http://writ.news.findlaw.com/amar/20011130.html

The remaining two parts of the series include their proposal for bypassing the amendment of Constitution to implement national popular vote. An interesting footnote is that they suggest that the election could be conducted by some organization other than the States at all in order to avoid problems with recounts, varying suffrage laws, ballot access, etc.

http://writ.news.findlaw.com/amar/20011214.html
http://writ.news.findlaw.com/amar/20011228.html

The articles were written in 2001, the book was published in 2005, and makes many of the same arguments. Given the inclusion of the proposal for election of national popular vote, it suggests a bit of revisionism, based on a presumption that there should be direct popular election of the President. From this flows the question: “Why didn’t the Founding Fathers implement direct popular vote?”, rather than, “Why was the electoral college adopted?”

There was little support for direct popular vote in the convention. The votes (by State delegation) were against it by overwhelming margins (1-10, etc.). James Wilson its chief proponent characterized his proposal as being “chimerical”. Gouvernor Morris, another advocate, suggested that in case that no candidate received a popular majority (which would likely happen often) the legislature could choose the President, and gave the example of Massachusetts where this happened. Incidentally, Massachusetts used a similar system in the early selection of its electors, where the legislature chose electors from 2 candidates nominated by the voters, or chose the electors in case of a non-majority, the electors were chosen by the legislature (this was used as late as 1848).

In fact, the 1787 version of the electoral college anticipated such a possibility by providing for election by the House of Representative from among 5 candidates.

The main arguments against direct election were that there was a lack of widespread national awareness of potential qualified candidates, as there might be in a single State; and that candidates from large States would have an advantage, since voters would likely vote for a favorite son.

There is some evidence that this would have been the case. For example, in 1824, Jackson-supporting electors received 96% of the vote in Tennessee; while Adams-supporting electors received 83% of the vote in Massachusetts (against only Crawford opposition).

But the Amar’s have transmorgrified an argument against direct popular election made in 1787 into one discounting a claim made in the 21st Century as to why State’s have a particular voting strength under the electoral college.

To do so they, define a large State as one that has greater than than the mean State population (or that loses voting strength through consideration of the Senatorial electors). In 2000, Tennessee would be right at the dividing line, and had Al Gore been elected, he would have been classified as a large State winner, as would a candidate from Indiana, Washington, or North Carolina, etc. (16 States total).

Were fractional representatives and electors apportioned, Tennessee would have 10.812 electors under an apportionment based on 435 representatives and 100 senators and 10.837 electors under an apportionment based directly on 535 electors. The difference of 0.025 electors is negligible.

Since few Presidents have not come from “large” States, the Amar’s jump to the conclusion that the reasoning behind the electoral college was not to protect the interests of small States, and therefore must have been for some other reason, and they latch on to slavery.

But in 1787, opponents of direct popular election were not concerned that a favorite son from a medium-size State would finish 16th in a direct popular election. They were concerned that voters from the very largest States (Massachusetts, Pennsylvania, and Virginia) would vote for a favorite son and leave their own favorite sons far behind.

In substance, they sought a more knowledgeable electorate. The primary alternatives for election of the President were (1) election by the Congress; or (2) electors chosen by the State legislatures.

There was a concern that election by the Congress would lead to corruption. A President might bestow favors on members of Congress in order to secure his re-election. Congress itself might become corrupted.

But electors chosen by legislators would be a temporary body, less susceptible corruption, especially since they would be chosen from throughout the nation.

An early proposal for electors in the convention would have given each State 1, 2, or 3 electors based on its population, with States with a population between 100,000 and 300,000 having 2 electors. James Madison pointed out that at some time in the future most States would have 3 electors and there ought to be provision for growth of the country. Eventually, the basis for the number of members in the electoral college was set to the same as that for Congress. Here, the electoral college can simply be seen as a sort of special-purpose body that was created as an alternative to election of the President by Congress. If a convention is ever convened for the purpose of proposing amendments to the Constitution, it is quite likely that the basis for membership will be the same as for Congress.

The fact that the number of electors reflected the 3/5 Compromise does not mean that the intent of the electoral college was to protect the interest of white slaveholders such as George Washington, Thomas Jefferson, James Madison, and Andrew Jackson. After all representation in House of Representatives also was based on women, children, idiots, the property-less, illtiterates, felons, and foreigners. the Amar’s note that if a slave-holder freed a slave, and he moved to the North, the Southern State would lose representation. But they failed to note that a Northern State would gain representation, but not a voter.

The 3/5 compromise was as much about the North limiting the voting power of the South, as the South demanding extra voting power. The North would have been quite happy with a 0/5 compromise.

The Amar’s suggest that the 1796 election was more sectionally polarized than that of 1800. But what are the differences? The main was the more disciplined voting for the vice presidential candidates, Charles Pinckney of South Carolina (who ran with John Adams of Massachusetts) and Aaron Burr of New York (who ran with Thomas Jefferson of Virginia). If you are going to have sectional-based elections, shouldn’t you choose a running mate from your section?

The other changes in the electoral vote were that New York (where electors were chosen by the legislature from 1792 to 1824), flipped from Adams in 1796 to Jefferson in 1800 (due to Burr), and that Pennsylvania’s legislature picked its electors for the first and last time that the popular vote was not used in that State. In 1796, the voters had elected mostly Jefferson electors. In 1800, the legislature split the electors. While it is true that Pennsylvania is generally south of New York, it is hardly a southern State.

There were two States, Maryland and North Carolina that chose electors by district and had significant splits among their electors. In both cases it was the tidewater districts of southern Maryland and Eastern North Carolina that voted for Adams, while more inland areas supported Jefferson.

