Friday, October 16, 2020

The Electoral College Is Not Broken

Guest Blogger

For the Balkinization Symposium on  Alexander Keyssar, Why Do We Still Have the Electoral College? (Harvard University Press, 2020), and Jesse Wegman, Let the People Pick the President: The Case for Abolishing the Electoral College (St. Martin's Press, 2020).

Franita Tolson

Scholars tend to paint the Electoral College as some irrational mechanism that made little sense in 1787 and makes even less sense today.  Perhaps that’s true, but the sheer number of times that we have tried—and failed—to fix the Electoral College leads one to wonder if the problem is not the College; instead, the problem seems to be that we have repeatedly gambled on our politics to see us through each election meltdown.  It is a gamble that we take time and time again, in a system that we claim is broken, yet refuse to fix.  The two excellent books that are the subject of this symposium—

Alexander Keyssar’s Why Do We Still Have the Electoral College and Jesse Wegman’s Let the People Pick the President: The Case for Abolishing the Electoral College—invite us to engage in a thought experiment in which we assume the Electoral College works exactly as intended.  After all, one can only conclude that our failure to squarely address the core institutional defects of the Electoral College and our subsequent turn to politics (or normal legislation) to paper over these defects undermines arguments the Electoral College is broken.  More pointedly, to the extent that the Electoral College was actually intended to be a reflection of pure politics post-Twelfth Amendment—and there is substantial evidence of this—the claim that the system is broken is even less compelling.  Instead, the Electoral College reflects either the best or the worst of our politics; when we are antidemocratic or antimajoritarian or dysfunctional, so too is the Electoral College.

The Founding generation crafted the Electoral College to avoid difficult questions about slavery, representation and voting rights, an avoidance strategy that would help usher the country into civil war.  In 1787, direct election of the president failed because the south wanted a political advantage from their slaves.  There was also widespread suspicion of the ability of average Americans to choose one worthy of the office; in many ways, the College was both a compromise with a regional minority seeking political advantage from chattel slavery as well as a response to the concern that the people would simply vote for local favorites.  But the rise of partisan politics in the 1790s would reveal a third fault line: that the design of the Electoral College could result in a President who lacked popular support, support as filtered through and determined by the two major political parties.

The Twelfth Amendment was the first constitutional amendment that was crafted with partisan politics in mind.  It distinguished the offices of the President and the Vice President which, as we know from Alex’s book, was not only a response to the chaos of 1800, but a partisan move to eliminate the ability of political minorities, like the Federalists, to manipulate election outcomes.  In fact, everything about the Amendment and its final language seemed to be motivated by partisanship.  For example, the Democratic Republicans had expressed strong support for allocating electors among districts rather than having a general ticket system after the 1800 election, but arguments that the district system would more accurately reflect popular preferences quickly fell out of favor upon the realization that Federalists would be able gain electors under that system.  In fact, the Twelfth Amendment left in place many of the anti-democratic elements of the original design (i.e., the possibility of winner take all or allocation of electors by the legislature).  The political environment in which the Democratic Republicans controlled most of the state legislatures in 1800 and would continue to do so 1804 was, in their view, sufficient to impart upon the Electoral College a spirit of majoritarianism that would ensure that the winner had majority political support.  However, the focus on short term political gain meant that the Framers fixed the Aaron Burr problem to the extent that one intended to be vice president could not become president, but did not eliminate the possibility that another who lacked majority support couldn’t win the office.

While the Framers of the Twelfth Amendment couldn’t have predicted the extent to which third parties would play a sometimes crucial role in altering electoral outcomes, they purposely left many core decisions to be decided by the dominant political coalition in a way that facilitated this possibility.  The debate over the Twelfth Amendment reveals that there is nothing about our system that requires democracy.  Instead, there was an assumption by the Jeffersonian Republicans in 1803 that majoritarianism defined and shaped by the two party system would lead to more democratic outcomes.  But actual democracy and a faint-hearted commitment to majoritarianism is not equivalent.  Many political elites described this country as one in which there was majority rule when, for example, most states eliminated property restrictions for voting (while still retaining race and gender restrictions).  This was also true during Reconstruction, when voting rights were extended to black men (but not women of any race).  Thus, majoritarianism is not a term that is inherently democratic or plutocratic or anything really.  Who constitutes the majority is defined by state law, and by extension, partisan politics.  The possibility of anti-democracy within our system is a feature, not a bug, of the Electoral College.

