Episode 2: What's the Deal With the Electoral College?

What exactly is the Electoral College? Alexander Keyssar from Harvard and Oscar Pocasangre from New America break down the history and future of the system we use to elect our presidents.

Transcript:

SCOTUS Audio Mr. Chief Justice and may it please the Court.

Shannon Lynch What you're hearing is audio from oral arguments in Chiafalo v Washington, a 2020 landmark Supreme Court case.

SCOTUS Audio The question in these cases is straightforward. Do the states have the power to control through law how an elector may vote?

Shannon Lynch The petitioners in this case did something exceedingly rare. They presented arguments to the Supreme Court advocating for reform of the Electoral College. In fact, this is so rare, the words "Electoral College" have only appeared 23 times in the thousands of opinions written by the Supreme Court since 1790.

But here's the thing. According to the National Archives, there have been more proposals for constitutional amendments aimed at reforming the Electoral College than on any other subject. More than 700 attempts have been made to dismantle the process. And polling from PEW shows almost two thirds of Americans favor abolishing it altogether. So why do we still have this massively unpopular system and why has it proven so resistant to change? Why was the Electoral College created in the first place and how has it shaped the way we choose our presidents?

Welcome to Democracy Deciphered the podcast where we analyze the history, present, and future of American democracy. I'm your host, Shannon Lynch, and today we are diving into the Electoral College, a system that, despite its controversies, has shaped U.S. elections for over two centuries. I'm excited to be joined today by two incredible experts.

First, we have Alexander Cassar, a professor of history and social policy at Harvard. Alex's work has long focused on historical problems with deep contemporary policy implications. His latest book, Why Do We Still Have the Electoral College, published by Harvard University Press, takes a deep dive into the origins and ongoing relevance of this controversial system.

Also with us today is Oscar Casagrande, senior data analyst for the political reform program at New America. Focus on Gray holds a Ph.D. in political science from Columbia University, where he focused on comparative politics and quantitative methods.

Oscar, Alex, thanks for being here today.

Oscar Pocasangre Thank you for having me.

Alex Keyssar It's a pleasure to join you.

Shannon Lynch So to start, what is the Electoral College?

Alex Keyssar The Electoral College is a name that we gave to a presidential election system. The term Electoral College does not appear in the US Constitution and in fact it doesn't become commonly used until the 20th century. So the late 19th, early 20th century to describe this rather complicated system for choosing a president that was designed by the framers of the Constitution. Basically, it is a system that chooses a president of the United States in the first instance by electoral votes. And the electoral votes are given to states based on the number of members they have in the House of Representatives, plus two for their senators. That's how electoral votes are allocated to the states. The states have the right to decide how those electors are chosen, whether by popular election or by having the state legislature choose the electors. And the states also have the right to decide about whether it will be winner take all, which we are very used to, or by district or some other system. After the election is held and after the electoral tallies are certified in the States at a meeting of each state's electors. And those meetings in the 19th century were called the meetings of the electoral colleges. The results of that are forwarded to a joint session of Congress where they are accepted or not accepted and certified. And the president is the person who gets the most votes and who also has a majority of the electoral vote. You have to have a majority in order to be elected. If you do not have a majority, then the election reverts to the House of Representatives to choose among the top vote getters. And in the House of Representatives, each state, regardless of its size, gets only one vote. In that instance, though, it has happened twice in American history. That's how the president is chosen through the contingent election system. It is not a simple and straightforward system.

Oscar Pocasangre Alex, and one thing I learned from your book about the Electoral College is that at the time, the framers expected contingent elections to be quite common. Exactly. Exactly. I mean, they you know, I mean, one of the things we have to bear in mind about the vote, when this was done, there were no political parties in 1787 and everybody disapproved of political parties. So the. A notion that's embedded in our heads of a two party system and that there would be two candidates and only two candidates. That's a leader invention. They often assumed that there would be 3 or 4 or 5 or 6 candidates, and it'd be unlikely that anybody would get a majority.

Shannon Lynch Okay, so now we know what the Electoral College is, but why was it created in the first place?

