Ditch the Electoral College? Why Stop There?

With the completion of the closely-contested 2016 presidential election, the Electoral College is again in the crosshairs. Dr. Matt Nehmer, Executive Director of The Santa Barbara & Ventura Colleges of Law, offers a historical perspective on the institution and a provocative proposal on what to do next.Wyoming and the Dakotas have more voting power in the Senate than California and New York combined. It’s a fact that shouldn’t surprise those of us who paid attention in high school civics. That doesn’t mean the logic ceases to perplex the rational mind. How does a voting block representing 2.2 million people have 33 percent more legislative sway than one representing 59 million people? A similar question has emerged now that the final Electoral College scorecard is in for the 2016 election: How does the winner of the popular vote lose the presidency—not once but twice in the last 20 years?

Jettison the Electoral College! It’s an 18th century relic whose time has passed! I heard it has something to do with slavery, therefore time to go! Or so the rhetoric goes, especially among those on the losing side of the contest. One has to imagine that voices were raised in 1888 when Grover Cleveland lost in the same way to Benjamin Harrison, or when Rutherford B. Hayes needed congressional deal-making to settle the election of 1876 when neither he nor Samuel Tilden (who won the popular vote) secured an Electoral College majority.

The reason the Electoral College exists in the first place is the same reason that every state has two Senate seats. It all dates back to the debate that pitted state power against the collective populace. To further understand is to revisit the political maneuverings present when this whole adventure got started.

The year is 1787. That summer, representatives from every state gathered in Philadelphia to deliberate on what would become the U.S. Constitution. First, was the mechanics of legislative representation. Lining one side of the chessboard were small-state delegates who favored the Articles of Confederation rule that each state, regardless of population, maintained equal standing in federal decision making. Facing them were the large-state delegates who waved off such logic, instead arguing for representation influenced by population.

Today’s political class should take note on what happened next: the two factions compromised. “Let’s do both!” suggested Roger Sherman and Oliver Ellsworth of the Connecticut delegation (I paraphrased their proposal to save space). The outcome was the bicameral model with the large states securing population-based representation in the House and the smaller, primarily rural, states getting equal representation in the Senate. It seemed like a good idea at the time.

I recap this “Schoolhouse Rock” episode as a reminder that the Electoral College was installed on, to use a modern metaphor, the operating system of a large-state/small-state compromise. With the issue of legislative representation resolved, it made sense that the logic behind the “Great Compromise of 1787” would extend to the election of the president. Imagine the debate in Philadelphia had delegates returned with the premise of a direct popular vote.

A hypothetical exchange:

Edmund Randolph of Virginia: Mr. Chairman, must we debate this again? By our graceful design, the Chief Magistrate is to answer to all people, therefore subject to a federal agenda over the individual whims of the states. We have nothing to fear with a direct election of said chief.

John Dickenson of Delaware: Mr. Chairman, contrary to the views of the learned Gentleman from Virginia, the principles present in our Legislative representation homily remain. The virtues of our erstwhile settlement, a mingling of state and popular influence, must extend to the executive. How else are the rural concerns of smaller states to stand against the urban population might of our neighbors?

And so we have Article II, Section 1, Clause 2: “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.”

Hamilton in particular flaunted amusement that unelected people would serve, perhaps ironically, as Electors. He writes in Federalist No. 68, “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 the reasons and inducements which were proper to govern their choice.” Irony indeed.

While true the Electoral College in practice never reached the high decorum expressed in Hamilton’s vision, it remains an artifact of compromise. Its majority threshold of 270 votes has the Senate baked in, and therefore the messy machinations of men seeking to balance power between the interests of states—rural and urban, large and small—and a collective population. Doesn’t an argument for elimination of the Electoral College, and its implied system of checks and balances, invite a like argument against our bicameral legislature? Do we still need the Senate?

If we were to open the proverbial hood of our system to throw out the Electoral College, should we not at least entertain reallocating our 536 (I threw in one more for D.C.) legislative seats strictly by population? The Dakotas and Wyoming (for that matter Vermont, Delaware, and other small populations states) would see their sway diminish with more power going to the population centers. Gone would be the progress-impeding filibusters engineered by a block of locked-armed Senators representing states that depend on bonus votes afforded by a compromise made in 1787. A Republic built on the rational technology of equal representation should, in theory, keep pace with progress with the elegance of a Swiss timepiece.

But that’s not our system. Instead our approach to governance works more like a broken watch, counted on to be right only twice a day with occasional headway due to furious shaking to get the gears moving again. It’s clumsy. It’s slow. It’s irrational. And yet it has yielded more social progress, innovation, and economic prosperity in the last 230 years than the previous two millennium combined.

Had the popular vote prevailed this past November 8, would the plight of the working class in rural middle America be receiving as much attention? Unlikely. For all of its awkward machinery, our approach to representative governance (including the presidency) has its virtues. The tension between population-rich regions and rural enclaves, and their ancillary cultural and economic dimensions, remains coiled, just as it did nearly a quarter of a millennium ago.

Delegates then wrestled with the distinction between these United States and the United States just as we do today. They were problem solvers—something their contemporaries could learn from. They created the Senate to solve for the divide with the legislature and the Electoral College for the presidency.

Should we try to reengineer their work? After all it was Jefferson who pondered whether laws should expire after 20 years to account for generational shifts (he also argued for the occasional revolution to fire things up). But if we’re going to cast aside the Electoral College, should we not keep going? Is there a case to call a new Constitutional Convention—one influenced by an America that looks fundamentally different than the 1780s—coupled with more than two centuries of empirical data on what works and what could work better in our system. Imagine the televised debates!

What would the Founders say though? My guess, “What took you so long?”