In the charming children’s book “Duck for President,” the title character outpaces the incumbent by five votes out of more than 101 million ballots cast. There is a national recount, and 10 more paper ballots stuck to the vice president go to the challenger. Duck wins!
But of course in real life those 10 votes would only matter if they were hanging chads in Florida. You don’t need 50,546,180 votes to be president — you need 270. The electoral college will determine the winner of the presidential election tonight.
I’ll hold off on the debate over whether this is a good thing (until Wednesday, anyway!)
Instead I want to highlight two other aspects of the electoral college (EC). First, its origins in the long-lost world of pragmatic political compromise. Second, its reminder that short-term solutions, when embedded in formal institutions, can become long-term forces that shape political behavior and outcomes.
So how did the framers of the Constitution come up with this institutional legacy? For more detail, I’d refer you to Shlomo Slonim’s essay “Designing the Electoral College,” published in Thomas Cronin’s edited volume “Inventing the American Presidency,” or to Jack Rakove’s book “Original Meanings.” But the short version is that EC is the result of a series of trade-offs between contending interests.
Keep in mind that the point of the Constitutional Convention was to write a new compact that could be approved not just by the delegates on the scene but also ratified by the states. In the 1960s, political scientist John Roche went so far as to call the EC “a jerry-rigged improvisation” that was “subsequently endowed with a high theoretical content.” It’s certainly true that the EC fit the needs of different constituencies. Even though there is a classical approximation of the EC in the Roman republic’s method for choosing its officials, that parallel doesn’t seem to have been discussed at the convention.
Instead, it was all about finding a solution to a system of several different political equations.
The moving parts included how to elect the president; how long the president’s term should be; and whether the president should be eligible to run for reelection. Some thought Congress should choose the president, either because of legislators’ superior knowledge of the candidates available, or because this would protect smaller state populations from having larger states dictate the presidential choice. After all, once the three-fifths compromise boosted slave state representation in the House, it was in their interests to push for legislative selection rather than a popular vote. They were joined by less-populous northern states, who feared that only candidates from the big states would ever win federal office.
That position won out in the first draft of the Constitution — which created a president who served for seven years and could not seek reelection.
But this rested uneasily with many delegates. Some favored popular election on either tactical or normative grounds. They wanted electoral accountability, and that also meant the ability to run for reelection. Otherwise a permanent (and perhaps corrupt) lame duck might simply cash in while in office.
But if legislators made the choice, the “work of intrigue, of cabal, and of faction” might simply cross the branches. And after all, giving one branch the ability to choose another undermined the separation of powers.
This brought the idea of electors into the conversation. One proposal was to create a national electoral college, where each state would get votes on the basis of population, but with the ratio between large and small state votes capped at 3 to 1.
Another, arguing that producing a national gathering was physically implausible, urged a state-by-state model. This had the advantage of making it much harder to corrupt all the electors at once, since those electors would be in 13 different places. But the arguments continued. How to choose those electors? Wouldn’t people just choose candidates from their own state? Wouldn’t all this just be a confusing mess?
Finally — in fact after the delegates had given up and gone back to legislative selection for a while — the committee formed to work out unfinished business came up with the EC as we know it. It walked a fine line between most of the previous objections:
- It gave larger states the edge, but not by nearly as much as a true popular vote would have done. At the time, the largest state had about 10 times the population of the smallest. (Today, that ratio is about 70 to 1.) In the EC, though, the ratio was 4 to 1 at the time (18.3 to 1 now).
- It adopted the state-by-state casting of ballots noted above.
- More crucially, it allowed the states to decide how to choose electors — via popular vote, via the choice of state legislators (something the 2000 Bush v. Gore decision specifically reinforced), or via any other method the state came up with (electoral Powerball, anyone?)
- It required electors to vote for two names, one of whom could not be from your state — so smaller states might get over the line after all, especially since . . .
- It kept legislative selection (by the House, voting by state delegation) as a backup plan, in case the EC did not have a majority. Some delegates certainly expected the EC to be the de facto nominating process, with the House as the final arbiter most years.
- Finally, by creating a temporary body that couldn’t be bribed by an incumbent president, it changed other parts of the equations. Now the president could be eligible for reelection. And since the president was now independent from the legislature, they could give that office more power.
The EC satisfied many short-term political needs, then — not least the need for different people to go back to different states and sell it as different things, so as to ensure ratification.
And that short-term solution has had a long-term impact. The 12th amendment made sure the president and vice president ran on a ticket, but otherwise the original choices made by the framers are largely intact. As scholars have long observed, institutions are often “sticky” — shaping tactics and outcomes far down the historical timeline.
Now, as in 1787, we still argue about representation and balance — between large states and small states (if no longer, thankfully, between slave states and free states), between the states and the federal government, and between the branches of the federal government.
The deal reached then was hardly satisfactory to all, and rested on a “not so great” compromise as well as the “great” one creating Congress. But it helped confirm that the United States would be a “democratic republic” — where both parts of that phrase mattered.
We can hope, at least, that a spirit of compromise — of making all of our democratic (small d) republican (small r) institutions work — will imbue all of our political actors when the electoral votes are counted.