 There are also other anti-democratic elements of the Electoral College that survived the Twelfth Amendment.  The failure to replace the Electoral College in its entirety meant that the Twelfth Amendment retained the original pact between slaveowners and the rest of the nation, leaving the south with enhanced political power relative to the number of free persons in its borders.  And the failure to require district elections in lieu of winner-take-all created further space for a political minority to rise to the presidency, despite assumptions by the Jeffersonians that a consensus candidate would emerge under the revamped system.  As Ned Foley has persuasively argued, the Framers expected that the president would be a consensus candidate of a compound majority of majorities, winning majorities and not pluralities in the states that were key to the candidate’s electoral college victories.  But in service of that purpose, the Twelfth Amendment purposely left in place a system in which there was still a distinct risk in which a political minority could gain the presidency.  While Ned would say this type of win is illegitimate, I think that, after reading Alex’s work, it may be better to view the minority president as the downside to a political calculation that the Framers of the Twelfth Amendment made in 1803.  In 1803, they knew that Article II’s delegation to the states to appoint the manner of choosing electors was subject to partisan manipulation, but they did nothing to change it.  Why? Because the Jeffersonians opted for immediate political gain (i.e., they held majorities in enough states in 1804 that it made little partisan sense to constitutionalize a system of district elections that could disadvantage them) as opposed to long-term political stability in which the preferences of the majority writ large would always be dispositive.      

 Given this, the only real post-Twelfth Amendment reading of the Electoral College that is consistent with its original intent (or original understanding or whatever your brand of originalism or progressive constitutionalism) is that politics matters.  The politics informs both the text and structure of the Amendment.  Along these lines, it is easy to read Chiafalo v. Washington, and think that the Supreme Court is embracing a vision of democracy and democratic representation that involves a very generous (maybe too generous?) interpretation of Article II in holding that states can penalize or remove electors who vote differently from the popular vote in the state.  But the opinion is less about democracy, as such, and is the Court’s acceptance of an invitation extended by the Twelfth Amendment to interpret Article II in light of partisan politics.

The problem for any lover of democracy is that the Court’s vision of politics can also live alongside an outcome in which a political minority can put together a coalition sufficient to win the office of the presidency by cobbling together state by state plurality wins.  The Framers of the Twelfth Amendment gambled when they failed to enshrine district elections or proportional allocation in its text, opting instead to constitutionalize partisan politics and permit political majorities in each state to dictate how electoral votes would be allocated.  This is the gamble that we continue to take by failing to change the constitutional mechanism that has paraded our political and institutional failures time and time again for the world to see.  We maintain this system despite the 1876 election that brought the country to brink of dueling inaugurations; despite missed opportunities for change in virtually every decade since the Era of Good Feelings; despite the justifiable anger engendered by the disconnect between the Electoral College and the popular vote in five elections and counting—and so the story goes until it becomes clear that we can no longer say that the failure is the system that we have purposely retained.  In some ways, Alex’s book is the story of how, every decade or two, we fight the same battles, premised on the idea that the Electoral College is broken, when the problem is both our long-term complicity and our broken politics.    

There is, nonetheless, a silver lining to our institutional conundrum.  Viewing the Electoral College as a creature of pure politics means that Jesse’s focus on our steady tread towards democracy as a justification for popular election of the president comfortably fits within this framework.  The Electoral College can be a vehicle for democratic change, just as it can be a vehicle for anti-democracy and anti-majoritarianism.  A large part of Jesse’s book captures the conflicting ideals of the founding generation—we often focus on those who did not trust popular elections like Elbridge Gerry or Roger Sherman but ignore the James Wilsons of the world who placed their faith in the people.  The conflicting views of this generation, understandably in tension, explain why we still have an Electoral College.  The choice of which view becomes prevalent—whether the people should pick the president or, alternatively, the people should not because they are the dupes of pretend patriots— is a function of political cycles.  It all comes back to politics.  There have been cycles in which the arc of the moral universe leans towards broad enfranchisement and popular election of the president (to mangle Dr. King’s famous phrase).  The fact that there are currently 16 jurisdictions that have a combined 196 electoral votes that have signed on to the National Popular Vote Interstate Compact means that, if adopted, the Electoral College will resemble Wilson’s vision.  But the Electoral College always offers the prospect that anti-majoritarianism and anti-democracy will win the day; as such, the Compact can be nothing but a band-aid rather than a long-term fix.  Regardless if the Electoral College is governed by the Compact or winner take all or districted elections or any of the possibilities that have presented at various points in our history, the core of the Electoral College remains the same: subject to the whims, vagrancies and pathologies of our system of politics, just as the Framers of the Twelfth Amendment intended.     

Franita Tolson is Professor of Law and Vice Dean for Faculty and Academic Affairs, USC Gould School of Law, University of Southern California. You can reach her by e-mail at ftolson at


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