THE ELECTORAL COLLEGE:
AN EXCELLENT BUT IMPERFECT
SYSTEM
by DANIEL R. SCHUCKERS, ESQ.
This year Americans
celebrate the 225th anniversary of the writing
of the American Constitution. The debt that modem Americans owe to the Founders of 1787 is immense: a federal system with power distributed between
the national and state governments, a tripartite system of government with checks and balances, an independent judiciary
and the rule of law. Although Americans
argue about the legacy of the Founders
and the meaning of the Constitution (as is often evident in the judicial
opinions of Justices Scalia and Breyer and as is evident in the political
campaigns and debates this presidential election year), the
American people still admire and even revere the work done by the Founders
at the Constitutional Convention in Philadelphia in 1787.
Right, Dan Schuckers
As much as Americans revere the Founders
and the basic principles of 1787, they must confront
the reality that one of the creations of the Founders
has served the Republic imperfectly. Since the emergence in the 1850's of the two major political parties,
there have been 39 presidential elections; in 36 of the elections, the Electoral
College reflected the will of the American people. In three of the elections --- 1876, 1888 and 2000
--- the Electoral College
failed to reflect the will of the American people and in each case a President was sworn into office who did not receive a majority or even a plurality of the popular votes.
In 1968, the American Bar Association
issued a report which stated that "the electoral college method of electing
a President of the United States is archaic, undemocratic, complex, ambiguous, indirect and dangerous." These six adjectives were used to support the conclusion in the ABA report that "it seems most appropriate that the election
of the nation's only two national officers
be by national referendum." The ABA report reflected
a proposal that was made and rejected
in Philadelphia in 1787 and that continues to be made 225 years later.
ORIGINS OF THE ELECTORAL
COLLEGE
Article II of the Constitution establishes the executive branch of government and the method by which the President is chosen: "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." Then, as noted by Alexander Hamilton in Federalist Paper No. 68 "the
people of each state shall choose a number of persons as electors, who shall assemble within the state, and vote for some fit person as President.
Their votes, thus given, are to be transmitted to the seat of national
government, and the person who may happen
to have a majority of the whole number
of votes will be the President."
Thus, electors from the states, not the people, not the Congress and not the state legislatures, choose the President. Direct election of the President was advocated in Philadelphia by such leading delegates as James Madison
of Virginia and James Wilson and Gouverneur Morris
of Pennsylvania, but was twice rejected in part because
of concern that the public would not know the candidates, their qualifications and their positions. Election by Congress was also considered, but also twice rejected
because of the delegates' belief that the President should be independent of Congress. Election by the state legislatures was also rejected in Philadelphia in 1787.
James Wilson of Pennsylvania was the first to suggest an Electoral College and toward the end of
the Constitutional Convention the delegates adopted
the proposal. Wilson acknowledged that the issue of how to choose the President "greatly divided the house." Although the method by which the President is elected divided the delegates in Philadelphia,
Alexander Hamilton in Federalist Paper No. 68 noted that those who favored rejection of the 1787 Constitution did not focus on the Electoral
College; the Electoral College "has escaped without
severe censure." Hamilton continued: "if the manner of (choosing the President) be not perfect,
it is at least excellent."
EXAMPLES OF IMPERFECTIONS IN THE ELECTORAL COLLEGE
An imperfection in Article II of the Constitution became
evident in 1800 when it became clear that there was no separate provision for voting for Vice President. In the election of 1800, the Republican electors voted for Thomas Jefferson and Aaron Burr with the intent of voting for Jefferson for President and Burr for Vice President. There being no provision
for voting for Vice President, the electors gave as many votes to Burr as to Jefferson
thereby forcing the election into the House of Representatives.
After 35 ballots, several state Congressional delegations switched their votes thereby ensuring
the election of Thomas Jefferson
as President and Aaron Burr as Vice President.
This imperfection in Article II was corrected
with the adoption in 1804 of the Twelfth Amendment
providing for separation ballots for President and Vice President.
For critics of the Electoral College, the election
of 1824 provides another example
of a defect in the system. In a four-candidate race, Andrew
Jackson received a plurality of the popular
vote, ie, approximately 40%, but he received only 99 electoral
votes out of a total of 261. With
John Quincy Adams having received 84 electoral votes, William Crawford
having received 41 electoral votes and
Henry Clay having received
37 electoral votes, the Presidential election was again referred to the
House of Representatives where Henry Clay as Speaker of the House wielded
considerable influence. In what Andrew Jackson called
''the corrupt bargain; Clay threw his support to Adams who won 13 of the 24 state Congressional delegations and newly-elected
President Adams appointed Clay Secretary of State.
