November 30, 2021

When the Electoral College Was Almost Eliminated

Many conservatives are concerned about the growing movement in Congress and in state legislatures to either completely eliminate or effectively eliminate the Electoral College. That movement has shown itself in different ways, either through proposed constitutional amendments at the federal level or through the adoption of the National Popular Vote Interstate Compact.

Article V of the Constitution provide the two processes to amend the Constitution. The one that has been used successfully 27 times, the most recent of which was in 1992, is through a proposed constitutional amendment introduced in Congress that receives two-thirds vote in the House and Senate and the ratification of three-fourths of the states. The other, which has never been used, is the “convention” proposed by two-thirds of the states. Three-fourths of the states must ratify proposed amendments at the convention.

The Electoral College came about as a compromise during the Constitutional Convention of 1787 in Philadelphia. That compromise came, in part, because of the unfortunate and sad circumstances of slavery. Earlier in the convention, delegates agreed to the Three-Fifths Compromise, under which slaves were treated as three-fifths of a person. Southern states wanted slaves counted when determining a state’s population. This would’ve had the effect of increasing their national political power. Obviously, Northern states objected. That compromise was repealed with the ratification of the Fourteenth Amendment in July 1868.

Although some delegates did support the direct election of the president, others were concerned about direct democracy. This is the central of James Madison in Federalist No. 10. Madison described the concern as “faction.” He wrote, “By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Madison discussed how to address the problem of faction, positing on the idea of “controlling its effects” through the republican principles of government. However, Madison, like many of the delegates in 1787, opposed direct democracy. He wrote, “[I]t is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”

Alexander Hamilton, another delegate to the Constitutional Convention of 1787, wrote more in detail about the benefits of the Electoral College in Federalist No. 68.

“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,” Hamilton explained. “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.”

“It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief. The choice of SEVERAL, to form an intermediate body of electors, will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of ONE who was himself to be the final object of the public wishes. And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place,” Hamilton added.

There have been five occasions in which the winner of the Electoral College lost the national popular vote, the most recent being Donald Trump in the 2016 president election. Before Trump, George W. Bush, in the 2000 presidential election, won the Electoral College without winning the national popular vote. The House has chosen the winner of two presidential elections, the most recent being the 1824 presidential election.

Now, the Electoral College as designed doesn’t reflect the Electoral College in function today. This isn’t because of flaws in the design of the Electoral College. Rather, it’s other reasons. One reason is that 33 states require electors to vote for the presidential and vice presidential candidates for whom he or she is an elector. The Supreme Court recently upheld the constitutionality of faithless electoral laws in Chiafalo v. Washington (2020). Other reasons include growing hyperpartisanship and generational and cultural divides that have led to the sort of factional populism that the Framers wanted to avoid.

The closest the Electoral College has come to being eliminated came during the 91st Congress. In the 1968 presidential election, former Alabama governor George Wallace ran for president and received 46 electoral votes. Wallace was a segregationist whose disgusting platform had an appeal in the Deep South. Had Although Richard Nixon received 301 electoral votes and won the presidency, a “what-if” scenario of the election being thrown to the House was a key part of the debate in Congress.

Rep. Emanuel Celler (D-NY) and Sen. Birch Bayh (D-IN) proposed a constitutional amendment, H.J.Res. 681 and S.J.Res. 1. H.J.Res. 681 passed the House easily, by a vote of 338 to 70, with very strong bipartisan support. Those voting against the proposed constitutional amendment were predominately Southern Democrats and Republicans. Notable votes for H.J.Res. 681 include Rep. Gerald Ford (R-MI), who would later be confirmed as vice president after the resignation of Spiro Agnew and president after the resignation of Richard Nixon, and Rep. George H.W. Bush (R-TX), who would later become president.

The “what-if” of Wallace throwing the presidential election into the House was very much a factor during the debate on H.J.Res. 681. “If Mr. Nixon had lost Illinois and Missouri, both of which he won by small margins, he would have failed to obtain the necessary 270 electoral votes,” Rep. Clark MacGregor (R-MN). “If George Wallace had carried the States of North Carolina, South Carolina, and Florida, the election would have gone to the House of Representatives.”

The ease at which H.J.Res. 681 passed in the House wasn’t reflected in the Senate when it considered S.J.Res. 1. Senate Majority Leader Michael Mansfield (D-MT) twice filed cloture motions on S.J.Res. 1. Despite Nixon’s support, the cloture motion failed both times, 54 to 36 on September 15, 1970, and 53 to 34 on September 29, 1970. (At the time, two-thirds were required for cloture, or 67 votes with 100 senators present.) Opponents of S.J.Res. 1, including Sen. Strom Thurmond (R-SC), argued that allowing the direct election of the president through the popular vote would destroy federalism.

Recent proposed constitutional amendments have failed to gain traction. At the beginning of the 117th Congress, Rep. Steve Cohen (D-TN) introduced a constitutional amendment, H.J.Res. 14, to abolish the Electoral College and replace it with the direct election of the president and vice president through the popular vote. This isn’t the first time that Cohen has introduced this constitutional amendment, and other members have introduced similar constitutional amendments over the years. (The table below identifies proposed constitutional amendments to change or eliminate the Electoral College since the 106th Congress. There are dozens of others dating back further.)