Oscar Pocasangre Well, there are many reasons. One is that it was a compromise between the states, between usually that the story here is between the small states and the big states, the slave holding states and the states that didn't have slavery to ensure that all the states had equal voice in the election of the executive. Another reason, I would say is also that it was an innovation. Up to that point, no democracy had yet figure out how to independently elect an executive. There were models, the previous models where either a king was divinely appointed or the king appointed an executive leader like a prime minister, or took power by force. But this idea of having a democracy choose an executive independent from the legislature was something that the framers were trying to figure out. And at the time, they figured out that the Electoral College was the best way to go, given all the different interests that the framers had in trying to take into account all the different demands from the different states.

Alex Keyssar And picking up on Oscar's comments in the course of the summer in 1787 during the Constitutional Convention. The default position in a lot of ways was to have Congress choose the president. And when they took straw votes, that was the idea that had the most support. But then afterwards, people would scratch their heads and say, you know, that's really not a good idea. There's a there's no separation of powers and the president is dependent on the Congress. And then they'd go back to scratching their heads and coming up with a gazillion different ideas that are put forward in the course of the summer. And eventually they landed on the Electoral College or what we call the Electoral College. It should be said also, I think I think adding a human dimension, the nature of these deliberations, I mean, the founding fathers were very talented people and they were working very hard. But they had by the end of August, they had been in Philadelphia for three months, working pretty much every day. If you've ever been in Philadelphia in late August, it's it's kind of hot and humid. People were tired and they decided to go on a vacation for a week. And they left behind a committee to try to deal with the things they had not resolved. That was called the Committee on Unfinished Parts. And it was that committee that came up with this idea of having electors and having the system that that we know still today.

Oscar Pocasangre I'll just add to that, that from our perspective now and you know, it's funny, it's 21st century now that the Constitution has taken this almost sacred state status in American society. We think of the Electoral College as this is an amazing innovation coming from a deep well of wisdom. But like Alex was saying, at the end of the day, there are humans who are designing this institution, humans who are tired after months of deliberation and the hot summer of Philadelphia. So I think it's important to to remember that even at the time, they did not think that this was a perfect institution. They were expecting it to have problems. And it was also correct me if I'm wrong, Alex, but it was not the main focus when they were drafting the Constitution because people were expecting George Washington to be president. So they were saying, okay, well, we'll figure it out anyways and like George Washington will be president anyway, so things will be fine and then we'll fix it.

Alex Keyssar Yeah, no, that's exactly right. I mean, you know, they knew Washington was going to be president anyway, so it wasn't going to have any immediate effect. And there were even comments there. Well, you know, we left the provision for amendment in the Constitution so that we can fix this and make it better. But I think if you had told the framers of the Constitution about whether the system of electing presidents was their best work, they probably would have said no.

Shannon Lynch Got it. Okay. So how did the framers differ in their opinions on how the president should be elected?

Alex Keyssar Well, there was this group that basically thought that the Congress should choose the president, and that was partly out of default, thought they weren't quite sure how else to do it. But it also reflected a somewhat different conception of what the executive was. There was a conception that the executive was a person or the office that carried out the wishes of the legislature, and it was not in that sense an independent branch. It was in some in the minds of some people it was a fairly dependent branch. But so there were a number of people who thought that there were people who spoke out in favor of a national popular vote. There was a large handful of folks who did that. One of whom was James Madison who? Definitely thought the Congress should not like the president, and he thought that anything else was going to kind of be complicated and cumbersome and not very Republican. Now, he was aware and we'll probably get into this, that having a national popular vote might diminish the power of the slave cells. It will be unpopular in the South. And he addressed that explicitly and said that he thought that people from his region might oppose it, but even that he as a Virginian and as a state, Boehner favored it nonetheless. But then they they also tried. There was a proposal to have the governors of the states choose and then to have sort of randomly chosen electors. There are a lot of creative ideas that appear in the course of the summer, but none of them really gains much backing.

Shannon Lynch So you alluded to this already a little bit, but how did slavery play into the creation of the Electoral College?

