The Existing Presidential Selection System Would Have Appalled the Framers

And they would have wanted states to adopt a majoritarian system.

By Reed E. Hundt

James Madison, fourth president of the U.S. and author of Federalist №10

Not much record of the debate of the Framers about the method of choosing the President exists. However, historians have ample circumstantial evidence from the Constitutional Convention of 1787 and the decades of thought and writing that set the stage for the creation of the world’s largest and most ambitious republic. This body of material gives solid ground for conjecture about the thinking of the Framers about the current Presidential selection system. It permits us to say with confidence that they would reach two conclusions: first, the current system does not work in accordance with their own fervent embrace of the popular vote and their strong support for majority rule. Second, they would be glad they had designed the Constitution to permit states to fix that selection system.

James Madison and the other Framers would be shocked to discover that demographic changes and party politics have now twisted their system for choosing the President into a mechanism that invariably causes a minority–a small minority–of states and citizens to choose the President.[1] They would be dismayed to find out that candidates for President do not seek the support of a majority of citizens or states. They would be appalled to learn that candidates simply assume that at least two-thirds of the states are ignored because the outcome is assumed in these states. They would be stunned to learn that 60% of votes cast have no weight in the final decision. And they would be very troubled to know that fairly often the runner-up in a national vote was named President by the workings of a system that the Framers intended to convey the consent of all the governed people in support of the single most important national executive office.

Madison believed strongly that a majority composed of different segments of the population was the most reliable basis for a republican government. He thought that a particular merit of the Constitution was that those who sought political authority would have to negotiate the creation of a shifting majority, so that all groups constantly sought to compose that majority.[2] In their conception of governance, direct popular voting filled some offices, in which case a plurality would suffice. Examples of this included voting for members of the House of Representatives.

Voting by elected officers would fill other offices. In these cases, the consent of the elected was indirectly obtained. To be sure that the will of the governed — that is, the people — was likely to be followed by their representatives, typically a majority would be required to fill a position. The most important example is the choice of President and Vice President by electors in the Electoral College. Another example: At the inception of the Republic, state legislatures chose senators. But the popular vote selected these Senators. The popular vote was not irrelevant. It underlay the choice of Senators. Under both methods, a popular vote was the bedrock of the system.

Only members of the judiciary were not directly or indirectly elected. However, even in the case of this branch of government, Senate approval by majority vote was required. In other words, the popular vote directly and indirectly conveyed the consent of the governed. And when representatives of the people spoke for them, the Framers always required a majority vote. That meant that a majority of the people, through their representatives, were likely to be supporting the decision.

By contrast, the Framers rejected a governance system like the House of Lords in England, where positions existed by dint of inheritance and lineage. Nor did they grant extra weight to the ballots cast by voters. They required a majority for critical decisions such as passing legislation, or a super-majority for approving treaties or overturning a Presidential veto.

In their vision, the bedrock of the Republic was composed of elections in which each eligible person’s vote was equal to all others. These elections directly chose local, colony-wide, and then many statewide officials. Indeed, in the first Congress (1789–91) popular vote on a statewide basis — as opposed to today’s district system — chose House members in six of the 13 states: Connecticut, Delaware, Pennsylvania, Rhode Island, New Hampshire and New Jersey.[3]

However, the logistical challenge of using the popular vote to select the President (and Vice President) was insurmountable. No one could conduct a popular election involving nearly a million free white males over 16 spread over more than one thousand miles south to north — most of whom had only their feet to carry them from place to place, and no way to communicate save by messages carried by horse. Logistical difficulties caused the first federal election to last from December 16, 1788 to January 10, 1789. It took two months even to inform George Washington that he had won.[4]

Moreover, the Framers surmised that the different regions and states would support multiple candidates for the Presidency and Vice Presidency. With this supposition, they would have imagined that a popular vote could not produce a majority or even a clear plurality of support for the only two national elected offices. A run-off would have been even more logistically unimaginable than a single national popular vote. Therefore, they designed a system whereby representatives of the people would choose the President but would be required to compose a majority of votes to put people in these offices. They created three methods for selecting the President: choice by electors, choice by the House and then elevation of the Vice President chosen by the Senate. Each would always and only select the leading national office holder by majority vote. If a majority was not composed under the first method, the second went into effect. If it did not produce a majority, the third went into effect.[5]

These electors each would roughly represent a certain number of people. Using the 1790 census, the first, and the 1792 election as a framework for understanding the Framers’ perceptions, if a Presidential nominee carried all the electors in a state, at a bare minimum the four biggest states had to cast their electors for the same person to muster a majority. These were Virginia (21), Massachusetts (16), Pennsylvania (15) and New York (12), totaling 64 electoral votes out of a total of 132. These states had the following number of white males above age 16:

Virginia 111,000

Pennsylvania 111,000

Massachusetts 95,000

New York 84,000

Total: 501,000

National Total: 807,000.