Since the birth of the Republican Party in the 1850's and the emergence of the two-party system, three Presidential (as of 2016, four) elections have resulted
in the Electoral College vote being contrary
to the popular vote. In each case, great bitterness has resulted along with cries for the abolition or reform of the Electoral College.
In the election
of 1876, the Democratic candidate, Samuel Tilden, won a majority
of the popular vote, but the vote of the Electoral College
was marked by disputes concerning certification of electors from four states. The House and the Senate could not agree on which electors
from those four states
should be certified. For the first and only time in American history,
Congress formed a bipartisan Electoral Commission to resolve the dispute. With eight Republicans and seven Democrats
on the Electoral Commission, the electoral votes of Florida,
Louisiana, South Carolina
and Oregon were awarded to Republican Rutherford B. Hayes
thereby ensuring his victory by an electoral count of 185
to 184.
Similarly,
in 1888, the Democratic candidate, Grover Cleveland, won the popular
vote by about 100,000 votes, but Republican Benjamin
Harrison was victorious in several states
with small margins thereby
obtaining a victory in the Electoral College by a vote of 233 to 168.
In 2000, the Democratic candidate, Albert Gore, Jr., won
the popular vote by about 530,000 votes, but Republican George
W. Bush was victorious in several states with small margins, particularly in Florida after considerable litigation and a controversial decision
by the United States Supreme Court. His victory in the Electoral
College was by a vote of
271 to 266.
PENNSYLVANIA'S PRESENT SYSTEM OF SELECTING ELECTORS
The Constitution does not dictate to the states how the electors
are to be chosen in each state. For the past century, all states except Maine and Nebraska, have utilized the "unit rule," ie, "a winner take all" system. Maine with four electoral votes and Nebraska
with five electoral
votes give electoral
votes to the winner of each Congressional district (two in Maine and three in Nebraska) and two electoral
votes to the overall winner
of the popular vote in the state. All other states give their electoral
votes to the candidate who has received
the most popular
votes within that state.
Electors in Pennsylvania and in 23 other states
are not required to cast their votes for any specific candidate.
Although Pennsylvania has never had an elector deviate from the political
party which chose the elector,
other electors from other states
have chosen to be "faithless electors." If it chose to do so, the Pennsylvania Legislature could easily join 26 other states which require
electors to be bound to their pledge to vote for a specific candidate.
Section 918 of the Pennsylvania Election Code provides
that within 30 days after the nomination
by a political party's national convention, the Presidential nominee
of the party must nominate
the party's candidates "for the office of presidential electors." Thus, the electors are chosen by the party's
Presidential nominee. This year, the Republican convention in Tampa, Florida
ends on August 30; therefore, the 20 Republican electors
must be named by September
29. The Democratic convention
in Charlotte, North Carolina
ends on September 6; therefore,
the 20 Democratic electors must be named by October
6.
During the past five Presidential elections, ie, from 1992 through
2008, Pennsylvania has cast its electoral
votes for the Democratic candidates. A review of the electors during those years indicates that the party chose people
to be electors who were party loyalists, particularly state and county party officials, mayors,
county commissioners, state senators, state representatives and district attorneys.
After the Presidential election on November 6, the results will become
known and the Secretary of the Commonwealth will certify the results.
Then, according
to federal law, the 20 Republican electors
(if the Republican Presidential candidate wins a majority or plurality of the popular vote in Pennsylvania) or the 20 Democratic electors
(if the Democratic Presidential candidate wins a majority or plurality
of the popular vote in Pennsylvania) will meet in the Capitol
in Harrisburg on December
17 and cast their electoral
votes.
According to Article
II of the Constitution and as noted by Alexander
Hamilton, the electoral
votes of each jurisdiction are transmitted to Washington, D.C. During the first week of January
the electoral votes are delivered
to a joint session of Congress meeting
in the House of Representatives. The Vice-President of the United States is the President
of the Senate and the presiding officer
for purposes of conducting the official tally
of the electoral votes. When all 538 electoral
votes are tallied, the Vice-President announces the results; if any Presidential or Vice-Presidential candidate
has received 270 electoral votes,
the Vice-President declares that person or those persons
to be the winners.
PROPOSED CHANGES
IN PENNSYLVANIA'S METHOD OF SELECTING
ELECTORS
In 2011, two proposals to change Pennsylvania's method of selecting
electors were introduced in the Pennsylvania Senate. Both
proposals are, of course, state proposals
and can not affect the provisions for the operation of the Electoral
College in Article
II of the Constitution. Both seem to be motivated by a desire to have Pennsylvania's electoral votes be more reflective of the will of the people.