Alex Keyssar One of the things we have to realize is that the big fight over slavery had already happened in the Constitutional Convention before they got to talking about the Electoral College and choosing a president. I mean, that was one of the two big compromises that was made at the Constitutional Convention over representation in Congress. One and Oscar sketch. This one was about small states and large states. And the question was whether your representation in Congress would be proportional to population or whether every state, regardless of its size, would get the same representation. They fudged that by creating a bicameral legislature, one of which had one principal and one of which the other. So that was one compromise. The second issue was whether slaves would count as people as inhabitants for the purposes of representation, basically in the House of Representatives. And many in the North thought that slaves should not count, that all Southerners thought that they should count entirely. And what they reached was the historically ignominious conclusion that states would count 3/5 of a person for representation. So what that did was to increase the representation in Congress in the South beyond what it would have been if only white citizens were able to vote. Now, that had already been resolved, but the issue of what was going to happen with slavery and slave states will be lurking there also as they chose, as they figured out a way to choose a president. I mean, if you have a national popular vote, then it's only voters who are voting. So what the framers did with the I mean, one of the clever features of the Electoral College was that they imported the compromise about slavery that they had already reached about representation. They imported it into the presidential election system via this system of electors so that the number of electoral votes you got was was proportional to the number of seats you you had, and that had already been decided. So imported and reinforced this decision to grant extra power to white Southerners in the name of their slaves.

Oscar Pocasangre I'll just add to that, that the 3/5 compromise that had already been decided before the Electoral College had been decided. As Alex was saying, almost precluded the idea of having a national popular vote because the South and the Southern states would lose that extra influence that they had by virtue of being slave holding states. And, you know, once you get some political power, it's very hard to give that up. So the idea of having citizens at that time as white, male, landowning or taxpaying citizens vote, it would mean that the Southern states would lose a lot of their influence.

Shannon Lynch How has the Electoral College changed over time, over the course of American history?

Alex Keyssar The remarkable thing is that it has changed relatively little. And, you know, despite drastic changes in the, you know, in the country, I mean, we're talking about a country of a few million people hugging the Eastern seaboard to what we've seen now. The two biggest changes that have occurred and they take place really between the 1790s and the 1830s is one is that all states did begin to have popular elections for president in the 1790 and the early 1800s and even lingering on for a couple of decades in many states. And it varied from election to election. There were not popular elections for president. The legislature chose the electors and in effect decided upon the state was going to support as late as 1824. And New York did not have a popular election. And there was a lot of political games playing going on in that and in the switches back and forth. By the 1830s, pretty much everybody was having a popular election. And the exception at that point was South Carolina, where the legislature continued to choose electors until just before the Civil War. The second switch was that winner take all was adopted as the common and almost default method of allocating electors. I mean, that's again, that's the system that we have today. But there were a lot of states that were using district systems of one sort or another, and there was a very strong movement, a national movement between 1810 and the late 1820s to pass a constitutional amendment to require states to use a district system. James Madison, among others, supported that. He thought that winner take all was a that was really a catastrophe and that the constitutional amendments to mandate districts came up before Congress a bunch of times. And in 1821, I think for something within a year or two of that became extremely close to passing. It passed the Senate and failed narrowly in the House. And then by the 1830s, after that battle had been fought and lost, winner take all became pretty much the default position Again, although there have been states periodically that have reverted to districts.

Oscar Pocasangre I'll add that one amendment that they passed to reform some aspects of the Electoral College was the 12th Amendment. So two decades after the ratification, the election of 1800, I believe, already showed the cracks of the institution of the Electoral College, where at the time the electors didn't have to distinguish their vote between the president and the vice president. And that meant that in that election of 1800, two candidates from the same faction basically got to a tie and there was a contingent election in which Congress, which is led by. Members from a different faction had to decide who the president was. So that was a very tricky situation. And that sparked the need for this Tarp amendment, which specified that there had to be a distinction between the president and the vice president when the Electoral College members cast their votes. In part, that's because the Electoral College, when it was first created, did not anticipate the idea of a strong faction. What we know now as parties, as political parties, that people would organize into these different factions in Congress and in American politics. And it's notable that it happened very quickly. You know, they created this system not imagining parties that by 1800 parties were operating in the 12th Amendment, as Oscar very rightly points out. They do make a constitutional change that in effect, sanctions, party tickets.

Shannon Lynch Can we go over the few times that it's happened in American history that the person that won the Electoral College differed from the winner of the popular vote? And what were the ramifications of that when it happened?

