By KEITH E. WHITTINGTON
Review of Why Do We Still Have the Electoral College?, by Alexander Keyssar
Cambridge, MA: Harvard University Press, 2020
The Electoral College is among the Founders’ least loved innovations. We have spent the last several years particularly aware of and dissatisfied with the Electoral College. Our current discontent probably begins with the disputed presidential election of 2000. In a remarkably close finish in both the national popular vote and the Electoral College and a virtual tie in Florida, the Bush-Gore contest led to an extended and increasingly bitter fight over how to conduct recounts and who would determine the process, and even the last-minute threat of a slate of electors appointed by the legislature and unprecedented intervention by the U.S. Supreme Court in the process. The result was a president elected with the slimmest of majorities among the presidential electors and a second-place showing in the national popular vote and a new mass awareness of the gory details of the mechanics of the American electoral process.
Subsequent presidential elections were not quite so messy, at least until 2016. Bush won reelection with a comfortable electoral majority and a slim popular majority. Obama coasted to an easy victory in 2008, with an Electoral College landslide obscuring a slim popular majority reelection win in 2012 (feeding concerns that the Democratic nominee might lose the popular vote in 2016 while scoring an electoral victory). Of course, Trump fell well short of a popular majority in 2016, though he racked up a solid victory in the Electoral College. From a popular vote perspective, Trump had the worst showing of any successful candidate since Bill Clinton in 1992, who received a mere 43 percent of votes cast.
The combination of the 2000 and 2016 elections has emphasized a basic feature of our presidential election system: the national popular vote does not matter. The disappointed Democrats have made this into a rallying cry, raising the popular vote to a status that it never had before. That the popular vote total is purely an accidental artifact of presidential campaigns designed to compete in over fifty separate elections with an aim of collecting a majority of the electoral votes has little popular resonance.
Partisans likewise prefer to emphasize the share of the two-party vote received by their candidate and ignore the actual popular vote total. It is, of course, guaranteed that someone can claim a popular vote majority if we simply divide by two. If we actually take notice of the millions of votes cast for candidates who were not nominated by the two major parties, then a popular vote majority is often much more elusive. Such minor party candidates are rarely able to make much difference in the electoral vote, but collectively they have sometimes denied anyone a popular vote majority. In all, four elections over the past half century were won by a candidate who could not assemble a majority of the votes cast (though only two were won by candidates who did not take a plurality of those votes).
That our federal elections are in fact mostly state elections is not strictly a feature of the Electoral College, but it reflects the same compromises in the Philadelphia Convention that gave us the Electoral College. Creating a new national government was already a bold move. Creating a national government that would run its own elections seemed like a bridge too far. The wide variety of electoral systems and voting rules in place across the country in 1787 hardly created fertile ground for establishing an agreeable set of national rules. The constitutional framers punted, and we have lived with a patchwork of electoral systems ever since. The current election year has made an ugly spectacle of that patchwork, with the effects of the pandemic adding to the aggressive partisan gamesmanship.
Everyone knows the basic outlines of the fact that the Electoral College was a cobbled-together compromise in Philadelphia, has never worked as it was originally imagined, and has been a frequent source of controversy ever since. Populists and conservatives alike have too often played up the mostly fanciful notion that the presidential electors were to serve as a set of aristocratic guardians against the forces of mass democracy. Such stories seem more credible to us because we find it harder to imagine the concerns that did weigh on the framers in Philadelphia. From their perspective, it was difficult to see how the people across a vast nation could be aware of and settle on a qualified presidential candidate after the obvious choice of George Washington had left the scene. It turns out that political parties filled the gap, winnowing down the options and promoting the names of favored candidates into the great hinterland. Party conventions did the work that the framers imagined that presidential electors might have to do, and parties and the Electoral College have lived together in some tension for over two centuries.
Alexander Keyssar’s monumental study of the Electoral College fills in the blind-spot we did not know we had. The Matthew W. Stirling, Jr. Professor of History and Social Policy at the Harvard Kennedy School, Keyssar is already the author of a celebrated history of the American electoral system, his 2000 book The Right to Vote. His new book might not be as fundamental in its subject matter, but it is similarly comprehensive and careful in its design. It will not be the last word on the Electoral College, but it is hard to imagine another work significantly improving on this study of the recurrent controversies over the design of the Electoral College.
