electoral college

HOME ABOUT ARCHIVE SIDECAR CONTRIBUTORS SUBSCRIBE YOUR ACCOUNT REVIEWS Alexander Keyssar, Why Do We Still Have the Electoral College? Harvard University Press: Cambridge MA 2020 544 pp, 978 0 6746 6015 1 TOM MERTES APPOINTMENT BY THE PEOPLE? While Biden promotes his global summit on democracy, a majority of Americans think their own presidential-electoral system is seriously flawed. Opinion polls show that support for reform of the Electoral College has been running at between 60 and 80 per cent since the late 1960s. Indeed, as Alexander Keyssar documents in Why Do We Still Have the Electoral College?, criticism of the indirect mechanism inscribed in the Constitution began soon after its inception. Presidential elections mediated by state electors were ‘the most deplorable proofs of the imbecility of our system’, according to New Jersey Senator Mahlon Dickerson in 1819, while Virginian Congressman John Randolph called the process ‘a mockery, the shadow of a shade of an election’. Fifty years later, the Massachusetts Senator and abolitionist Charles Sumner denounced the Electoral College as ‘radically defective and unrepublican’, while Ohioan Congressman James Ashley thought it ‘violative of the democratic principle and dangerous to the peace and stability of the government’. Criticism only intensified in the 1960s, when Tennessee Senator Estes Kefauver called it ‘a loaded pistol pointed at our system of government’ and ‘a game of Russian roulette’. Nor was criticism confined to the margins. Jefferson, Madison and fellow framer of the Constitution Rufus King all called for reform, as did twentieth-century notables from both parties: Henry Cabot Lodge, Bob Dole, Gerald Ford, Hubert Humphrey, Edward Kennedy, lbj, Nixon and Carter. Indeed, numerous reform attempts were launched to amend Article ii, Section i of the Constitution, which sets out the procedure for choosing the us President. Over 500 amendments have been put forward in the last two centuries—all of them failed. The puzzle for a historian, as Keyssar notes, is to explain not change, but its absence: why, despite so many calling for it, has Congress been consistently incapable of abolishing or significantly amending this system? Professor of History and Social Policy at Harvard, Keyssar is best known for his widely acclaimed history of American suffrage, The Right to Vote (2000). Here he provides what will surely remain one of the most detailed and scholarly investigations into these serial attempts at reform, while also offering a thoughtful analysis of the many different reasons for their failure. This is, in the author’s summary, ‘a multilayered tale of idealism and dedication, missed opportunities, mistaken predictions, ingenious yet disingenuous values and partisan advantage, and as in so many dimensions of American life, the difficult-to-transcend legacy of slavery and racial discrimination.’ The fifty-plus delegates to the 1787 Philadelphia Convention—wealthy lawyers, landowners, half of them slaveholders—rapidly agreed on the need for a national executive branch, outlined its powers and settled upon the title for the chief executive. But they differed on how the President should be chosen. There were few contemporary models for republican heads of state, Keyssar points out, and the thirteen ex-colonies were still experimenting with different methods for choosing their own governors—appointment by the legislature, in most cases, though New York and Massachusetts had instituted popular elections, with limited suffrage. More importantly, they were divided on modes of representation. The small states claimed equal legal standing with giants like Virginia, Pennsylvania and New York; the latter insisted that representation should be proportional to population—which raised the question of whether the hundreds of thousands of African slaves in Virginia, Georgia and the Carolinas should count as part of their populations (all agreed Native Americans would be excluded). The Convention turned to the question of presidential election after delegates had agreed to their notorious compromise: equal state representation in the Senate and proportional representation in the House—one representative for each 40,000 inhabitants, with each slave counted as three-fifths of a person; a significant bonus in House seats for their powerful owners. These advantages for small states and for the South were then baked in to the process chosen for presidential elections. Further disputes pivoted on the balance of sovereignty between the executive and the states: those in favour of a strong executive, like Pennsylvania lawyer and land-speculator James Wilson, argued for a national popular vote, naturally with limited suffrage; proponents of state sovereignty and Southerners, benefitting from the three-fifths provision in Congress, refused to concede their advantage. They countered that voters would back someone from their own state, or be led astray by a demagogue. Madison, from a Virginia planter family, counselled compromise: ‘an appointment by electors chosen by the people’ rather than ‘an immediate appointment by the people’. The matter was handed to the Committee of Detail, which produced just that: an Electoral College, replicating the House–Senate agreement on the number of electors per state. The legislature