However, the people in one proposal
(Senate Bill No. 1116) are the American people whereas the people in the other proposal (Senate
Bill No. 1282) are the people of Pennsylvania.
Senate Bill No. 1116 was introduced by Senator Alloway
of Adams County
and has the title "The Agreement Among the States
to Elect the President by National Popular
Vote Act." There has not been much publicity
concerning this bill and it was referred
to the State Government Committee
on June17, 2011.
If enacted by enough states, ie states with a total of 270 electoral
votes, the National
Popular Vote Act would result
in the direct election of the President. The Electoral College would be preserved,
but states which pass the Act (which
would NOT become
effective until enough states have passed the Act) would
agree to cast their electoral
votes for the Presidential candidate who received a majority or a plurality
of the nationwide vote. Such states would disregard the interests of their states
in order to insure the election nationwide of a majority
or a plurality President.
Eight states (Vermont,
Massachusetts, New Jersey,
Maryland, Illinois, California, Washington and Hawaii)
along with the District of Columbia have passed the National Popular
Vote Act for a total of
132 electoral votes....138 electoral votes
short of the 270 needed to activate
it. During
the past several decades,
public opinion polls have indicated that a clear majority of the American
people support the idea of the President
being chosen by a nationwide popular vote system.
Although this proposal
would eliminate the possibility of a
President being elected
by less than a majority
or a plurality of the popular
vote, critics have noted that this proposal
would greatly reduce
the role and significance of individual states.
Critics have also stressed that the Founders
twice rejected
the concept of the direct election
of the President in 1787. The
National Popular Vote Act would also lead to the anomalous situation
of a state's popular vote being for one candidate
and the state's electoral votes having to go to another candidate
because the other candidate received
more popular votes nationwide.
Senate Bill No. 1282 was introduced by Senator Pileggi
of Delaware County. He is the majority leader in the state Senate and one of the cosponsors of the bill is Senator
Scamati of Jefferson
County who is the president
pro tempore in the Senate. Governor Corbett has said that he supports the bill.
In light of their sponsorship and support, Senate Bill No. 1282 received
considerable publicity in the summer and fall of2011 and was the subject of a Senate State Government hearing in October
2011.
The bill allocates
Pennsylvania's electoral votes according to Congressional districts. The winner of the popular vote in each Congressional district
would receive an electoral vote and the winner of the statewide
popular vote would receive two electoral votes. Such a system would more closely represent the popular will of the people of Pennsylvania. Instead of "a winner take all" system, this proposal
would probably ensure
that the losing Presidential candidate
received some electoral votes.
During the hearings
on Senate Bill No. 1282 several criticisms
were expressed. This change in Pennsylvania law could result in one candidate winning
a majority of the popular
vote and yet not gaining a
majority of the electoral votes. It also could greatly reduce voter turnout
particularly in Congressional districts which were for political
reasons gerrymandered to overwhelmingly favor
one political party.
Two rather practical considerations also became
apparent. Passage of this bill could greatly reduce Pennsylvania's status as a "swing state." Such states historically receive substantial attention from the Presidential candidates in terms of campaign appearances and interest in Pennsylvania
issues. Also, passage of this bill would greatly
reduce the amount
of money which would be spent in Pennsylvania by the candidates and the national
media.
In light of the above criticisms of the two Senate bills and in light of political and editorial misgivings concerning the bills, Pennsylvania will very likely
retain its "winner take all" system
in 2012.
CONCLUSION
The Electoral College remains, as Alexander Hamilton
eloquently described it in the Federalist Papers, "an excellent but not perfect
system" for selecting the President of the United States.
An imperfection
became obvious in 1800 and was quickly
corrected with the l2th Amendment in
1804. The imperfections were evident in 1824, 1876, 1888 and 2000 (and in 2016) when
candidates who received a majority or a plurality of the popular
vote were not chosen to be President. Those obvious imperfections should not obscure the fact that in the 51 Presidential elections in the 19th,
20th, and 21th centuries, the Electoral College performed its function well 47 times.
Imperfections, however, are exactly that - imperfections; no one should
be surprised in 2012 if charges of corruption, fraud, illegitimacy, thievery and deceit
are made if the candidate
who receives a majority or a plurality
of the popular vote does not receive a majority in the Electoral College.
In the wake of the 2000 election
and in light of the current highly-charged political atmosphere
such accusations
will be expected and plentiful. Also abundant
will be demands that changes
be made in the Electoral College.
Current efforts, however, to change Pennsylvania's method of selecting its Presidential electors will likely fail and Pennsylvania will likely retain its "winner take all" system as its Presidential electors gather
in Harrisburg on December 17, 2012. - Daniel R. Schuckers, Esq.
Comments?