A candidate commanding a majority of electors from only these four states would have obtained support from electors representing 62% of the population of white males above 16. Obviously, this would be a decisive majority of popular support.

Other combinations of states amounting to a majority in the electoral college would also have led to the conclusion that the electors supporting the winner represented a clear majority of popular votes. This was true notwithstanding the distortion in the correlation of electors to eligible voters that resulted from the three-fifth’s compromise by which slaves counted as 0.6 of a person in order to allocate Congressional representatives, and hence electors, to a state.

In short, the Framers designed a process that would ensure that a majority of voters had conferred consent to the choice of President. The people’s will would have been done, through their representatives.

What they did not design is what their structure has become: a method by which the loser of the popular vote can become the President.

For the Framers, the need to obtain the consent of the governed by a democratic process was critical to the legitimacy of government. This principle had been convincingly articulated by John Locke in the previous century.[6] It was embodied in the Declaration of Independence (emphasis added):

We hold these truths to be self-evident, that, that they are endowed by their Creator with certain unalienable Rights, …To secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

The rise of political parties revealed a flaw in the Framers’ design. By 1800, two political parties had formed, the Democratic-Republicans and the Federalists, nominated Presidential and Vice-Presidential candidates: Thomas Jefferson and Aaron Burr versus John Adams and Charles Pinckney. The Jefferson-Burr ticket handily won the popular vote, 61% to 39%, and send many more electors to the Electoral College, as the framers intended.

However, the Framers gave each elector two votes, and declared the runner-up to be Vice President. Because the Democratic-Republican electors voted for both Jefferson and Burr, the two tied. The decision then reverted to the House.

In this secondary system, the Framers again showed a desire to reflect the will of the people and to insist on a majoritarian method of choosing the President. Popular vote chose the members of the House, as opposed to Senators, who were then selected by state legislators. And the preference for majority rule was shown in three aspects of the House’s process. (1) Only the tied candidates could be chosen. (2) Each of the 16 states cast a single ballot but a state could not vote at all unless a majority of its delegation chose one of the candidates. (3) A majority of the state ballots — 9 of the 16 states — would select the President. Under these rules, it was certain that a majority of states would easily total a majority of white males over 16.

The 1800 tie led to a famous confrontation between Alexander Hamilton and Aaron Burr, as Hamilton’s intervention in the House produced the obviously just result of electing his political enemy Thomas Jefferson. Before the 1804 election, the 12th Amendment fixed the flaw by requiring that electors cast separate ballots for President and Vice President.

Under the Framer’s multiple methods of choosing the President, the insistence on a majority meant that it was highly likely that at least a plurality of popular votes would have been cast for the person chosen as President. Indeed, that was the case in all but three elections until the 21st century. In each of these — 1824, 1874, and 1888 — skullduggery and backroom bargains denied the will of the people.[7]

Nevertheless, the possibility of a clash between the popular vote winner and the electoral college winner appeared increasingly unlikely as the entire 20th century passed without producing this anomaly. Even the closest popular vote victory by percentage in history — John Kennedy’s 0.17% defeat of Richard Nixon in 1960 — did not produce a clash.[8]

In this current century, however, two of five elections have led to a clash, and a third, the 2004 election almost did so. Had 58,000 votes in Ohio out of 5.5 million cast gone for Kerry instead of Bush, the incumbent President would have lost the electoral college vote even though he won the national popular vote by 3 million or 2.4%.[9]

Going forward, in any election where the popular vote winner has less than a 3% margin, there is a one in three probability that the electoral college will choose the popular vote loser as President.[10] A system with that high a probability of frustrating the will of the people and putting the minority’s candidate in the White House is contrary to the intent of the Framers.

Fortunately, the Framers clearly gave the states the power to fix this new vulnerability in the selection system. As to the three-fold mechanism for selecting the President, the Framers required that only a constitutional amendment can change any part of that system. But as to the method by which states can choose electors, the Framers gave that authority to the states.[11] See McPherson v. Blacker, 146 U.S. 1 (1892).

