The Electoral College: An Issue of Federalism

On the LCKeagy Facebook Page recently, I asked those who had liked the page about what topics they would like me to address. One of the two responses was, “I’d be interested to read your views on the electoral college. Is it good for modern America? Would eradicating it really provide a better representation of voters?”

This seems particularly fitting, given the current season. While I am avoiding any commitment, at this point, to digging into the specific politics of the election, I hope to shed some light on what the Electoral College is and some clarity regarding its historical and present relevancy, and I hope to offer a bit of the Framers’ own discussions around the executive and what role it would have. This is what they didn’t teach you in high school.

So what is the Electoral College? Essentially, the Electoral College is the system whereby each state chooses their electors: a group of people who are ultimately responsible for electing the president. Each state is apportioned a number of electors equal to their total number of representatives in the U.S. Congress. For example, Arkansas has two senators and four House representatives, so Arkansas sends six electors to the Electoral College.

b-electoral-state-graphic-ggWith 538 electors attending the College, which meets and votes in December, a candidate must win 270 votes. If any candidate fails to win 270 votes, the Constitution mandates that the president will be picked by the House of Representatives.

Perhaps one of the key controversies of the Electoral College is that for all but two states (Nebraska and Maine), all electors from a state will vote one way. In other words, all six electors from Arkansas will vote for whoever wins the popular vote in Arkansas in a “winner-takes-all” system. The controversy on the state level is that, hypothetically, if 51% of voters vote for candidate X, all six Arkansas electors (or, all 55 from California) will go to the Electoral College pledged to vote for candidate X.

On the national level, this has proven particularly controversial because it allows for a candidate to win the national popular election, while losing the Electoral College election, which has happened a total of five times in U.S. history, the most recent being the Gore vs. Bush election of 2000. This possibility has merited many to call for an end to the College.

Before offering my own evaluation of the college in its modern context, I think it is particularly important to understand why it was created in the first place. This verges a bit into the broader discussion of the Constitutional Framers, which I will expound on more satisfactorily in the future.

First of all, it is important to look at the whole purpose of the office of the presidency.

There are a few key things to keep in mind about the creation of the presidency. First, Americans of the late 1700s had a deep and abiding skepticism and fear of a powerful executive who could exercise power similar to the King or Prime Minister of England. Second, there was no executive under the first United States government attempt in the Articles of Confederation, mostly for that very reason.

When the Framers met in Philadelphia in the summer of 1787 during what would quickly become the Constitutional Convention, they were faced with the task of addressing alleged problems of the Articles of Confederation, one of which was that there was no executive, and hence no enforcement branch of the Congress. Many offered suggestions such as the creation of an executive body—a small number of people who would carry out the executive function. Alexander Hamilton, in contrast, proposed a monarch-like figure, a proposal quickly dismissed by the vast majority of the delegates.

Most importantly, there was discussion about what sort of role this executive would play. Would they serve as a national symbol of greatness, as King George did in England? Would they take an understated roll of merely carrying out the tasks of Congress? What does the ‘executive function’ even mean? Many delegates, sharing their country-men’s fears of a powerful executive, were prone to keep an executive-free government, as under the Articles, but in the end, most agreed on a few key roles justifying the creation of an executive.

First, the executive would serve as a chief foreign diplomat, to work with the Senate in foreign affairs. Second, the president would serve as an arbiter over Congressional legislation; they gave him the veto power (after some arguments about it) in order to veto unconstitutional (not merely unpopular) legislation. Finally, they wanted the president to carry out any Congressional legislation, which at that time primarily related to ensuring that conflicts between states were resolved and tariffs collected. Nevertheless, the question of what the presidency would be was open-ended in some respects. Given the concern about a monarchical president and the Framer’s own fears of power, this is quite curious.

George Washington

George Washington

The reason is that it was evident to everyone that George Washington, the American Cincinnatus, as he was nicknamed, would fill that role, and Washington was perhaps more trusted than any other single individual in U.S. history, especially among the Framers. Still, during the ratification debates, state conventions worried about federal power prone to abuse, were assured that federal power would be limited to the exclusively what the Constitution delegated (more discussion on this later).