of each state would determine how its electors were chosen. The electors would then meet in their state capitals on an appointed day to cast their votes for a presidential candidate. If there was no clear winner, the outcome would be settled by the House. The Electoral College was conceived, Keyssar argues, as a temporary replica of Congress. It introduced the possibility of a popular vote, but channelled it through the states—thereby carrying over the disproportionate congressional powers of small and slave states into the selection of the president. The latter eroded, slowly, after the 1964 Civil Rights Act; the Electoral College remains intact. Keyssar details three waves of reform agitation. The Electoral College was not an issue in the states’ debates around ratification of the Constitution, as he points out, because everyone knew Washington would be anointed the first President. But the problems of Article ii, Section i became apparent in the fiercely contested election of 1800, when the choice between Thomas Jefferson and Aaron Burr had to be decided by the House of Representatives. Gridlock ensued, with 35 rounds of tied votes before a deal was brokered. The experience shook whatever confidence had developed in the three prior elections. However, instead of correcting the electoral process as a whole, Congress merely voted to split the ballot between president and vice president in the Twelfth Amendment of 1804. Ironically, Keyssar points out, the experience of presidential elections helped to develop the proto-party system that the Constitution’s framers had hoped to avoid. As partisan polemics hardened between Northern Federalists, generally pro-British and supportive of Hamilton’s economic policy, and what Keyssar calls ‘less elite, more Southern’ Democratic-Republicans, more likely to be oriented towards revolutionary France, candidates came to be chosen by their faction’s congressional caucus and began campaigning across state lines. This also put a premium on factions winning control of state legislatures. It was during the short-lived ‘Era of Good Feelings’, with the Federalists in deep decline after the War of 1812 against Britain, that Congress came closest to sending an amendment to the Electoral College to the states. This would have devolved elector selection to district-level voting, with a potential for gerrymandering. The Senate passed four amendatory resolutions by the necessary two-thirds between 1813 and 1822. The House fell six votes short in 1821 of concurring with the Senate’s bill. The supermajorities required to amend the Constitution—two-thirds of both houses of Congress, plus ratification by three-quarters of the states—would continue to be a major impediment to reform. Instead, while most state legislatures had initially picked their electors themselves, they now began to institute a popular vote for presidential elections combined with a first-past-the-post ‘general ticket’ system (the winner takes all the state’s electors). Meanwhile the emergence of a new two-party system after the 1824 election also served to block reform. Each perceived the other as a ‘distrusted adversary’, posing a threat to its core values, whether these were expansionist or involved the defence of slavery. While reform amendments continued to be pushed, Congress failed to pass them, even with the support of the now-retired Madison. The party system, and the relative equilibrium and electoral stability it brought, would thus come to provide another bulwark for the Electoral College. The end of the Civil War marked the beginning of the second wave of reform attempts, with the parties split and the power of the planter class temporarily eclipsed. Yet, as many scholars have pointed out, while the Fourteenth Amendment eliminated the three-fifths compromise, it also increased the South’s political weight in Washington. Freedmen were now counted as full citizens (‘five-fifths’), increasing the state’s population for the purposes of congressional representation; but after 1877, they were almost totally disenfranchised. As Keyssar put it in The Right to Vote, ‘The legal reforms of the late nineteenth and early twentieth centuries created not just a single-party region but a class-segmented as well as racially exclusive polity’. This short second wave of attempts at democratization saw the critiques of Article ii by abolitionists like Sumner, noted above. However, despite close elections in the 1870s and 80s—including the fiasco of 1876, which produced a minority president—no resolutions made it to the floor of either house, thanks in part to rising partisan divides. Southern Democrats were particularly protective of their electoral privilege. Moreover, Congress was more focused on correcting rotten vote reporting and resolving electoral disputes, like that of 1876. Finally, there was little popular pressure for reform. Keyssar notes one harbinger, nevertheless, passed in April 1891 by a newly empowered Democratic majority in Michigan. The Miner Law instituted the first district elections (elector votes his district) since 1830, as opposed to the ‘general ticket’ used in most states at that time. However, Republicans, upon gaining a majority in the state house in 1896, repealed the law. (Since this turnabout, only Maine [1969] and Nebraska [1991] have seen fit to