The surprisingly simple question of Keyssar’s title—why do we still have the Electoral College?—leads him to uncover a complicated history that serves as something of an answer. It is easy to imagine that our predecessors have shared our particular discontents and dispositions, and thus we wonder why no one has already made the changes we would like to make. The original design of the presidential election system was intended to preserve key compromises over representation that had already been hashed out in the Convention, and that meant giving weight to small states and slave states.
Those compromises played out somewhat differently in the Electoral College than they did in Congress. The small state bonus in the Senate is mirrored in the presidential election formula simply enough. In the context of the House of Representatives, counting enslaved persons along with the rest of the population would have increased the number of seats in the slave states. In the context of a national presidential election, only actual votes cast would matter, and the slave states would be in a much weaker position. The three-fifths compromise might have hurt Southern interests in Congress but it worked to their advantage in the presidential race. We might then think that the small states have gummed up the works of reform in order to retain their advantage all this time, but Keyssar significantly complicates those expectations.
Ultimately, Keyssar notes that the Electoral College has persisted for so long despite persistent controversy because Article V creates a high bar for constitutional amendments and the incumbent electoral system always generates political interests that resist change that might disadvantage them in future elections. Electoral systems are just hard to change in a democratic system even when the existing system is widely regarded as unsatisfactory.
After a brief overview of the creation of the presidential election system and its early modification with the Twelfth Amendment as a result of the rise of political parties, Keyssar dedicates the bulk of his book to the much less familiar history off what came after. This primarily means giving serious attention to the hundreds of constitutional amendments taking aim at the Electoral College that have been proposed since the adoption of the Twelfth Amendment in 1804.
It is not well known that thousands of constitutional amendments have been introduced in Congress over time. Most of these are hardly serious proposals with any prospect of near-term success, and many are repetitive in addressing similar concerns and reforms. As it turns out, the Electoral College is a very frequent target of amendments and quite often those proposal are taken seriously. It would be one thing if these hundreds of proposed amendment died the quiet death of most bills that are thrown into the hopper in Congress. There would be relatively little to say about them, and certainly not enough to occupy the hundreds of pages of Keyssar’s new book. But not all of these proposals have died quiet and lonely deaths in the legislative process. They have quite often risen to the point of generating serious discussion and debate and some real prospect of successful passage, and Keyssar provides us a fascinating exploration of this forgotten history of serious but failed reform efforts.
One notable feature of Keyssar’s study is its underscoring of the fact that the biggest hurdle created by Article V over time has not been the state ratification process that tripped up the Equal Rights Amendment in the 1970s or the Child Labor Amendment in the 1920s. It has rather been the requirement that each chamber of Congress approve an amendment by a two-thirds majority. When proposals to modify the Electoral College make their way through the congressional process, it has repeatedly been the case that those who think that the current design works in their favor or that the proposed reform would work to their electoral disadvantage can command more than a third of the votes in one or the other chamber of the federal legislature.
An interesting revelation of Keyssar’s work is the extent to which the pressures for reform and the entrenched interests for the status quo have changed across the centuries. There has been no single reform proposal that has been constantly stymied by a single interest, such as the combined weight of the small states. There have been a wide variety of proposed reforms that have reflected the particular contingent historical experiences of their day and that have often run afoul of a shifting set of immediate partisan calculations that can see how their ox would be gored by the proposed change.
The book becomes an extended tour through the often forgotten byways of the partisan and electoral jockeying of the past. It should not be surprising that our predecessors were at least as bitterly divided on political issues as we are—and often more ruthless in their pursuit of their both short and long-term objectives. We have heard a great deal about political norms in recent years, though it seems that we are settling into a period in which a substantial portion of activists and politicians at both ends of the political spectrum find norms more troublesome than desirable. I have often thought that, as we left the twentieth century behind, the better analogue to contemporary American politics was the politics of the nineteenth century when partisanship (and what we have recently come to call identity politics) was intense and institutional constraints were few.