After resolving as best they could the question of the executive function and make-up, the Framers faced the issue of how the executive would be chosen. In England, the executive function was delicately split between a Prime Minister chosen by Parliament, and a hereditary monarch. Some entertained the idea of a president chosen by Congress, like the Prime Minister, but of course the idea of a hereditary executive wasn’t given the light of day. Still, there were enough people concerned about the potential way that power could be abused if Congress had full say over the executive. An alternative was to put it to a popular vote on a national level, a decision which they ultimately turned down for a variety of reasons. Discussions during the Convention reveal concerns about the opportunity for popular elections to lead to the election of popular executives who might use that popularity to absorb more and abuse that power. Washington issued the same concern directly in his farewell address.

Key to understanding this whole issue, however, is the issue of federalism: the system whereby the states submitted to Congress certain powers, but maintained for themselves any powers not enumerated for Congress. There is much more that must be said here, and will be said in time, but ultimately this was reflected in the 10th Amendment, an amendment crucial to many states in order to even secure their ratification of the Constitution.

Why is federalism important? Because ultimately the Electoral College was a compromise rooted in federalism. The vast majority of the debate in Philadelphia in 1787 was around what powers the new federal government would have (aka, what powers the states would delegate to it). Central to this was that states would ultimately retain sovereignty over the federal government. (And despite modern commentaries that ignore this issue, it is logical enough: why would states, so recently having fought for independence from a power sovereign over them, give up that sovereignty once more? I will have much more to say on this to make my case as the blog continues).

Ultimately, the Framers agreed to a separate body of delegates wholly separate from the legislature (Congress) that would chose the president. These delegates would be, in turn, chosen by the states (which at that time meant state legislatures). And this is where the idea of federalism played a key role: it was the states that would choose their electors. The executive would be a branch of the federal government created by the states, much like the Senate (prior to the 17th Amendment, state legislatures chose Senators). It was one more important way that states would retain their sovereignty over the newly created federal government.

And despite all the ways that this doesn’t fit in the American psyche well today, this was not particularly controversial for early Americans: state legislatures were the primary representatives of the people, and the federal government, especially the Senate and the Presidency, were representatives of the state legislatures.

So what changed? I’ll address two key changes that affect how we view the presidency and the election process today.

jacksonian-democracyFirst, during the early 19th Century, the country became increasingly democratic. Suffrage expanded significantly, modern political parties were formed, and more and more people engaged in politics from the local level upward. The democratization of society pressured more and more state legislatures to turn over the choosing of the presidential electors to the people of their states. And as time went on, all states eventually did so. That is why we go to the polls to vote, and by daybreak know who the next president will be, weeks before the official Electoral College vote. We chose our states’ electors (practically speaking, we dictate who they will vote for).

Theodore Roosevelt

Theodore Roosevelt

Second, the view of the presidency as a state-chosen position changed radically with Theodore Roosevelt, who more than probably any other president propagated that the president was the unique representative of all Americans. This is certainly how the president is viewed today, and has been ever since Teddy Roosevelt. And with that, the demand that the president be chosen by a national popular vote has grown, for obvious reasons.

So I’ll wrap up this rather long blog with a few key takeaways.

First, the expectations on the presidency have changed dramatically since the role was created in 1787.

Second, the presidential election system, so long as it is accomplished through the Electoral College system, is a state-by-state election process, not a national election. And this is key to remember. Voters in each state decide who that state choses for a president. Instead of at least 51% of the national vote “taking all,” at least 51% of each state vote “takes all” for that state (again, with the exception of Nebraska and Maine, both of which split their votes proportionally).

