Joshua Spivak: How the Electoral College Came into Existence





Joshua Spivak, in The Hill (Oct. 26, 2004):

[Joshua Spivak is an attorney and media consultant.]

With a close, bitterly contested election coming to a possible photo-finish, the Electoral College is in for yet another beating. America's presidential election system is clearly the most heavily critiqued part of the original Constitution, as many complain about its anti-democratic distorting effect.
Calls go out from the editorial pages of leading newspapers to change the system to a strictly popular vote method.

However, for all of the ink that has been spilled about the Electoral College over the last few years, there has been a dearth of explanations for why the college exists, and how it was originally designed to work. The Electoral College was actually an intelligent compromise between many competing interests -- another mark in the system of checks and balances.

The avalanche of criticism would have come as a surprise to the founding fathers. The members of the Constitutional Convention of 1787 were particularly proud of the electoral system. Alexander Hamilton called the future Electoral College "excellent" and wrote that the method of selecting presidents was "almost the only part of the system, of any consequence, which has escaped without severe censure."

The many "anti-Federalist" opponents of the Constitution did not focus on what was to be called the Electoral College. Going back to the summer of 1787, the convention was not particularly focused on the executive branch.
Congress, not the president, was intended to be the locus of power, and the first months were focused on shaping the Great Compromise between large states and small -- the creation of a house of representatives apportioned by population and a Senate, where each state received two members. When the convention took up the presidency, they did not want to risk the compromise that had been forged. Rather, like the rest of the constitution, it was a compromise between a number of interests, large states and small, north and south, nationalists and state-righters.

Looking back, it is clear that the popular election of a president was not a prime concern, though not for the reasons many think. The option of choosing a president by popular vote was voted on a number of times during the convention, and only two states voted in its favor.

There were a number of reasons to oppose popular vote: Many of the conventioneers believed that the country was too large to directly elect the president; some Southerners realized their state's impact would be diluted, as the three-fifths compromise gave the slave states more impact in Congress than they would have in a popular vote; some states'-rights advocates wanted the states to have more of a say in the selection; small states were concerned that their votes would be drowned out; while still others simply did not trust the people to choose properly.

However, perhaps the most important reason for the lack of enthusiasm for the popular vote was that there was little experience in directly electing
executives: Throughout the country, the governors - the chief executives of each state -were not chosen by the voters. Instead, in 10 of the 13 original states, the state legislature chose the governor, and in two of the other three states, if no candidate received a clear majority, the legislature made the choice. This was the model for election that the conventioneers drew on. The original plans brought to Philadelphia, and the first outlines of a presidency adopted by the convention, all provided for election of the chief executive by Congress.

However, as every student is taught, America's government is built on the principle of checks and balances. The convention was concerned about handicapping the president by placing too much power in Congress' hands.
Therefore, a committee eventually designed an alternate Congress of electors, made up with the exact same amount of members, to choose the candidates. They also specifically banned any federal office holder from being a member of this congress, and, as an added protection, the electors did not meet as a national group, but rather met in each individual state.

Despite the creation of what would one day be the Electoral College -- it was not called this until the 1800s -- Congress still had some part to play in the selection of a president. In order to prevent the big states from dominating the choice, each elector was given two votes, one of which had to be cast for someone from another state.

Because of the diffuse nature of the nascent republic, many believed that the electors' votes would be divided among favorite sons, and therefore they would be unable to select a president. If this came to pass, the electors would have served as a nominating committee. The top five candidates would be sent to Congress, which would then select a president in a state by state vote of the congressional delegations, the winning candidate needing a majority of the states to succeed, the second place candidate would be the vice president.

This situation, where Congress selected the president from a set of nominees, came about twice, first in 1800 and then in 1824. The first resulted in the 12th Amendment, changing the Electoral College by dividing up the elector's vote into one for a presidential candidate and one for a vice presidential candidate; the second resulted in the creation of a strong two party system. With the exceptions of the disputed elections of 1876 and 2000, the Electoral College has since selected the president without complaint.

Despite the criticisms, it is clear that the Electoral College was not a hastily thrown together "Rube Goldberg" contraption, designed as an anti-democratic device intended to deprive the voters of the right to choose a president. Nor was its goal to benefit a few states. Instead, the founders wanted to create a functional government that was accepted by all. While if the founders were here today, they may not be thrilled with all aspects of the current Electoral College, it has definitely served their primary goal:
Providing a stable, fairly representative government for almost all of the country's existence.


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