New Views of
the Election of the President: How Direct Choice of Electors by State
Legislators Could Affect Presidential Elections and the Presidency
Martyn Babitz
Political
Science
Introduction
Not since 1876 has a state legislature directly chosen its state’s Presidential Electors under the Constitution’s “Electoral College” system. Most states used this method in the first several Presidential elections.
This Paper will analyze why the Framers allowed state legislatures the latitude to directly choose Presidential Electors, why this approach was ultimately abandoned in favor of popular election of Electors in every state, the potential benefits of returning to direct legislative choice of Electors, and the corresponding effect this method might have on the process of nominating candidates, electing Presidents, and the Presidency itself.
To enhance the benefits of direct legislative choice, this study proposes that all states adopt measures to combine the district election method with direct legislative choice.
Among the most controversial issues at the Constitutional Convention was the method of selecting the President. The delegates debated this issue on 21 non-consecutive days and required 60 ballots, relating to seven distinct proposals, prior to obtaining consensus on the final provisions (Bowen 189; Slonin 35; Katz 2). Proposals included Congressional choice, state legislative choice, national popular vote, and an Electoral College system whereby Electors within districts of each state would be elected for the purpose of choosing the President (Farrand 21, 68, 80; vol. 1; Farrand 29, 31-32, vol. 2).
Gouverneur
Morris’ proposal that the people at large elect the President was defeated by a
9-1 vote, with George Mason of
After debating the alternatives, Gouverneur Morris moved to treat the determination of the method of electing the President as “not being yet finally determined,” which passed (Farrand 480; vol. 2). Consequently, the issue was referred to a special committee consisting of one delegate from each state. This committee introduced a plan involving indirect election by Electors (Farrand 493-94; vol. 2), which was approved and included in the Constitution as signed and ratified. As subsequently modified by the Twelfth Amendment, this plan remains the Electoral College system in effect to date.
The Convention’s special committee dictated that the selection of Presidential Electors was to be determined “in such Manner as the Legislature thereof may direct.” This provision allows the broad discretion of state legislatures to directly choose Electors or popular election in contrast with the previous suggestion to confine the process to the election of members by the House of Representatives (“by the People of the several States” in Article I, Section 2) and senate (“chosen by the Legislature thereof” in Article II, Section 3 of the original Constitution).
Though the
motion to have state Electors choose the President carried 6-3 when it was
first approved, the more favorable vote of 8-2 was returned when the motion
specified that Electors should be “chosen by State Legislatures”
(Farrand 57-58; vol. 2). This voting data suggests a preference for direct
legislative choice, rather than a popular election. This preference is further
demonstrated by the provision produced by the special committee allowing state
legislatures to exercise full discretion in respect to the selection of
Electors. Considering this provision within the context of the final two weeks
of the Convention, it is possible to conclude that it was an effort to placate
delegates (such as Gouverneur Morris, a member of the special committee) who
favored a popular election. Further, outspoken Morris likely influenced the
special committee to adopt this broad language as a compromise to provide for
one or more states to allow popular election of Electors. In fact, Morris,
along with James Wilson, ensured that their home state of
Independent
Electors Integral to Framers’ Plan
Critical to the adoption of the Electoral College system was the unanimous consensus that Electors (no matter how chosen) were to act as entirely independent representatives of the people in casting their vote for President (McCormick 32). In Federalist No. 68, Alexander Hamilton wrote:
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 pre-established body, but to men chosen by the people for the special purpose, and at the particular conjuncture.
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 these 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 so complicated an investigation. … [t]hey have not made appointment of the President to depend on any pre-existing bodies of men who might be tampered with beforehand to prostitute their votes … (412-413)
Further to this understanding, John Jay wrote in Federalist No. 64:
[T]hey have directed the President to be chosen by select bodies of Electors to be deputed by the people for that express purpose; …[t]his mode has, in such cases, vastly the advantage [over] elections by the people in their collective capacity where the activity of party zeal, taking advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the Electors. … [a]s the select assemblies for choosing the President … will in general be composed of the most enlightened and respectable citizens, there is reason to presume that their attention and their votes will be directed to those men only who have become the most distinguished by their abilities and virtue, and in whom the people perceive just grounds for confidence. (390-91)
Note that the Federalist essays
were published in
The purported independence of Electors may have been responsible for mitigating the concerns of the delegates with respect to the means of choosing Electors. As independent representatives of the people, Electors would occupy a role similar to elected state legislators (albeit for a more narrow, specific purpose). Having expressed deep concern over direct popular election at the Convention, both in debate and by overwhelming negative votes against such proposals, the Framers would likely have firmly opposed popular election of directed, or “pledged,” Electors. Conversely, however, independent Electors (regardless of whether they were chosen directly by the people or by state legislatures) guaranteed a degree of neutrality that sought to protect the integrity of the republican principles upon which the Constitution was structured by acting in a purely representative capacity. Accordingly, the assumption of the Electors’ independence may explain why Convention delegates ceased debating the means of appointing Electors and devoted their remaining time to other provisions of the committee’s Electoral College plan.