And this is what it comes down to. The federal system is all but withered today. And yes, I will have those who debate me on this, but originally federalism meant that states are ultimately sovereign and delegate certain powers to the federal government. Though there has been an uptick in the last couple decades in slight favor of states’ rights in some areas, there is little left of the Framers’ original view of federalism. (As for my part, I will argue in favor of an originalist perspective on federalism. If you have not done so, I highly recommend listening to Tom Woods’s speech on this issue and nullification here.)

But the Electoral College remains.

Should it remain? I’ll leave that to you to decide. Should we have a president who is chosen by popular vote as the unique representative of “all” American people, as Theodore Roosevelt proclaimed? Or a president who, at least in principle, is the choice of the individual and, again, in principle, sovereign states by whatever means each state chooses to assign its delegates.

And in the end, either way you stand on those questions doesn’t really make much practical difference. The Electoral College exists primarily on tradition and principle. Is that tradition and principle worth keeping it? I would argue that it is the principle that is more important than the Electoral College system itself.

Yes, I am well aware I have deviated from the typical approach to this discussion, which usually centers around how its “unfair” if the president wins the Electoral vote, but loses the popular vote, or how its “unfair” that 48 states have a “winner-takes-all” approach to choosing their delegates. Or the common, “then your vote doesn’t matter” argument for states that traditionally swing an expected way on elections. Certainly, in practical terms, it draws unique attention to a handful of swing states during each presidential election cycle.

So back to the original Facebook post: Is it good for modern America? I don’t have a clear answer. There may be a better system, a system that better preserves liberty. But this is what I do know. The broader issue of federalism is what is most important. The more power states lose, and more power the central government gathers to itself, the more our liberties are at risk. In the end, the Electoral College, while it may have been a compromise and an experiment, is still, in principle and theory, one of the last vestiges of federalism as intended by the Framers.

(For an even more in-depth analysis, read this article by Kevin Gutzman, one of my primary sources.)

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5 Responses to The Electoral College: An Issue of Federalism

  1. otto says:

    With the Electoral College and federalism, the Founding Fathers meant to empower the states to pursue their own interests within the confines of the Constitution. National Popular Vote is an exercise of that power, not an attack upon it.

    The Electoral College is now the set of 538 dedicated party activists who vote as rubberstamps for their party’s presidential candidate. That is not what the Founders intended.

    The Founding Fathers in the Constitution did not require states to allow their citizens to vote for president, much less award all their electoral votes based upon the vote of their citizens.

    The presidential election system we have today is not in the Constitution. State-by-state winner-take-all laws to award Electoral College votes, were eventually enacted by states, using their exclusive power to do so, AFTER the Founding Fathers wrote the Constitution. Now our current system can be changed by state laws again.

    During the course of campaigns, candidates are educated and campaign about the local, regional, and state issues most important to the handful of battleground states they need to win. They take this knowledge and prioritization with them once they are elected. Candidates need to be educated and care about all of our states.

    The current state-by-state winner-take-all method of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), under which all of a state’s electoral votes are awarded to the candidate who gets the most votes in each separate state, ensures that the candidates, after the conventions, in 2012 did not reach out to about 38+ states and their voters. 10 of the original 13 states are ignored now. 80% of states’ votes were conceded months before by the minority parties in the states, taken for granted by the dominant party in the states, and ignored by all parties in presidential campaigns. Candidates had no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they were safely ahead or hopelessly behind.

  2. otto says:

    Because of state-by-state winner-take-all laws, not mentioned, much less endorsed, in the Constitution. . .

    In the 2012 presidential election, 1.3 million votes decided the winner in the ten states with the closest margins of victory.

    One analyst is predicting two million voters in seven counties are going to determine who wins the presidency in 2016.

    With the end of the primaries, without the National Popular Vote bill in effect, the political relevance of three-quarters of all Americans is now finished for the presidential election.

    In the 2016 general election campaign
    As of Sept 23, half (77 of 153) of the presidential and vice-presidential campaign events between the nominating conventions and the first debate were in just 4 states (Pennsylvania, Florida, North Carolina, and Ohio).

    88% of the events (135 of the 153) were in the 11 states identified as closely divided “battleground” states by Politico and The Hill. 29 states have been totally ignored.