represent the votes of those who supported the losing candidate, and even in this case the states’ presidential ‘winner’ harvests two more electors.) During the Progressive Era and the New Deal, while rafts of important social and economic legislation was enacted, electoral reform was off the agenda. Republicans won seven out of nine presidential elections between 1896 and 1928, and dominated Congress; they had little motivation to undermine the winner-takes-all system. It was not until the late 1940s that reform proposals re-emerged. What marked the beginning of Keyssar’s ‘third wave’ was the onset of regional tensions within the two-party system. Southern Democrats rebelled against fdr’s pro-labour and (mildly) pro-civil rights war-time administration, and started their long divorce from the dp of the urban North, its political machinery supported by African Americans arriving in the large industrialized states from the Great Migration. In 1948, a Dixiecrat rebellion led by Strom Thurmond threatened to deprive the Electoral College of a clear winner, with the result that the presidency might once again be decided by the House. These developments catalysed a new bipartisan attempt at reform, put forward in the Senate by a liberal wasp Republican, Harvard-educated Henry Cabot Lodge, and in the House by a segregationist Texas Democrat, former farmboy Ed Gossett. The Lodge–Gossett proposal would maintain state-based presidential elections but would scrap the winner-takes-all ‘general ticket’ and allocate each state’s electoral votes in proportion to the popular vote tallies in that state. According to Keyssar, each saw different advantages in this shift to proportional representation. For Lodge, it would open up the one-party South, allowing Republicans to renew their historic links with African-American voters. For Gossett, the main targets were the large swing states of the industrial North, Illinois, Ohio, New York, where trade unions or black organizations could drive hard bargains with presidential candidates to tip the state: ‘There are enough Negroes in New York City, when voting in bloc, to determine often how the entire electoral vote of the State of New York is cast’, he complained, not to mention ‘the radical wing of organized labour’ and ‘our many fine Jewish citizens’. Lodge got his resolution through the Senate with a supermajority of 64 to 27, but Gossett’s attempt in the House was blocked by Northern Democrats, backed by African-American and labour groups. Keyssar cites John Aubrey Davis, Lincoln University political scientist and civil-rights leader, who told members of Congress ‘the only offset the Negro has had to disenfranchisement in the South and the southern filibuster has been his political influence in the Northern pivot states.’ With the Jim Crow South in mind, liberal Republican Clifford Case from New Jersey tabled an amendment calling for a state’s electoral vote to be reduced proportionately if ‘the number of persons actually voting is less than the number of citizens of voting age’. A red line had re-surfaced, Keyssar writes: ‘the partisan line-ups were no longer what they had been in 1890, but race remained at the heart of the impasse.’ Northern liberals, organized labour and the naacp thus emerged from the late 1940s as the main obstacle to reform of the Electoral College, recognizing that a system other than winner-takes-all would be damaging to their interests ‘as long as the South remained a one-party region’. The civil rights movement—most significantly, the 1965 Voting Rights Act—and the broader social and economic democratization of the 1960s brought about a sea-change in attitudes to the Electoral College. If ‘one man, one vote’ was the founding principle of us democracy, why shouldn’t it apply to the election of the President? Proposals for a national popular vote had been floated at the 1787 Constitutional Convention, but the two constituencies that stood to lose most by it—small states, white voters in former slave states—had always had sufficient power in the Senate to block it. Now it seemed the balance of forces in the country at large might be changing. The vra was already beginning to change the Southern political landscape; public opinion was heavily in favour of a national popular vote. In 1967, the American Bar Association came out with a strong report, damning the Electoral College. Nixon’s slim majority in 1968 kept up the pressure on Congress. In 1969, the House approved a national popular vote resolution by an enormous majority, 338 to 70, with support from both parties and most regions. The Southern Democrats were evenly split. Most of the opposition came from the Deep South and from the small Republican states of the Mountains and Plains. However, the same forces had the power to block the bill in the Senate the following year, with Thurmond, Eastland and Ervin playing a leading role. As Keyssar notes, three dozen senators, representing only 27 per cent of the population, ‘had closed the window on the twentieth century’s best opportunity to rid the nation of an institution that most citizens, and most political leaders, had come to regard as archaic, undemocratic, and dangerous.’ The promising circumstances of 1969—the party system in flux, the parties themselves divided, with bipartisan support for reform and a sense of public urgency about the need for democratization—have not recurred. The New South would take much longer to emerge—although, Keyssar notes, Thurmond would eventually be courting black voters. By then, party geography had been transformed by Nixon’s Southern strategy, on the one hand, and the latinization of California and deindustrialization of the Upper Midwest on the other. The resulting highly polarized stabilization of the party system is unpropitious. Democrats now have a formidable demographic advantage, but are incapable of really cashing it out electorally, while Republican small-state bunkers are heavily defended. The concluding sections of Why Do We Still Have the Electoral College? address the partisan atmosphere of the current era. National statesmanship rarely confronts systemic problems, whether political, economic or climatic. During this period, attempts to win either a district-level electoral vote or a national-popular one were consistently shot down by the party leaderships, whether at state or congressional-committee level. Keyssar examines the National Popular Vote Interstate Compact, a project founded in 2006 by John Koza, who made his fortune inventing scratch lottery cards. The npvic is a scheme to get the Electoral College to reflect the national popular vote while skirting around the difficult matter of constitutional amendments and Congress. The idea is that states retain electors but agree to pledge them to the candidate who wins a national majority (or plurality) of the popular vote. However, the Compact needs to achieve 270 pledged electors; it is currently at 196, and largely Democratic. Delaware is the only former slave state to join, and there are no solidly Republican states on board. Keyssar is not unsympathetic to the npvic, but makes clear that his own sympathies lie with a national popular vote. He canvasses questions about the Compact’s dubious constitutionality, its ‘moral unpalatability’ to voters, its winner-takes-all character, possible legal challenges and the problem of states withdrawing from it just before an election. Finally, Congress may intervene. The skilled Senate majority leader, Mitch McConnell, has vowed that ‘this absurd and dangerous concept’ needs to be ‘killed in the cradle before it grows up.’ This is a comprehensive and highly readable overview, packed with telling quotations. Inevitably, the focus is very much on Congress, with occasional references to newspaper editorials sprinkled throughout. Historical events, at home and abroad—Civil War, industrialization, Great Depression, Cold War—feature as so many noises-off. Keyssar’s tables of opinion-poll data, running from 1944, are helpful, but do not provide much of a picture of the role of popular pressure or external forces in these constitutional battles. Yet the Thirteenth, Fourteenth and Fifteenth Amendments, for example, were passed by Congress when Radical Republicans were at the peak of their power. Sumner received a petition of 100,000 signatures for the passage of the Thirteenth, delivered by two African Americans. Many of the Southern states were under Republican governments, occupied by Union forces, and facing heavy pressure from both houses of Congress to ratify the amendments at various points. Similarly, the Seventeenth Amendment, establishing the direct election of senators, was passed at a time of intense popular agitation, vividly evoked by the 1890s Populist platform—to say nothing of the vilification of the Senate as a club for millionaires and trusts. The Seventeenth Amendment also got support from many state legislatures because of their own inability to end interparty enmity, which deprived some of them of senatorial representation in the Progressive Era. Female suffrage required militant direct action. Cases can also be made that the Eighteenth Amendment (prohibition), the Twenty-First (repeal of prohibition), the Twenty-Fourth (outlawing poll taxes) and the Twenty-Sixth (enfranchisement of 18-year-olds) were responses to public pressure. While Keyssar points out repeatedly that many supporters of the Electoral College fear that its abolition threatens the two-party system, he has very little to say about the changing forms of the party system itself, although it is a major player in his story. What if the parties have become the major obstacle to further democratization? Nor does Keyssar investigate the status of the Constitution itself, though he quotes Mahlon Dickerson’s musing in 1819 that for many, ‘any attempt to alter it is a sort of political profanation’. As Daniel Lazare put it (nlr i/232), the cult of the Constitution does not shore up democracy and civil liberties ‘but, quite the contrary, weakens them by shielding America’s pre-modern, fundamentally irrational constitutional system from criticism and analysis.’ BACK TO ISSUE 126•Nov/Dec 2020 SHARE Facebook Twitter Email Download PDF BY THIS AUTHOR ‘Crash of 1837’ ‘War, Crash, Slump’ ‘American Duopoly’ ‘Whitewashing Jackson’ ‘A Republican Proletariat’ ‘Southern Discomfort’ ‘Grass-Roots Globalism’ ‘Light from Florida’ ‘Baffler in Boomtown’ ‘On No Logo’ ABOUT HISTORY NEWSLETTER ADVANCED SEARCH CONTACT SUBMISSIONS PRIVACY ACCESSIBILITY FOLLOW US TWITTER FACEBOOK RSS NEW LEFT REVIEW 6 MEARD STREET, LONDON W1F 0EG UNITED KINGDOM +44 (0)20 7734 8830 © NEW LEFT REVIEW LTD 2020