Following the Convention, there was a difference of opinion as to the appropriate method of choosing Electors within the broad discretion granted to state legislatures. Although delegates such as Elbridge Gerry stated at the Convention that he was “… not clear that the people ought to act directly even in [choice] of Electors, being too little informed … and liable to deceptions” (Farrand 80), Alexander Hamilton and John Jay regarded the popular choice of Electors as the Framers’ intent (Hamilton 413; Jay 390).
In Federalist
No. 45 James Madison wrote: “Without the intervention of the state
legislatures, the President of the
Scholars also disagree on the intention of the broad provision for choosing Electors. Richard McCormick asserts: “The general assumption was that they would be popularly elected” (25). Randall Holcombe conversely contends: “It is apparent from the wording of this provision of the Constitution that the Founders did not intend for Electors to be democratically elected (although they did not rule out the possibility)” (2). Further, Jeffrey Tulis explicitly presumes that the Framers intended direct legislative choice of Electors and that such was intended to further the fundamental Constitutional principle of representation. (34-35; note 15).
On the other hand, Michael Glennon asserts the neutral position
implicit in the provision’s text: “Because delegates to the Constitutional
Convention were so deeply divided on how the President should be chosen, the
framers decided not to require the states to follow a given method of
selection. Instead they chose to give the states broad discretion in deciding
how to appoint Electors” (3). Perhaps Forrest McDonald most accurately
portrayed the inherent compromise among the conflicting views of the factions
at the Convention. In not requiring states to follow a specific method of
choosing Electors, the Framers clearly intended greater control for state
legislatures: “It provided that Electors be appointed in such manner as the
several legislatures should direct; that took care of the objections of those
who feared popular election, for it meant that the legislatures could elect the
Electors if they chose to do so” (250).
In Bush v. Gore (2000), the Supreme Court affirmed that “the individual citizen has no federal constitutional right to vote for Electors for the President of the United State unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College … [the state legislature] may, if it so chooses, select the Electors itself.” In fact, states utilized both direct selection by their state legislatures and popular election (in two general forms) for the first several Presidential elections. The three general modes employed were: (i) direct selection by the state legislature (hereinafter the “direct legislative choice method”); (ii) election of Electors by popular vote within separate districts of the state (hereinafter the “district election method”); and (iii) election of the entire slate of Electors by statewide “winner-take-all” popular vote (hereinafter the “general ticket method”).
Beginning
with the first Presidential elections, political factions used the array of
methods available for choosing Electors to seek implementation of the mode that
would be most favorable to their candidates. As a result, state legislatures
often changed their method of selection in a particular Presidential election
year depending upon which method would yield the best result based on their
partisan preferences or based on a compromise within a particular legislature
between opposing parties. For example, from 1800 through 1820,
Further, states gravitated toward either direct legislative choice or the general ticket method. No state used the district election method by 1836, so that each state (or more specifically its dominant Party) could maximize its influence by casting all of its Electoral votes as a unit. Despite any potential advantages of the district election method, “self defense” compelled every state to adopt one of the unit methods because the other states had done so and to do otherwise would minimize that state’s effect on the selection of the President (McCormick 109, 111).
In
the first Presidential elections, in which many state legislatures directly
chose Electors, the problem of the “split Legislature” arose. Most notable was
the first election in which
The prospect of a deadlocked legislature is a disadvantage of direct legislative choice as compared to popular election. On the other hand, direct legislative choice avoids the more potentially dangerous presence of voter fraud, or thin margins leading to allegations of voter error and demands for recounts, as is alleged in 1960 and 2000.