Oscar Pocasangre So it's happened five times. Most recently, we now in 2016 and the election between Donald Trump and Hillary Clinton before that in the year 2000, Bush versus Gore. Up till 2000 hadn't happened since the 1800s. So 1824, Jackson versus Adams, 1876, Tilden versus Hayes and 1888 Harrison versus Cleveland. And there have also been near misses. There have been elections. And people thought that we were going to have this wrong winner. So the winner that didn't win the popular vote and in all these instances when we had a reversion or the Electoral College winner is not the winner of the national popular vote. There's always been a lot of talk of reform and of fixing the Electoral College. Of passing an amendment or doing something that would create a more democratic institution. But in all these instances, no big reform has emerged from these wrong winner elections.

Alex Keyssar The only supplement that I would add to that is that in two of the five instances I think we would want to have in the great tradition of baseball statistics, asterisks attached to the popular vote totals in 1824. I mean, yes, Andrew Jackson did get more votes than John Quincy Adams by a fair amount. But since there weren't popular elections in some states, we don't quite know how to interpret that. There wasn't a national popular vote tally that included all states. And in 1876, when Rutherford Hayes became president, as a result of a deal after a deadlocked election, I mean, it was it was a deal against Samuel Tilden. And Tilden did get more popular votes than Hayes. That's true. But it's also true that there was significant voter suppression of Republicans in the South so that those totals could also be challenged if there were an enterprising election denier that wanted to challenge the national vote totals.

Shannon Lynch So let's say theoretically there is going to be a presidential election tomorrow. Can you walk me through how the Electoral College works today?

Alex Keyssar Sure. For one thing, the electors in most states have already been chosen by the parties. They're chosen by parties. So their slate of electors chosen by party. Their role today, before the election tomorrow is they have no role. They don't do anything. Nobody knows who they are. And they really become operative Only after the election. After the election in each state is certified, the electors gather in their state capitals and they cast their votes. And those votes are recorded and then sent down to Washington. I mean, basically, basically they they are messengers. They although in the original conception of the Electoral College in the late 18th century, they were imagined to be people who deliberated. It became very quickly the case that they were simply messengers and that's what they were now.

Oscar Pocasangre Right. And then once those votes arrive to Congress and those mahogany boxes, even in Congress, then Congress in a joint session certifies the votes and certifies the election. And after what happened in January 6th and the attempts in 2021 and the attempts to overturn the election, there were some reforms to make sure that these steps are simply procedural and just like a rubber stamping to prevent, to the extent possible, a repeat of what happened then. 2021. It should be something that is just carried out as stated, and there shouldn't be that opportunity to mess up with the votes.

Shannon Lynch What were some of those changes that were put in place to, like you said, just make it more procedural?

Alex Keyssar For one thing, it made very explicit that the role of the vice president was purely kind of managerial, that he wasn't to judge the electoral votes turned in by the states, but basically he was to count them in the right that his role was ceremonial. The second thing was that it significantly increased the number of states that had to object to another state's report of its electoral votes in order for there to be a challenge that had to be considered by the House. It had been the rule that if you had if there was a challenge from one member of the Senate or one member of the House, then that would compel the chambers to meet separately and decide what they wanted to do about the challenge. The revision to the law made that much more difficult.

Shannon Lynch What are some of the arguments for keeping the Electoral College and what are some of the arguments for abolishing it?

Alex Keyssar Oscar, you can do the keeping part.

Alex Keyssar That's the hardest part. But I struggle with finding or coming up with an argument to keep the Electoral College based on any understanding of democracy, of a representative democracy, and that it violates this idea of one person, one vote of equal representation. I think perhaps the only Democratic argument for it is that it's an institution. So it's the rules of the games that we have been decided. And as long as we all agree on the rules of the game, that's fine. The problem is that we today have not agreed to those rules of the game, and it's really hard to change and amend those rules of the game. I would say arguments to keep it only because it's there by inertia, but that's not a good argument to keep such an important institution that is in charge of electing the president of the United States. So for me, I think there's there's no way to justify it based on any Democratic theory to keep the Electoral College. I know a lot of people argue about protecting small states, but if you look today, what are the states that matter the most and the Electoral College? It's not the small states like what does Wyoming or Rhode Island benefit from having an Electoral College? They don't practically do. Most of the attention is focused on swing states. This year, in this electoral cycle, states like Pennsylvania, Michigan, Nevada and Georgia and not in the rest of the country. So I think this idea that they would protect small states is also not a good argument for keeping it.

