November 8th, 2016 the United States for the fifth time in 192 years was confronted with a candidate winning the presidency without winning the popular vote. The Electoral College designed by the founding fathers is once again confounding and angering voters, much like it first did in the 1824 presidential election.
For democrats and the state of New York, the electoral system has been uniquely unkind. The loser in each of these races was a democrat and three were New York politicians. Samuel J. Tilden and Grover Cleveland had served as governors of New York and Hillary Clinton served in the Senate for New York. Cleveland was also the incumbent president when he lost his election. For Tilden in 1876, the final results were particularly cruel. Tilden won the popular vote by 3% and was one electoral vote short of the 185 needed for victory over Rutherford B. Hayes, who had only 165 votes. Twenty disputed electoral votes from four states caused a political crisis and led to the formation of an electoral commission comprised of eight republicans and seven democrats. The commission voted along party lines and awarded all the votes to Hayes, giving him the presidency.
The outcome of the 1824, 1876 and 2000 elections were decided by the House of Representatives, an election commission and the Supreme Court, respectively. However, Grover Cleveland's 1888 electoral lose came as a result of a leaked letter from the British Ambassador to the United States. The letter, published in the newspapers two weeks before the election, indicated the British government preferred to see Cleveland re-elected. The letter sparked an anti-British backlash and claims of foreign interference. The results were devastating, Cleveland won the popular vote with over 90,000, but failed to win his home state of New York and it's 36 electoral votes, costing him the election. Thus, leaked mail and claims of foreign influence were an important factor in more than just the 2016 election.
It is a non-New Yorker, Andrew Jackson who would have preferred, more than anyone else, that the Electoral College did not determine who wins the presidency. In 1824, Jackson won the popular vote and the most electoral votes in a four way race. However, he did not have a majority of electoral votes which under the 12th Amendment required the House of Representatives to decide the outcome. John Quincy Adams, who had won neither the popular or electoral vote, was declared president after another candidate, Henry Clay threw his support to Adams.
In all, we have had five elections where the electoral results went against the will of the people as expressed by the popular vote. Why do we have an electoral system? Why don't we have a more democratic method of electing presidents? The primary architect of the Constitution, James Madison favored using the popular vote to elect the president, as did a few other members of the Constitutional Convention, but they were clearly in the minority. Other convention members, such as Alexander Hamilton, believed that the critical task of electing the president should be in the hands of electors who would make more informed and reasoned choices than the general voting population. Madison ended up supporting the electoral process proposal because he believed that slave and small states would see the popular vote as diminishing their influence in Congress and on presidential elections. The electoral system in conjunction with the Three Fifths Compromise was especially kind to slaves states, awarding them a third more electors than they would be entitled to if the process were based only on the free white population.
The Electoral College made sense in the context of the uncertain early days of the young republic. Satisfying slave and small states' fears of the popular vote enabled passage of the Constitution and encouraged a more cohesive union. The demands of those days no longer apply and slavery is long over, yet the Electoral College is still with us. However, it would be incorrect to say it has not changed. By 1823, James Madison felt the electoral system had changed for the worst because several states altered their method of awarding electors, by enacting a winner-take-all system. All the electoral votes were given to the candidate that won the state's popular vote. Originally, the Electoral College was based on the district system. Electors were awarded to the candidates by how many congressional districts they won. Madison spoke out against the winner-take-all system in a letter claiming "The district mode was mostly, if not exclusively in view when the Constitution was framed and adopted." He was so concerned about this new trend he drafted a constitutional amendment to make the district system for electing the president mandatory. Today, the winner-take-all process dominates, with only Maine and Nebraska still using the district system. With the advent of the winner-take-all electoral system, our presidential election process became less democratic.
All attempts to abolish the Electoral College have failed. However, in 1970 supporters of the popular vote nearly succeeded in getting an amendment passed by the Congress. Emanuel Celler, a New York State congressmen introduced the national popular vote amendment to the House of Representatives. The House passed it by a vote of 339 to 70 on September 18, 1969. The amendment was endorsed by President Nixon and had widespread bipartisan support. The New York Times reported that 30 state legislatures indicated they would support the amendment. Despite it's popularity, southern and small state senators successfully filibustered and killed the amendment bill. They opposed the amendment because they believed the popular vote would reduce their state's political influence in the Federal government. Whether the amendment would have been ratified, if the Senate had approved it in 1970, is hard to say.