The
Framers hoped that political Parties would not be necessary. It was thought
that the narrow powers delegated to the federal government and Constitutional
rule of law (the “organic unity of the republic”) would confine politicians to
the same general goals and ideology within those restricted parameters of
governance. Parties were seen as
unnecessarily promoting contention and undermining election practices rather
than elevating the most desirable candidates, those possessing integrity and a
commitment to the public good (McCormick 6). In quoting Delegate Luther Martin,
the notes of Constitutional Convention Delegate Robert Yates indicate, however,
there were factions even at the Convention itself (qtd. in
The 1824
election, in which John Quincy Adams prevailed over Andrew Jackson in the House
of Representatives despite the fact that
George McDuffie of the House of Representatives proposed a Constitutional Amendment based on the district election method. He stated that if the general-ticket system were adopted in all states (as was the trend), “a central power would spring up in almost every state, consisting of the ruling politicians of the day, who would be bound to the people by no tie of regular responsibility and be, in every respect, more liable to cabal, intrigue, and corruption than the Legislature itself” (emphasis supplied)” (McCormick 156-57).
These proposed Amendments for a uniform district election method had two influential advocates: James Madison and Andrew Jackson (Jackson had lost the highly contentious 1824 Presidential election in the contingent House of Representatives election and would go on to win the 1828 election) (McCormick 156,159). Nevertheless, McDuffie’s Amendment was defeated in the House by a 102-90 vote, and the Senate, after waiting for the result in the House, did not go forward thereafter (McCormick 159). Jackson continued to push for this amendment as President to no avail, and by 1836, with every state but South Carolina having adopted the general ticket method, the push for reform of the Electoral College along these lines was essentially dead (McCormick 159-60).
On
the basis of the “federative principle” advanced principally by
Opponents of the district election method rallied around the federative argument, claiming that the Constitution’s federal system required that each state commit its Electors as a unit. Doing otherwise would mean that the President would be representing the overall people of a consolidated nation rather than the people of the respective states as Constitutionally appropriate (McCormick 158).
The claim of “federative principle” above parallels James Madison’s
analysis in Federalist No. 39, in which Madison sought to portray the federal
government as “partly federal and partly national” (246). Madison argued that
popular election of the House of Representatives proportionate to population
(within separate Congressional Districts created by every state to implement
this provision of the Constitution) made the federal government partly
national, while legislative selection (under the original Constitution) of two
Senators representing each entire state made it partly federal (244).
Similarly, Stevenson and his allies erroneously asserted that the
district election method would somehow convert the President into a national
representative of the “people of
Proposed New Method:
Combine District Method with Direct Selection by State
Legislatures
James
Madison, known as the “Father of the Constitution” for his key role at the
Constitutional Convention and in subsequent ratification efforts, wrote in
1823: “The district mode was mostly, if not exclusively, in view when the
Constitution was framed and adopted; and was exchanged for the general ticket
and legislative election as the only expedient for baffling the policy of the
particular states which had set the example” (McCormick 157). The above
statement, made at a time when the experiences of the first elections may have
colored his recollection of the Convention, must be considered in conjunction
with his assertion immediately following the Convention in Federalist No. 45,
that state legislatures “will, perhaps, in most cases” directly choose Electors
(291). These statements should be further measured alongside
Taken together,
Under
this method, state legislators would choose one Elector to represent each
Congressional District and two Electors at large. The Electors would be
selected by each house of the state’s legislature excepting
A
caucus of those state legislators representing all the legislative districts
partially or wholly comprising part of a Congressional District would select
that Congressional District’s Elector. For example, in the Third Congressional
District of New Jersey, members of both houses of the New Jersey Legislature
representing the Sixth, Seventh, Eighth, Ninth, and Tenth state legislative
districts (i.e., the legislative districts that are contained, in whole or
part, within the Third Congressional District) would caucus to vote for the
Presidential Elector for that Congressional District. Deadlocks in any caucus
would be broken by a general vote, first of the upper house, and then the lower
house of the legislature in alternating order to avoid conflict in states with
split legislatures (different parties controlling each house). Accordingly,
those states with only the minimum three Electoral votes, the upper and lower
house of the Legislature would each choose one Elector, and in the event of
deadlock over the third Elector among the legislative caucus (which would
involve every state legislator because that state’s sole Congressional District
would cover the entire state), the upper house would choose that Elector as
well. Similarly, allowing each house of a state legislature to separately
select one at large Elector would also avoid disputes in split legislature
states. As to the special case of the
The proposed
method is novel, not just in terms of combining two methods, but also in
suggesting direct legislative choice of Electors. All proposals in the
governmental and academic areas have heretofore focused on reforms that involve
popular voting as an integral component (Katz 4-5; McCormick 210-11). Strong
resistance would be expected from the public, government, and academia with
respect to any proposal involving direct legislative choice as “undemocratic”
(Diamond 50-58) (evidenced, for example, by the public uproar as well as
political and judicial machinations regarding the disputed
Choosing the Best Individuals to Serve as President
A critical feature of the Electoral College created by the Framers’ was their universal understanding that Electors, whether chosen by legislatures or popular vote, were to be independent officials of high esteem, well suited for the special representative purpose of exercising their unfettered discretion in casting their votes for President in the people’s best interests, a task not appropriate for a less informed populace (McCormick 32). By the first Presidential election, however, and certainly by the contentious election of 1796, pitting Federalist John Adams against Republican Thomas Jefferson, the key assumption of independent Presidential Electors was proven wrong in practice by partisan political forces (McCormick 33-35; 53-57).