Alex Keyssar Again, to just add to Oscar's absolutely apt comments, but I mean, there, you know, there is one kind of defense. This may well, it's the wisdom of the founding fathers and we shouldn't violate the wisdom of the founding fathers. And I think close knowledge of the history suggests that the founding fathers and so. We're ready to change the institution within 20 years. And then there are these claims that I think Oscar got this quite right. There are a number of these claims about it protecting the interests of people in small states. And which and these those claims sound plausible on the surface, but empirically, it doesn't really seem to be true. I mean, small states don't get particularly the number of visits. I mean, even rural states don't get visits from candidates. They don't get more advertising. As Oscar said, the states to get attention are these are the states that are closely contested. There are claims that are made in the Electoral College that are not really empirically defensible. And the core fact is, you know, switching to the flip side of the question, is that the Electoral College as it operates does not conform with basic democratic principles of one person, one vote, and all votes should count equally. I mean, that is what we think democracy is that my vote and your vote count the same and the Electoral College as it's now constructed does not do that. And also the combination of winner take all and the structure of state electoral system says produced election campaigns that are that are deformed and that are not national and that are focused on swing states. And that means that the population in roughly 80% of the country is ignored.

Shannon Lynch In this argument to abolish it. What have been some of the changes that have been proposed that would replace the Electoral College as a system.

Oscar Pocasangre Since the Constitution was ratified, there have been amendments after amendment to try to change it. I think it's an aspect of the Constitution that most wants to be amended, but for some reason it hasn't happened quite yet. The changes that people have proposed to the Electoral College are about how the state allocates its electoral College votes, whether it's done in the district system or proportionally, where the legislature appoints them. Most recently, there has been a lot of movement to maybe allocate all those votes proportionally, and that seems to maybe make votes count a bit more equally where the district based approach, which basically you would elect your electors by district within each state. That would just bring gerrymandering to the extreme at the national level. I mean, that is not something that I would recommend or well functioning politics. The biggest change that has gained the most traction recently is this idea of the Interstate Compact for the National Popular Vote, which is an agreement between states that if a candidate wins the national popular vote, they will assign their Electoral College votes to that candidate to the winner of the national popular vote. So this is one way of getting around the lot of the problems of the Electoral College. But at the same time, it introduces other problems with the solution in that it's not clear whether it's finding whether states can, Renee, and not want to give their Electoral College votes to the winner of the national popular vote. And it's also an unstable system because states can come in and out of that compact. And it would also have to change every ten years. One, because of the census and redistricting, the number of electoral college votes would change. So maybe the states that keep the compact, but maybe they lose the number of votes, it would change the the agreements, the arrangements.

Alex Keyssar I agree with Oscar's sketching out. I mean, I think that the other idea which which he didn't mention, but what really looms very large out there is to have a national popular vote. And a lot of people are in favor of that. And it needs to be said, maybe we should talk about it or maybe not. But that the United States came extremely close to abolishing the Electoral College and adopting a national popular vote. In 1969 70, a constitutional amendment passed the House of Representatives by the requisite two thirds majority. And then it was a year later killed by a filibuster in the Senate. So there has been a lot of support for that idea. The idea of doing it by districts has been around for a long time. But Oscar's absolutely right that to allocate electors by districts means to introduce the problem of gerrymandering it through presidential elections. And our challenge is to get rid of gerrymandering, not not to expand its application of proportional system, where if you win 53% of the vote in Wisconsin, you get 53% of the electoral vote seems more attractive and probably easier to get passed than a national popular vote, in part because it would protect the small states and the National Popular Vote Interstate Compact, which has been organizing for about 15 years with very substantial success, although it's not quite over the hump. I mean, I think at its heart it's a way to change the system without having to get the requisite two thirds majorities that you need to have to amend the Constitution, which is politically easier, but it's not sure that it is politically feasible either. And then there are the problems that Oscar alluded to as well. There are a number of critics, including myself, who think the compact does identify the problem, but that in and of itself, it's not the solution.

