The Accidental Function of the Electoral College is Now Its Only Function
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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. Article II, Section One of the US Constitution
In a rare unanimous decision, the Supreme Court today ruled that states can require their presidential electors to vote for the winner of the statewide popular vote. Constitutionally, this is the correct decision. The Constitution allows states to choose electors “in such a Manner as the Legislature thereof may direct.” This means that states can choose electors through a popular vote, a legislative appointment, a lottery, or a Tiddlywinks tournament. As long as they don’t choose a sitting member of Congress, the Constitution is silent.
But today’s decision also does away with the last tiny bit of republicanism in the way that Americans choose their president. And it means that it is not even theoretically possible for the Electoral College to do what it was designed to do (interpose the judgment of wise electors between the people and the president). Its accidental function (creating 50 winner-take-all direct presidential elections every four years whose combined result elects the president) has become the only reason that it exists.
Though it no longer has a republican function, the Electoral College is a remnant of the republican origins of the Constitution. When a certain type of person says “the United States is a republic and not a democracy,” what they are really saying is “I took civics in middle school and haven’t thought about it since then.” But what they are vaguely remembering is that most of the Founders were suspicious of direct democracy because they didn’t actually like the masses. Their reading of the histories of Greece and Rome showed them that “the people” were fickle and irrational and could be swayed by candidates who stoked their fears and appealed to their vanity. To prevent this, they created a number of mechanisms that relied on indirect democracy to prevent unscrupulous demagogues from riding a popular tidal wave into power.
The Electoral College was a compromise measure between the handful of delegates at the Constitutional Convention who wanted to select the executive by direct vote, and the majority who wanted it to be selected by the House of Representatives, or by state legislatures, or by an assembly of state governors. Each of these mechanisms benefitted some states and disadvantaged others. If the House of Representatives selected the executive, then the interests of large states would predominate. If governors selected the executive, then smalls states would have just as much influence as large states. And so on.
The delegates eventually landed on the idea of electors who were not otherwise committed to a political agenda and would be apportioned according to both the proportional representation of the House and the equal representation of the Senate. Alexander Hamilton explained the thinking of the Convention in the 68th Federalist Essay:
It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.
This, Hamilton believed, was the perfect compromise between the democratic and the republican forms of government. The people would not actually vote for the president — the issues were too complicated and the people far too uninformed for that to work. But they would vote for a slate of representatives whose only task was to study the issues and the candidates and make the best possible decision on their behalf.
Remember that the Founders did not anticipate the emergence of political parties, or, as Madison called them, “permanent factions.” They believed that every presidential election would have dozens, if not hundreds of candidates who had not been sorted into parties and that it would be a full-time job just keeping up with who was running. And many at the convention also believed that nearly every presidential election would end up being thrown into the House of Representatives; the Electoral College would simply narrow the field down to a manageable number.
Arguably, the Electoral College worked like it was supposed to work in the first two elections in which George Washington ran unopposed. Since then, however, it has been a bust. It failed so spectacularly in the election of 1800 that the 12th Amendment had to be passed to account for the effect of political parties. Since then, the Electoral College has evolved into a statewide winner-take-all system that usually ends up reflecting the popular vote.
Before the 2000 election, very few people ever won the electoral college and lost the popular vote. This happened three times in the first 200 years: 1826, 1876, and 1888. When the entire 20th century passed without a single electoral-popular split, most people simply forgot about the electoral college and assumed that it didn’t make a difference. In the 21st century, however, two of the three presidents (George Bush and Donald Trump) came to power in an Electoral College victory that was different than the popular vote.
And this, ultimately, is why the Electoral College is not likely to be amended out of existence. Even though it no longer does what it was designed to do, its unintended consequence has created a calculus that clearly benefits one party and disadvantages the other. The Constitution is hard to amend. It requires a high level of agreement. And as long as approximately half of the congressional representatives and state legislators in the nation owe their allegiance to a party that benefits from the current system, they will not be likely to change it.
But today’s Supreme Court decision does leave open the possibility that people may be able to change the system themselves. Sort of. By affirming the fact that the Constitution does not place any limits on the way that states choose electors, the Court gave a green light to the National Popular Vote Interstate Compact. So far, 15 states and the District of Columbia — representing 196 electoral votes — have passed provisions to give their electoral votes to the winner of the national popular vote as long as states representing 271 electoral votes agree to do the same. These provisions can originate in state legislatures or in ballot propositions decided by direct vote.
It is much more likely that the Electoral College will be rendered inoperable by this compact than by a Constitutional Amendment. But it is still a long haul. All of the states that have approved this measure so far are reliably Democratic in presidential elections. States that trend Republican are unlikely to approve it. And even if the compact were to be approved and go into effect, the pressure for a state to abandon it if it ever overturned the popular vote would be immense. An electoral compact created by a loose collection of state ballot initiatives can be undone at any time by a single state changing its mind.
This means that, in all likelihood, Americans are stuck with an election system that is anti-democratic but not really republican, that no longer does what it was designed to do, and that amplifies some of the worst traits of direct democracy without incorporating any of the best. Today’s Supreme Court decision didn’t cause this — nor could any judicial action either restore the original intent of the Electoral College or nullify its unintended consequences. In the end, Americans, like everybody else, end up with the government they deserve, which might be the single most depressing thing I have ever known.