The Framers’ intended independent Elector was thus replaced by the “pledged elector,” so much so that less than a dozen times in Presidential election history has an Elector broken ranks in voting for a different candidate, earning those few unique individuals the notorious label of “faithless elector” (“How U.S. States Choose Presidential Electors” 3). The most recent faithless elector was Republican Elector Dr. Lloyd Bailey of North Carolina who cast his vote for George Wallace rather than Richard Nixon in 1968 (Hardaway 53; Eddlem 1).
In fact, 21 states now legally bind Electors to vote according to the candidate they are pledged to, and 5 of those states impose a penalty for “faithlessness” (“How U.S. States Choose Presidential Electors” 1-2). In 1952, the United States Supreme Court overruled the Alabama Supreme Court in holding that pledged Electors, necessitated by the exigencies of Party politics, did not violate the Constitution (Hardaway 104). Even proponents of the Electoral College view the faithless Elector “problem” as a threat to the system’s integrity and a weapon for those who would eliminate the Electoral College entirely by pointing to this “flaw” (Reagan 243; Hardaway 105-6; McCormick 210-11).
Nevertheless, the Framers may have left the method of choosing Electors to the broad discretion of state legislatures, not only to avoid further conflict in obtaining consensus on a Constitution, but because under any mode of choosing independent Electors the republican, representative nature of electing the President is preserved. With independent Electors fulfilling the special purpose of casting the state’s votes for President, popular election of those Electors would mirror popular election of state legislators for the general purpose of state lawmaking. Accordingly, under either direct legislative choice or popular election of independent Electors (as opposed to pledged Electors), the representative nature of Electors in exercising independent discretion to cast votes for President would be the same.
The reality of “pledged Electors” that quickly resulted from intense partisan interest in the “big prize” of the Presidency, and corresponding rise of successive two-party systems, however, has destroyed the capacity of the Electoral College to maintain its republican aspect (as compared to the popular democracy feared by the Framers) unless the choice of perfunctory Electors is made by the people’s elected state representatives (i.e., state legislators) rather than by popular vote. Popular voting for Electors who have no independent discretion is equivalent to the direct democratic election of the President by the people on a state-by-state basis.
Randall Holcombe writes: “Quite clearly, the process was not intended to be democratic, although it has evolved that way despite the fact that the Constitutional provisions for selecting a President remain essentially unchanged” (3). The pledged Elector transformed the Electoral College into a direct democratic institution without amending the actual words the Framers intended to ensure an indirect republican, representative mechanism for selecting the President.
Had the Framers understood their miscalculation regarding the lack of independence of Presidential Electors, it seems apparent from their anxiety regarding popular democracy that they would have insisted that state legislatures, as elected representatives of the people, directly choose such non-independent Electors or vote directly for President. Of course, the balance between large and small states, reflected in the number of Electors allocated per state, would make direct election of the President by state legislatures impractical or impossible. If the Framers had instead agreed that every state would have equal influence in choosing the President, then each state legislature could simply have cast one vote for President. Because the Framers compromise, however, provided for proportionate weighting of each state’s participation in Presidential elections, an additional category of representatives, in a number equal to each state’s allocated share of Electoral votes, was required to the special purpose of casting their state’s votes for President.