Consistent with the intent of the framers, most states adopted the popular vote as the mechanism for choosing electors by the election of 1824, and by the election of 1836 all but South Carolina had adopted the popular vote as the method.[12] In all states the prevailing belief and nearly uniform practice is that the electors will cast their votes in accordance with the votes of the people who chose them. In no election has any elector voted contrary to the will of the majority or plurality that chose such elector when the elector’s vote had any effect on who became President.

Moreover, states plainly can design multiple ways of aligning the people’s will with the choice of electors. In two states, Nebraska and Maine, the people choose some electors within Congressional districts, as opposed to choosing all by statewide ballot. States also can choose to allocate electors in proportion to the votes cast in the state. The guiding principle is that a state can choose a number of ways by which its electors can give fair weight to the votes of its citizens.

There is one principle — and only one — that gives equal weight to all votes cast in the country: a state can decide that all votes in its state and every other state should have equal weight in determining who becomes President. To achieve this complete equality of voting power for all voters, a state must adopt the National Popular Vote Interstate Compact. By its terms a state chooses the electors of the same party whose nominee won the national popular vote, but the law does not go into effect until passed by enough states to assure this result — in other words, until states with 270 electoral votes have passed the Compact.

By passing the NPVIC states can extend their own state-wide commitment to one person-one vote into a commitment that all voters in the country can enjoy that right when choosing the President. In states where the current system gives reduced voting power to citizens, the NPVIC erases a disadvantage. In states where the current system gives a greater than average voting power to citizens, the NPVIC favors equality among all American voters. If in force, the NPVIC gives equal voting power to the citizens of states that did not pass the Compact as to citizens of states that did.

The Compact supports the Framers’ commitment to obtaining the consent of the governed to the exercise of executive authority. Nothing can accomplish that consent more than direct democracy. It also eliminates the possibility that the runner-up in a national vote count can become President, and thus supports the Framers’ pursuit of a majoritarian system. It does not guarantee a majority, because a plurality would suffice, but it eliminates the possibility that less than a plurality of votes can produce a winner. In order to re-align the current Presidential selection system with the intent of the Framers, a group of us created Making Every Vote Count, a non-profit officially known as MEVCFoundation that is dedicated to education on this topic. Please see our site and sign up as a supporter.

[1] “Modern presidential campaigns ignore almost all states… in favor of a handful that are closely divided between Republicans and Democrats”

https://www.nytimes.com/2017/11/07/opinion/elections-electoral-college-voting.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region

[2] As “you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.”

http://avalon.law.yale.edu/18th_century/fed10.asp

[3] https://en.wikipedia.org/wiki/United_States_House_of_Representatives_elections,_1788_and_1789

https://elections.lib.tufts.edu/ (can be confirmed here, for a more credible source than Wikipedia)

[4] “Following the ratification of the Constitution by the necessary nine states in July of 1788, Congress set January 7 of the following year as the date by which states were required to choose electors. Those chosen would cast their votes a month later, on February 4. Washington was loath to leave the comforts of Mount Vernon, but his fellow Founding Fathers viewed his acceptance of the presidency as a foregone conclusion. On Feb. 4, 1789, electors convened in 10 states to cast their ballots. North Carolina, Rhode Island, and New York abstained from the process; the former two states had not ratified the Constitution, and the latter was in the midst of an internecine legislative conflict… On April 16, after receiving congressional notification of the honor, Washington set out from Mount Vernon, reaching New York City in time to be inaugurated on April 30.”

https://www.britannica.com/event/United-States-presidential-election-of-1789

[5] US Constitution. Article II, Section 1, Clause 3; 12th Amendment

http://constitutionus.com/

[6] See generally, The Second Treatise of Civil Government

https://faculty.history.wisc.edu/sommerville/367/locke%20decindep.htm

[7] 1824 was the “corrupt bargain” that denied Andrew Jackson, the people’s clear choice; 1876 was the Republican abandonment of Reconstruction in return for the Presidency; 1888 was Tammany Hall’s revenge against reforming New York governor Grover Cleveland. Each stained the Presidency and produced one-term Presidencies.

[8] https://www.270towin.com/1960_Election/

[9] “Had John F. Kerry won 60,000 more votes in Ohio, he could have won the White House, even though President Bush won 3 million more votes than his Democratic challenger.”

http://www.latimes.com/nation/la-na-pol-electoral-college-20161110-story.html

[10] https://www.cnn.com/videos/tv/2017/10/07/electoral-college-leads-to-land-of-the-ignored.cnn

[11] Article II. Section 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows 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.

Also see McPherson v. Blacker, 146 U.S. 1 (1892)

[12] http://www.fairvote.org/how-the-electoral-college-became-winner-take-all

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