Robbins: What were the Founding Fathers thinking with the Electoral College?
This is the second installment in a three-part series.
In the first two parts of this series, we visited the foundations of our nation’s Electoral College — from precisely what primordial political muck it first arose — and how the cogs and wheels and driveshaft of the system mesh together to make if work. In this column, then — the last of this short series — we will explore why? What were the Founding Fathers thinking when they breathed life into this unruly golem of a system?
In electing a president, the problems that the Founding Fathers were attempting to address were these:
- The 13 states were composed of both large and small states, each jealous of their own rights and powers and suspicious of any central national government.
- The nation then contained only four million souls spread up and down the Atlantic seaboard and only tenuously connected. National campaigns were, accordingly, impractical if not impossible.
- The common intellectual currency of the time dictated that political parties (perhaps not wrong in retrospect) were at best mischievous if not downright evil.
- In that more genteel time, it was considered gauche for “gentlemen” to campaign for office (a common refrain of the day was that “the office should seek the man, the man should not seek the office”).
The Constitutional Convention considered several possibilities in order to address these concerns. These ranged from having Congress select the president to having the state legislatures select the president, to selecting the president by direct popular vote which was rejected in large measure because the framers feared that, not having sufficient information about candidates from outside their state, people would naturally vote for “favorite sons.” Accordingly, the larger states would tend to dominate the smaller. Obviously, in our Internet/media age, this concern seems to have gone the way of Dodos and steam frigates.
Finally, indirect election of the president through a College of Electors was proposed. The historical precedents for the College of Electors can be found both in the Roman Catholic Church’s College of Cardinals, wherein the popes are selected, and the Centurial Assembly system found in the ancient Roman Republic, whereby men of property were divided according to their wealth into groups of 100, or “Centuries,” and each Century collectively cast a single vote. In the Electoral College system, the States serve as the Centurial groups (though they are not, as in Rome, based on wealth).
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Incorporated into the Constitution (Article II, Section 1), the Electoral College provided the following advantages:
- The manner of choosing the electors was left to the individual states (thereby assuaging fears of a central national government).
- Members of Congress and federal governmental employees were barred from serving as electors (thereby striving to maintain a balance between the executive and legislative branches).
- Each state’s electors were required to meet in their respective states rather than all together in an attempt to prevent bribery, corruption, secret dealing, and foreign influence.
Other similar safeguards were effected. With the rise of political parties by the 1800 elections (due, in large part to the writings of James Madison and Edmund Burke), the original design of the Electoral College was “tweaked” to accommodate “modern” requirements. Preeminent among these changes was the adoption in 1804 of the 12th Amendment which provided that the electors each cast separate votes for the president and vice president (heretofore, each elector cast two votes; the highest vote-getter becoming president and the second highest becoming vice president). In 1800, however, Thomas Jefferson and Aaron Burr received an equal number of votes and the tie was broken only after 36 ballots and much political dealing in the House.
The other “repair” to the electoral system fostered by the 12th Amendment was that if no candidate received an absolute majority of electoral votes, the House would decide among the top three contenders.
The other features of the original Electoral College remained unchanged. These included the requirement that, in order to prevent electors from voting for “favorite sons,” either the presidential or vice presidential candidate must be from a state other than that of the electors. Considering the recent whispers that Trump may pick Sen. Marco Rubio as his running mate (both Florida residents), it would present the interesting situation where, if Trump-Rubio were to carry Florida, they would have to forfeit Florida’s 30 electors.
Over the years, there have been several curiosities that have arisen at least in part as a function of the Electoral College system. In addition to the Jefferson-Burr impasse of 1800, these include the 1824 election where John Quincy Adams became president despite the fact that Andrew Jackson obtained a greater proportion of the popular vote (and initially, at least, a greater number of electoral votes).
However, as four strong candidates split the vote, Jackson did not obtain the necessary absolute majority of electoral votes and, ultimately, the House selected Adams over Jackson. The 1836 and 1872 elections caused blips of their own and the 1876 election between Samuel J. Tilden and Rutherford B. Hayes is still pejoratively referred to as “the fraud of the century.” The victor, Hayes, was known throughout his term by the disparaging moniker, Rutherfraud B. Hayes. Hayes was elected president despite the fact that Tilden garnered 3% more of the popular vote (interestingly, the dispute boiled down to an electoral controversy in Florida, much as did the year 2000 Bush-Gore imbroglio). Similarly, the election of Benjamin Harrison in 1888 was one wherein the Electoral College vote went contrary to the popular vote.
The dispute over the Electoral College continues to rage. Those who decry that it has outlived its usefulness often cite the possibility of electing a minority president, the risk of so-called “faithless” electors (as arose in the 2020 election), the possibility that the role of the Electoral College depresses voter turnout, and its failure to faithfully reflect the national will.
Proponents, on the other hand, defend the Electoral College system, among other reasons, upon the grounds that it contributes to the cohesiveness of the country by mandating a broad distribution of popular support to be elected president, enhances the status of minority interests, contributes to the political stability of the nation by encouraging a two-party system, and maintains a federal system of government and representation.
Indisputably, the relevance of the Electoral College in the 21st Century will itself continue to be disputed. Particularly in this hypercharged year, whatever your proclivities, beliefs, and loyalties, get out on Nov. 5 and vote.
Apathy is never the correct solution.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926-4461 or at his email address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at fine booksellers. And coming soon, “He Said They Came From Mars.”