Oscar Pocasangre And with the national popular vote, I will add that that for me seems an obvious solution initially. I mean, that is how most of the world that has a presidential system, Alexis president with a national popular vote and then there are provisions for a runoff election in some cases. One big problem for the United States, I don't think it's it should be the end all, but I think it's a problem to consider is that each state in the United States decides how the elections are carried out and they have control over how people vote. So how you vote in New York is different from how you vote in Texas or in Georgia. There are different restrictions to how you vote, so your voting experience is different from state to state. The state then counts those votes. So for a national popular vote, we would need some sort of national institution to make sure that there is a standard for voting across the country so that, yes, we have one vote, one person, but that the voting experience is also equal for all Americans. And to make sure that the rules are not being changed from election to election. And I think that's definitely a conversation worth having. I know some people resist to the idea of having a national electoral institution that could enforce a lot of these rules. But I think it's worth thinking how that would work in terms of carrying out a national election.

Shannon Lynch Great. Is there anything that I didn't ask about that you think would be really important to go over for someone's understanding of either the history of the Electoral College or the future of it?

Oscar Pocasangre I would say that maybe thinking of how the Electoral College fits in with other reforms that are being discussed can help understand the future of the Electoral College. For instance, there's a lot of interest right now and a lot of movement for ranked choice voting, where you rank your candidates and ensure that the majority support a candidate wins. And actually two states in the cycle will use ranked choice voting or selecting the winner in the state, Alaska and Maine. Maybe that's one avenue that does require a constitutional amendment for improving some aspects of the Electoral College. There are other aspects like how we elect Congress that doesn't require constitutional amendments. I wonder if maybe reforms in Congress can blunt some of the negative effects of the Electoral College, which is such a hard thing to change.

Oscar Pocasangre The only additional comments I would make, Shannon, is that I think that the history tells us several things. It tells us that the Electoral College has for a very long time been unpopular. Certainly as long as we have public opinion polls, which is back to the 1940, a majority of the population would like to get rid of it. And dissatisfaction goes back to the early 19th century. I mean, this was an institution that was kind of unpopular about 15 minutes after it was adopted. And history tells us that it is very difficult to change because, as is true under any electoral system, constituencies build up to think that they have perceived that they have an interest in maintaining the system. So that certainly the long history says that it's difficult to change. But I think, again, not impossible. There have been, I think 5 or 6 occasions in which one branch of Congress has passed a constitutional amendment to change it and two occasions in the early 1820s and then again in 1970 when it came close to passing both branches of Congress. So I don't think that people, maybe especially young people looking at this, should think, you know, one can only be pessimistic. Nothing can change. The historical record tells us that it's not going to be easy to change, but I think it suggests that it's not impossible either. And one more thing that the historical record shows, and I think it's important to highlight during a year in a time of history where there's so much political polarization, is that we don't really know what party will benefit of changes to the Electoral College in the long term. That has changed over time. People will say if it's national popular vote, maybe Democrats would benefit or Republicans, then that might be a big impediment for reform. But I think if you base our reforms in college based on a democratic theory of one person, one vote, we don't know, 50, 100 years from now what parties will be there, what factions will be there, what their issues will be about. You know, back when there was a reform for the Electoral College, one concern and an impetus for reform at that time was that New York was the swing state and people were concerned that the communists in New York would be the swing voters. And things have changed since then. So I think it's hard to predict what the future will be. History is a great guide for that, for sure. But we're in uncharted territory in many regards right now. So I think if we base our reforms simply based on the democratic ideal, that each person's vote should count equally and that should be enough. And of course, politics and partizanship gets in the way, but I think it's surmountable.

Shannon Lynch Perfect. Well, thank you so much to both of you for being here.

Oscar Pocasangre Thank you. Thank you, Shannon.

Shannon Lynch And to all of you listening, thank you for being part of Democracy Deciphered. If you enjoyed today's episode, don't forget to share it and be sure to subscribe so you don't miss our next episode. We've got plenty more to unpack, so stay tuned and join us again as we continue to explore the complexities of American democracy.

Heidi Lewis This was a New America Studios production. Shannon Lynch is our host and executive producer. Our co-producers are Joe Wilkes, David Lanham and Carly Anderson. Social Media by Maika Moulite. Visuals by Alex Briñas. Media outreach by me, Heidi Lewis. Please rate review and subscribe to Democracy Deciphered wherever you like to listen.