Attempts to change the Electoral College system continue. The most successful proposal to date, is The National Popular Vote Interstate Compact. So far, ten states and the District of Columbia have signed onto the Compact. This agreement will go into effect once it has at least 270 electoral votes pledged by it member states. It obligates each member state to give their electors over to the presidential candidate who wins the national popular vote. This system would effectively removes any future presidential election conflicts between the Electoral College and the national popular vote. The compact has accumulated a total of 165 electoral votes. Maryland, New Jersey, California, Illinois, Hawaii, Washington, Massachusetts, Vermont, Rhode Island and New York have joined the Compact. Michigan and Pennsylvania have bills pending that would give the Compact an additional 36 electoral votes.
The Compact is sure to meet with legal challenges and charges of being undemocratic and unconstitutional because it would disenfranchise large blocks of voters. The votes of citizens in states won by a losing candidate would be meaningless and for states not in the Compact, their electoral votes would also be meaningless. This monopoly of the majority of the Electoral College votes would make the remaining 268 electoral votes in non-Compact states unnecessary to the election process. The Compact process will encourage more dissension and protest against winning candidates and could lead to lower voter turn out. The central problem with The Compact is it use of non-democratic means to achieve the ideal democratic goal, the election of a president by the national popular vote. Whether the Compact will achieve its goal of 270 pledged electoral votes in time for the 2020 election or withstand legal challenges that are sure to arise, remains to be seen.
So what can Americans do about the Electoral College and all the anger it has engendered, especially among voters in 2016? Do they wait for the passage of an amendment mandating election by popular vote or wait for enough states to sign onto the NPVI Compact so it can be implemented? Is there a more immediate solution that can be enacted while we wait? Maybe, the most efficient and timely action is to have states return to the original electoral system based on congressional district voting. Not only would states be returning to a process that reflected the intent of the founding fathers, they would make the presidential election more democratic. For example, in New York State, presidential candidates have little incentive to campaign there because the popular vote favors the democrats. Republican candidates will not spend time or money in a state they have no hope of winning electors in and democratic candidates have no reason to do so either because the electors are essentially guaranteed to them. This election year 42% of New York's voters had no direct impact on the presidential race because their candidate did not win the popular vote in the state and therefore, did not receive any electors. As the map below indicates, if New York used a district system, republicans would have won some of the 29 electors on November 8. In fact, 46 of New York States' 62 counties were won by the republican candidate. A district system would allow people to participate more directly in the election, especially in traditionally dominant red and blue states, such as Texas, Arizona, California, and New York. These changes would not only force candidates to campaign in and interact with more people in more states, they would encourage voter turn out.
So, what do we do about the Electoral College? Take immediate steps to revert back to the district based system while we wait for a national popular vote amendment to materialize. It is the easiest solution to enact, because it is already constitutional and only 41 state legislatures would need to implement it. Seven states and the District of Columbia only have one congressional district each, making a change in their laws unnecessary, and Nebraska and Maine already use the district method. Most importantly, it is a change we can accomplish before the next presidential election.
In order to make the district plan a reality, all 50 states and the District of Columbia would have to enter into an agreement, a compact, to use the district process to elect the president. They would also have to agree on whether the two non-congressional district electors will be awarded to the candidate with the most district wins or the candidate who wins the state's popular vote. Without a unanimous agreement, the district system will be ineffective.
Getting unanimous agreement on the district system before the 2020 election is a reasonable goal given the current state of affairs. The opportunity to harvest electors from traditionally red and blue states will serve as an incentive for both political parties. Allowing people to more directly influence the election outcome will encourage a grass roots push for change. The fact that the district system was championed by the founding fathers could also encourage support from more traditional voters. As for supporters of a constitutional amendment for a national popular vote, the district system would serve as a move toward that democratic ideal until an amendment is ratified.
Maybe, Tilden, Cleveland, Gore, and Clinton would have won if the electoral votes were dealt out by congressional district. I will leave that question aside for another day. Who knows, we might end up wondering why we didn't change things years ago. So why not make James Madison and the founding fathers happy and embrace the district system.
Dr. Sean T. Moore, Historian at MyHistoryMatters