Proposed Constitutional Amendments to Eliminate or Change the Electoral College Since the 106th Congress

CongressMemberBill NumberDate
106thRep. Ray LaHood (R-IL)H.J.Res. 23February 4, 1999
106thRep. James Leach (R-IA)H.J.Res. 113October 12, 2000
106thSen. Dick Durbin (D-IL)S.J.Res. 56November 1, 2000
106thRep. Eliot Engel (D-NY)H.J.Res. 130December 7, 2000
106thRep. Eliot Engel (D-NY)H.J.Res. 131December 7, 2000
106thRep. Gene Green (D-TX)H.J.Res. 132December 8, 2000
107thRep. James Clyburn (D-SC)H.J.Res. 1January 3, 2001
107thRep. Gene Green (D-TX)H.J.Res. 3January 3, 2001
107thRep. William Delahunt (D-MA)H.J.Res. 5January 30, 2001
107thRep. Eliot Engel (D-NY)H.J.Res. 17February 13, 2001
107thRep. James Leach (R-IA)H.J.Res. 25March 1, 2001
107thRep. Bob Clement (D-TN)H.J.Res. 37March 13, 2001
108thRep. Gene Green (D-TX)H.J.Res. 103September 14, 2004
108thRep. Jesse Jackson, Jr. (D-IL)H.J.Res. 109October 8, 2004
108thRep. Zoe Lofgren (D-CA)H.J.Res. 112November 18, 2004
109thRep. Eliot Engel (D-NY)H.J.Res. 17February 9, 2005
109thRep. Gene Green (D-TX)H.J.Res. 8January 4, 2005
109thRep. Jesse Jackson, Jr. (D-IL)H.J.Res. 36March 2, 2005
109thSen. Dianne Feinstein (D-CAS.J.Res. 11March 16, 2005
110thRep. Gene Green (D-TX)H.J.Res. 4January 4, 2007
110thRep. Jesse Jackson, Jr. (D-IL)H.J.Res. 36February 13, 2007
110thSen. Bill Nelson (D-FL)S.J.Res. 39June 6, 2008
111thRep. Gene Green (D-TX)H.J.Res. 9January 7, 2009
111thSen. Bill Nelson (D-FL)S.J.Res. 4January 8, 2009
111thRep. Jesse Jackson, Jr. (D-IL)H.J.Res. 36March 3, 2009
112thRep. Jesse Jackson, Jr. (D-IL)H.J.Res. 36February 14, 2011
114thSen. Barbara Boxer (D-CA)S.J.Res. 41November 15, 2016
114thRep. Charlie Rangel (D-NY)H.J.Res. 103November 17, 2016
114thRep. Gene Green (D-TX)H.J.Res. 102November 17, 2016
114thRep. Steve Cohen (D-TN)H.J.Res. 104December 1, 2016
115thRep. Steve Cohen (D-TN)H.J.Res. 19January 5, 2017
115thRep. Gene Green (D-TX)H.J.Res. 65February 7, 2017
116thRep. Steve Cohen (D-TN)H.J.Res. 7January 3, 2019
116thSen. Jeff Merkley (D-OR)S.J.Res. 16March 28, 2019
116thSen. Brian Schatz (D-HI)S.J.Res. 17April 2, 2019
117thRep. Steve Cohen (D-TN)H.J.Res. 14January 11, 2021
Source: Congress.gov

Some states are trying to circumvent the traditional Article V processes via the National Popular Vote Interstate Compact. States that join the compact commit to sending the slate of the electors for the presidential and vice presidential candidates who won the national popular vote, regardless of who won the state. The compact takes effect in the presidential election after states representing 270 electoral votes have joined. In other words, if states representing a majority of the Electoral College join the National Popular Vote Interstate Compact before the 2024 presidential election, those states will be theoretically bound to send the electors for the winner of the national popular vote.

Progress of the National Popular Vote Interstate Compact

StateElectoral VotesJoined
Maryland10April 10, 2007
New Jersey14January 13, 2008
Illinois20April 7, 2008
Hawaii4May 1, 2008
Washington12April 28, 2009
Massachusetts11August 4, 2010
District of Columbia3December 7, 2010
Vermont3April 22, 2011
California55August 8, 2011
Rhode Island4July 12, 2013
New York29April 15, 2014
Connecticut7May 24, 2018
Delaware3March 28, 2019
New Mexico5April 3, 2019
Oregon7June 12, 2019
Colorado9November 3, 2020
Total Electoral Votes 19672.6 Percent of 270 Electoral Votes

The National Popular Vote Interstate Compact faces challenges. First, Congress has explicit control over interstate compacts. Article I, Section 10 of the Constitution states: “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State, or with a foreign Power.” Congress hasn’t approved the National Popular Vote Interstate Compact. There are other constitutional challenges as well.

The argument that the states with the largest populations, essentially the largest cities and counties, will effectively choose the president if the Electoral College is eliminated is a good one. There are other legitimate reasons for keeping the Electoral College. However, the perception that Republicans’ opposition to eliminating the Electoral College appears to be largely grounded in the belief that it’s the only way they can compete for the presidency is a problem.

Winning the Electoral College while losing the popular vote hardly gives a president a mandate and incentivizes campaign platforms that leave serious policy issues unaddressed or dismissed. While this author believes very much in the Electoral College as the best way to determine the victor, winning the hearts and minds of a majority of voters, giving them a presidential candidate who they can truly get behind, is the best strategy for future presidential campaigns.

Jason

Policy wonk. Nonserious musician. Playstation ID: JaseLP22

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