The Amar’s note that in 1824, 3 Southern States, Georgia, Louisiana, and South Carolina were holdouts against popular election of electors, and state that this is further evidence of a link between slavery and the electoral college. They fail to note that the other 3 holdouts were Delaware, New York, and Vermont; or that Maryland and Virginia were the two States that were totally consistent in their popular election of electors. If there is any particular relationship between the mode of election, and the type of the State it is that smaller States were more likely to have the legislature choose the electors, with New York being an exceptional case.

The article suggests that somehow the electoral college caused a delay in female suffrage – that if there had been direct popular election of the President, the States would have had an incentive to expand the franchise. But this presupposes that if there had been direct popular election of the President, that the franchise would have been determined on a State-by-State basis as it was for representatives. But this worked for representatives, precisely because representatives were elected within States. It also presumes that States would have granted women the right to elect governors and legislators merely in order to augment their clout in presidential elections.

A more solid case can be made that the electoral college permitted individual States, beginning with Wyoming in 1890, to extend the franchise to women, and provided a demonstration that would eventually lead to the 19th Amendment 30 years later. If there had been direct popular election of the President, Congress might have rejected Wyoming’s constitution. In 1876, Colorado had considered providing for female suffrage in its constitution, but had not for concern that Congress would not have accepted the constitution. Instead, Colorado provided for female suffrage in school elections.

I suppose I could use the rocks and trees line, though.

Second, people’s votes are treated equally now. Every person in every State votes and the totals are added up within each State to see how the Electoral Votes will be assigned. Just because one State has more Electoral Votes than another is not a sign of inequality against voters in another State. But even if it were, so what? We already discriminate against voters in another way such as age. Right now, you need to be 18 years old in order to vote. Why? I’ve seen some pretty smart 14 and 15 year olds after they’ve taken a high school U.S. History class that covers the Constitution, and I’ve seen some pretty stupid 18 year olds and above who shouldn’t even be allowed near a voting booth. Even if you are right that the Electoral College doesn’t count the votes equally (and I don’t agree with you), at least the people can vote. The under 18 crowd not only doesn’t have their vote counted equally, but they are prohibited from voting at all. This seems to be the far greater transgression. Yet we allow it because we know we have to place limits somewhere even if it discriminates. The writers of the Constitution chose not to have a direct popular vote even if it meant, in your opinion, that some votes are more equal than others.(Again, I disagree with you on that.)

Third, it’s nice that small children understand equal treatment. (Although I’ve seen some actions on playgrounds by bigger children toward smaller children that would seem to dispute that.) But it’s too bad they don’t understand the way the Constitution works. Of course, they don’t yet understand Calculus and Physics either, but give them time, and they’ll understand it. I’m not going to outlaw the Electoral College, Calculus and Physics just because a small child doesn’t yet understand the concepts. Besides, seeing as how many of these same small children believe in Santa, the Easter Bunny and the Tooth Fairy, I guess I just don’t seem to put much credence in their logical and deductive reasoning skills as you do.

I think it would happen sooner,we are already half there with the current system,which has been corrupted by the two major political parties from what the founding fathers wanted.

When you use the word “deadlock” it suggests that perhaps the two houses of a legislature had chosen a different senator, but in fact Congress had provided a method of resolving such disputes by providing that if two houses did not have a concurrent choice, that the election would be by the combined membership. The few deadlocks that did occur happened when there were more than two factions. Had Congress considered this to be a significant problem, they could have provided for elimination of a 3rd candidate.

In other cases, a year-long vacancy may have been due to a legislature not being informed of the vacancy before a legislative session ended. Legislative sessions were short and Congress was a stickler for a literal interpretation of the Constitution, which only provided for appointment by a governor if the vacancy happened during a legislative recess.

And there were deadlocks in the election of Representatives as well. Some States required majority election, and if there was no majority, then they would hold another election a month or so later. Massachusetts once took 8 elections (from October to April) to determine a Representative. The eventual winner finished 3rd in the 1st trial, and 4th in the 2nd and 3rd trials, finishing ahead only of David Cobb.

State margins greater than 40,000:

Tilden: GA 80 (thousand), KY 63, TX 61, MS 60, MO 57, VA 45, TN 44.

Hayes: IA 59, MA 42, KS 41.

Same thing in 1888:

Cleveland: TX 144, AL 60, GA 60, MS 55, LA 55, SC 52.

Harrison: KS 80, PA 79.

The 1880 and 1884 elections which were as close in the popular vote were much more balanced. IOW, when the popular vote winner differed from the electoral vote winner, it is because of piling up massive margins in relatively few States, producing a less pluralistic result.

Presumably, the candidates were not trying to achieve victory in the national popular vote, but rather it was a side effect of an effort to win victory in the electoral vote. If they had been attempting to achieve a popular vote victory, they would have campaigned differently, and even the candidates could have been different.

You have suggested that the “popular vote” instrument would more accurately determine who came in first, and that the “electoral vote” instrument sometimes determined that the candidate who came in second, had come in first. But if the manner of measurement changes the result, can it be said to be accurate at all? If you use a thermometer to measure a fever, what happens if it breaks and the prognosis is lacerations of the tongue and throat and mercury poisoning?

And can a candidate who received more votes be considered to have won, but rather merely been ahead at half time? The Constitution provides a method for resolving elections when no candidate receives a majority of the electoral vote – as happened in the highly fractionated election of 1824. It also tends to discourage factions, such as happened in 1860 and 1912. The NPV plan could well lead to more candidates running, with the winner getting less and less of a plurality.

DDD

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