Keyssar’s history provides bracing accounts of how far partisans were once willing to go to manipulate the features of the presidential election system to advance their cause. The guardrails were few, and the perceived abuses often generated demands for fundamental reform—reform that generally did not come. It is sometimes recalled that in the early days under the Electoral College, several state legislatures chose presidential electors directly rather than turn that decision over to the general electorate. What is less well appreciated is that legislatures sometimes chose to intervene precisely because they did not like what the electorate was doing.
In 1796, the Jeffersonians in the North Carolina legislature took control over the selection of the electors because they feared that the prior system of district-based voting would give the state to the Federalists. Later the Federalists in New Jersey cancelled the presidential election days before it was scheduled to take place believing that their party would lose. Such episodes led to calls to cut state legislatures out of the process and entrench a single system for choosing electors; but as we are reminded today there is still a specter that a partisan legislature might try to seize control of a state’s slate of presidential electors.
There might have been broad support for the idea that state legislatures were “the worst possible system of choosing Electors,” in part because they could be swept up by “the disorganizing spirit of party,” according to the Jeffersonian New Jersey Senator Mahlon Dickerson. But a rump of Federalists in the House of Representatives, who thought legislative selection would generally favor their party, and some representatives from large states, who thought their state would be benefit from the emerging “unit rule” of awarding all electors to a single candidate rather than the proposed district-method that might dilute the influence of the populous states, were enough to narrowly defeat an amendment that could have avoided a lot of subsequent bad feelings.
The details change but the song remains the same over the decades. Some particularly egregious abuses that disproportionately horrify and frustrate one side of the political aisle generate a serious reform movement that ultimately founders on the inability of reformers to overcome a core of committed opposition in Congress who are either happy with the status quo or wary of the details of the proposed change, or both. At some points, it is the winner-take-all system of awarding electors adopted by most of the states that becomes the target of reformers who would prefer a district or proportional system, only to have the push for reform come up short. At other points, it is the electoral formula of awarding votes in keeping with congressional representation that is under assault from those who would prefer a simple national popular vote, only to have reform movements stifled by those who see their political interests enhanced by the current system.
The coalitions both in favor of reform and in favor of the status quo are often composed of odd bedfellows who are thrown together by a temporary set of shared interests, and those coalitions often change over time, with everyone switching places as their perceived advantages shift. As often as not, it is the more democratic House that proves to be the roadblock to reform rather than the oddly apportioned Senate. Keyssar’s broad historical sweep allows him to appreciate these recurrent patterns while still providing the detail to show the particular political battles.
This is not a book about high-minded ideals or broad social movements. It is strikingly an intense exploration of the history of elite politics in Congress. His protagonists are often now-obscure figures who once roamed the halls of Congress and the heart of his analysis is generally the concrete interests of “low politics” and who will and will not gain some votes in the quest to win control of and influence over the White House. With such a big prize at stake, such small matters as ideals, principles, consistency, and respect for institutions can find themselves relegated to the back seat. Battles are ultimately decided by the casting of votes on the floor of Congress.
It is all too evident that electoral reform does not take place behind a Rawlsian veil of ignorance. Everyone knows, or at least has ideas about, whether they and their current political allies will benefit or not from any proposed reform, and we seem unable to escape the pull of those immediate calculations of political self-interest. Of course, the design of the Electoral College itself was not made behind a veil of ignorance. The constitutional framers had their own views about who would be favored by the system they were constructing. But they did have the benefit of writing on a blank slate. They settled on the Electoral College because they could not come up with anything better and it seemed to solve the problems that were most immediately on their minds. The alternative to coming to some agreement was to leave a failed constitutional system in place. Their posterity do not have the same luxury of writing on a blank slate, or perhaps do not suffer the same fate of needing to try to escape the intolerable. The status quo always beckons and always has its adherents, and so path dependence takes over even if no one is very happy about the path that we are on.
Posted on 2 November 2020
KEITH E. WHITTINGTON is the William Nelson Cromwell Professor of Politics at Princeton University. He is the author of Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present (University Press of Kansas, 2019).
