlled by the Federalists (though Federalists had lost control of the House elected in 1800). • Federalists generally supported Burr in order to deny Jefferson the presidency. • Several state delegations were internally deadlocked. • House deadlocked for 35 ballots. • Ultimately, Hamilton let it be known he preferred Jefferson to Burr, and enough Federalists switched to end deadlock on 36th ballot

34. The 12th Amendment • Consistent with “Duverger’s Law,” single-winners elections produce two-party competition, which the original Electoral College could not readily accommodate because of • double-vote system; and • runner-up becoming Vice President. • Republicans are anxious not to let these anomalies occur again. • Congress proposes, and states quickly ratify (in time for 1804 election) the 12th Amendment.

35. The 12th Amendment (cont.) • Electors cast separate votes for President and Vice President. • The required electoral vote majority for Presi-dent and for Vice President is a majority of votes cast (= number of electors). • If no candidate receives the required majority for President, the House (still voting by state dele-gations) choose from among the top three [vs. top five] candidates. • If no candidate receives the required majority for Vice President, the Senate chooses from among the top two candidates.

36. The 12th Amendment (cont.) The electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate;--The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;--the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. . . . The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

37. Transformation of the Electoral College • By the 1830s, the Electoral College had been transformed into the kind of (essentially) auto-matic vote counting system we are familiar with today. • Elements in this transformation: • pledged (and faithful) electors (largely in effect by 1796); • the 12th Amendment (ratified by 1804); • popular election of electors (almost universal by 1832); • election of electors at-large (more or less “winner-take-all”) rather than from districts; and • a two-party system that bypasses the House contin-gent election (1824 being the “exception that proves the rule”).

38. Mode of Elector Selection

39. 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. willingness of state legislatures to ratify the 17th Amendment (popular election of U.S. Senators) • The lone holdout was South Carolina

40. 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. • cf. Florida’s consideration of district elections in the mid-1990s • There is no “equilibrium” until all states use the winner-take-all method. • Put otherwise, there was “Prisoners’ Dilemma Game” among the states.

41. State strategic considerations (cont.) • However, when the equilibrium of “all states using winner-take-all” is reached, the previous balance of power among the states based on the apportionment of electoral votes (modestly favorable to small states) is not restored. • Rather the new balance of power is much more favor-able to the larger states, probably much more than counterbalancing the small state bonus in EV appor-tionment. • We return to the topic of “voting power” in the Electoral College in Topics #31-32 of the syllabus.

42. “Almost Winner-Take-All” • By the 1830s, almost all states had moved to popular election of electors on an at-large or state-wide basis. • Most states used a general ticket system in which votes chose among party slates of elector candidates. Vote for one slate of electors: Democratic electors Republican electors • This effectively guaranteed that a state’s electoral votes would be cast on a “winner-take-all.”

43. “Almost Winner-Take-All” (cont.) • However, in some states electors ran as individuals on a generalize plurality basis. Vote for no more than four elector candidates D1 R1 D2 R2 D3 R3 D4 R4 • Typically almost every voter would vote for all Democratic elector candidates or all Republican elector candidate, again producing a “winner-take-result.”

44. “Almost Winner-Take-All” (cont.) • However, when the Presidential contest was very close, small discrepancies among the votes for elector candidates might produce a divided electoral vote: D1 93,456 R1 91,993 D2 93,381 R2 91,553 D3 92,358 R3 90,852 D4 91,679 R4 90,761 • In this case: • The electoral vote would be divided 3 for the Democratic ticket and 1 for the Republican ticket. • By convention the “popular vote” for President in this state would be recorded as: Democratic ticket 93,456 Republican ticket 91,993

45. Democratic-Republican vs. Federalist Competition for Electoral Votes: 1796-1820 • There was a minor split in Democratic-Republican ranks in 1812. • DeWitt Clinton sought the Presidency as an “Independent Democratic-Republic” and was endorsed by the Federalists. • Democrats did the same in 1872 when Horace Greeley ran as a “Liberal Republican.”

46. Duverger’s Law • Single-winner elections, especially conducted on the basis of Simple Plurality Voting, tend to produce and sustain two-candidate (and two-party) elections “in equilibrium.” • Conversely, parliamentary systems using proportional representation in large districts tend to produce and sustain multi-party systems. • In part, Duverger’s Law is driven by strategic voting by ordinary voters who are reluctant to “waste” their votes by voting for third candidates/parties that have no real chance of winning.

47. Duverger’s Law (cont.) • In much greater part, Durverger’s Law is driven by the strategic calculations of ambitious candidates and parties. • If a party splits and runs two (more or less clone) candidates, they will be spoilers against each other and throw the election to the other party. • This prospect of electoral disaster creates a huge incentive for even a highly factional party to unite behind a single candidate. • Conversely, if there three significant candidates or parties are contesting an election, there is a huge incentive for two of them “to make deal” under which one makes a strategic withdrawal in favor of the other (in return for something). • In general, each party in a competitive two-party system has a huge incentive to remain united and not split into rival faction that run candidates in general elections.

48. Duverger’s Law (cont.) • With respect to the Electoral College system, Duverger’s Law implies that (contrary to the Framers’ expectations) the House contingent procedure will be bypassed at least “19 times out of 20.” • Thus the Electoral College system is trans-formed into something still more favorable to large states than the Framers expected, i.e., • not only do large states gain more power in the first (electoral vote) stage (due winner-take-all electoral votes), but also • the second (House contingent election stage) stage (where small states have equal power) is almost always bypassed.

49. Duverger’s Law (cont.) • 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. • So the 1824 election was “thrown into the House.”

50. The Election of 1824 • Initially, there were five prospective Presidential candidates (all Democratic-Republicans), “nominated” by their state legislatures and supported by their regions: • John Quincy Adams (Secretary of State) • John C. Calhoun (Secretary of War) • Henry Clay (U.S. Representative and former Speaker) • William Crawford (Secretary of the Treasury) • Andrew Jackson (Army General, hero of the Battle of New Orleans) • Thus 1824 was an essentially a non-partisan election, more or less of the nature that the Framers expected. • In due course Calhoun withdrew his Presidential candidacy and became the (more or less) consensus candidate for Vice President.