    In the 2012 general election campaign

    38 states (including 24 of the 27 smallest states) had no campaign events, and minuscule or no spending for TV ads.

    More than 99% of presidential campaign attention (ad spending and visits) was invested on voters in just the only ten competitive states..

    Two-thirds (176 of 253) of the general-election campaign events, and a similar fraction of campaign expenditures, were in just four states (Ohio, Florida, Virginia, and Iowa).

    Issues of importance to non-battleground states are of so little interest to presidential candidates that they don’t even bother to poll them individually.

    Charlie Cook reported in 2004:
    “Senior Bush campaign strategist Matthew Dowd pointed out yesterday that the Bush campaign hadn’t taken a national poll in almost two years; instead, it has been polling [the then] 18 battleground states.”

    Bush White House Press Secretary Ari Fleischer acknowledging the reality that [then] more than 2/3rds of Americans were ignored in the 2008 presidential campaign, said in the Washington Post on June 21, 2009:
    “If people don’t like it, they can move from a safe state to a swing state.”

    Over 87% of both Romney and Obama campaign offices were in just the then 12 swing states. The few campaign offices in the 38 remaining states were for fund-raising, volunteer phone calls, and arranging travel to battleground states.

  3. otto says:

    Since World War II, a shift of a few thousand votes in one or two states would have elected the second-place candidate in 4 of the 15 presidential elections

    Policies important to the citizens of non-battleground states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

    “Battleground” states receive 7% more presidentially controlled grants than “spectator” states, twice as many presidential disaster declarations, more Superfund enforcement exemptions, and more No Child Left Behind law exemptions.

    Compare the response to hurricane Katrina (in Louisiana, a “safe” state) to the federal response to hurricanes in Florida (a “swing” state) under Presidents of both parties. President Obama took more interest in the BP oil spill, once it reached Florida’s shores, after it had first reached Louisiana. Some pandering policy examples include ethanol subsidies, steel tariffs, and Medicare Part D. Policies not given priority, include those most important to non-battleground states – like water issues in the west.

    The interests of battleground states shape innumerable government policies, including, for example, steel quotas imposed by the free-trade president, George W. Bush, from the free-trade party.

    Parochial local considerations of battleground states preoccupy presidential candidates as well as sitting Presidents (contemplating their own reelection or the ascension of their preferred successor).

    Even travel by sitting Presidents and Cabinet members in non-election years is skewed to battleground states

    • L.C.Keagy says:

      Thanks for your input on this. I think that much of what you add is complementary to my own historical analysis of the College. But you are entirely correct; the modern scenario causes for concern, especially, as I would see it, in the pandering that swing states receive in the form of federal aid and subsidies, followed by the additional attention given by candidates during their races. And I really have no qualms with confronting these issues as a gross distortion of a system rooted in what I think is an important principle. Perhaps, then, we might consider (for the sake of argument, at least) that national elections are a worthwhile violation of the principle of federalism in order to bring and end to these particular abuses of power and attention…? My key concern is: how is liberty best preserved? That precedes the questions about who best represents the country or takes into account the concerns of all portions of the country. If those latter concerns help strengthen the first, then great. So perhaps you are right; perhaps the distortions and abuses in the system merit its abolition. Certainly it is far awry of what the Framers intended, as I think I made clear, and you further solidify with acute detail.

      Thank you for taking the time to add your insight!

  4. L.C.Keagy says:

    And one more note:
    I think the biggest problem in relation to what you have brought up is the money that flows through Washington. National elections may alleviate the political pandering to swing states, but not the true problem: that so much federal money is flowing through Washington, period. This goes back to my earlier blog: Human Nature is Like Water. Where so many dollars are available, you will see intense catering. That’s the real problem. The federal government should not have access to so many tax dollars (or any, in my opinion) that they can spend with discretion. Corruption isn’t the result of poor leaders or leadership or voting processes, et cetera, but is inherent in its own opportunity.

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