If the Framers intended Electors to be bound officials simply performing the mechanical function of reporting their state’s votes for President, then they likely would have found it unnecessary to impose restrictions on eligibility to serve (Article II, Section 1 prohibits Senators and members of the House of Representatives, and any other officer of the federal government, from serving as Elector) or even to have Electors at all (for example, each state’s Governor could have simply reported how its state cast its allocation of Electoral votes for President). Certainly, the Framers would not have wasted valuable time in the Convention discussing the importance of obtaining “capable men” for a role of such “vast importance,” as they did, for example, on July 24th (Farrand 99-100; vol. 2).
Mitigating Demagoguery
The financial cost and related burdens of popular election of the President are staggering. Presidential campaign spending was $750 Million in 2000, well more than double the level of $325 Million in 1984 (Polsby 54; Table 3.1). Federal election laws compel taxpayers to substantially fund campaigns, even those of candidates they do not like (Polsby 67-68).
In addition,
with popular election, incumbent Presidents seeking re-election, or other
office holders seeking the Presidency, must allocate essentially all of their
time for many months leading up to Election Day to the campaign and away from
their critical duties of office (Polsby 138-43).
Greater Representation of All People’s Interests in Nominating and Electing Presidents
The shift from party caucuses to primaries in order to allow direct voter participation in the selection of major party nominees has instead created the reverse effect of disenfranchising most voters who do not happen to live in Iowa and New Hampshire, the first two states to hold voter events in the Primary season (Polsby 93-101). The voters of these two diminutive states can quickly kill the candidacies of most major party candidates, hardly a system that is responsive to the will of the people (Polsby 100).
Furthermore, artificial media and advertising influences distort choices of a largely uninformed electorate. The media’s biases in determining who are “serious” candidates worthy of coverage, and its incentive to “jump on the bandwagon” to create excitement behind a particular candidate’s momentum, often means that the major party candidates are in place long before voters have the opportunity to cast a meaningful vote in their state’s primary (Polsby 69-76, 100-101).
The Electoral College system represents the Framers’ consensus for indirect election of the President by representatives of the people of each state - Electors. In adopting this system the Framers and the state ratifying conventions’ delegates understood that these Electors would independently exercise their discretion in casting their Presidential votes. However, the immediate rise of factional partisan interests undermined the central Framing concept of the independent Elector and replaced it with the political reality of the pledged Elector. Ultimately, as Andrew Jackson branded the President as the direct representative of the overall American people, popular election of these pledged Electors became the norm in almost every state by the 1830’s.
Retaining independent Electors (chosen by state legislatures or by popular election) assures that the republican, representative principle of the Electoral College is upheld. Under a system of pledged Electors, however, popular election of such perfunctory officials transforms the procedure of selecting the President from a representative, republican process to a state-by-state, democratic popular election rejected by the Framers. Consequently, the only means of preserving the implicit, integral republicanism of the Electoral College within the context of pledged Electors is by having the people’s elected state representatives (their legislators) choose those Electors.
Direct legislative choice of Electors offers more advantages today than at the time of the Founding. These advantages include the ability to: (i) entrust the choice of President to elected state representatives who have a vested interest in advancing the best interests of the people of their state and a far greater understanding of the issues and candidates than the general public; (ii) restrain demagogic claims of Presidential power extending beyond Constitutional limitations derived from the American people rather than the Constitution’s specific delegations of executive power; (iii) eliminate the exorbitant costs of Presidential campaigns, largely financed by taxpayers subsidizing candidates they may not support; (iv) provide real, proportionate representation to all states in the nomination of candidates rather than the grossly disproportionate influence accorded states such as Iowa and New Hampshire that hold early primary events; (v) mitigate undue media and advertising influence over the choice of President; (vi) provide representation to all people in all states in the choice of President, voter and non-voter alike; and (vii) increase the likelihood of elevating the best possible individuals to the Presidency.
Direct legislative choice of Electors in Congressional Districts under the hybrid approach proposed herein avoids the potential problem of deadlocked legislatures, grants greater representation to the varying interests and preferences of diverse parts of each state, and reduces central party machine control over the election process. To ensure uniform influence among all states in Presidential elections, a Constitutional Amendment incorporating this methodology would be advisable.
The period when direct legislative choice of Electors predominated gave
the
Works Cited