Two-and-a-Half Cheers for the Electoral College

Walter Berns

April 1, 2001

Andy Warhol once said that everyone has fifteen minutes of fame during a lifetime—or, at least, is entitled to fifteen minutes of fame. His began when he painted his picture of a box of Brillo, or of a can of Campbell’s tomato soup, and lasted for the rest of his life. Mine (such as it was) began on November 8, the day after the last election, and lasted for six weeks. During that period, I had at least a hundred telephone calls from reporters—mostly American, but a number of them foreign—with questions, generally “what if” questions, concerning the Electoral College.

For example, what if Florida is unable to appoint its 25 electors by December 18, the day electors meet in their various state capitals to cast their votes for president and vice president? Implicit in this question was another: would Al Gore then be president? The answer is yes. The Constitution (first in Article II, Section 2, and then in the 12th Amendment) says, “the person having the greatest number of votes for President, shall be the President, if such Number be a Majority of the whole Number of Electors appointed.” Not the whole number of electors (538) but the whole number of electors appointed (513, 538 minus 25). Leaving aside Florida, Gore had 268 electors, more than the required 257, a majority of the 513 electors. (As it happens, the Framers of the Constitution anticipated the failure of a state to act, and added the word “appointed” to meet that situation. See the convention debates for September 5, 1787.)

For another example, what if the choice of the president goes to the House of Representatives? Will it be the old or the new House that makes the choice? The answer is, the new House. According to the 20th Amendment, the terms of House members end at noon on January 3, and, under the relevant federal statute, electoral votes are counted on January 6. But what about the choice of a vice president? Under the Constitution, that decision is made by the Senate, the Senate seated on January 3, which, as it happens, consisted of 50 Democrats and 50 Republicans. Will Al Gore, as president of the Senate, be able to break the tie and vote for himself? Again, the answer is yes, because, under the 20th Amendment, the terms of president and vice president do not end until noon on January 20. But suppose the House cannot agree on a president, and the Senate on a vice president, what happens then? The answer is—see section 19 of the federal statute—the Speaker of the House of Representatives becomes acting president, provided he resigns as speaker and his seat in the House. But suppose—as is altogether likely, since his term as acting president would end as soon as a president or vice president is chosen—suppose he refuses to resign? Well, then, the president pro tempore of the Senate shall, “upon his resignation as President pro tempore and as Senator, act as President.” But suppose—and again it is altogether likely—he refuses to resign? Well, under the Presidential Succession Act, the Secretary of State shall act as president. But the Secretary of State, Madeleine Albright, is not eligible because she is not a natural born citizen. Well, then, the next in line, the Secretary of the Treasury, Larry Summers, and, if necessary, down the list of cabinet members until we reach the Secretary of Veterans Affairs (whose name, for some reason, I cannot recall). It is only after him that we would have a problem, and this is a problem that is not likely to arise.

I was asked these and other questions because, as the author, or editor, of a book entitled, After the People Vote, A Guide to the Electoral College, it was assumed that I knew the answers. What is important here is not that I knew the answers but, rather, that there are answers. This is important because succession to office, particularly the highest offices, should not be left to chance—for example, whether the wife of a monarch is able to produce an heir, or a male heir—or to the dictates of force; rather, it should be governed by rules, as in our case, by constitutional, statutory, and parliamentary rules governing almost every conceivable contingency. And this we have done. Thus, in my judgment, no one—at least, no friend of constitutional government—has reason to complain of the method by which this country chooses its presidents, not so long as these rules are followed.

But is it a rule that electors actually vote as they are expected, or in some cases, as they are pledged to vote? Constitutionally, they may vote as they please; indeed, the Electoral College was adopted with this in mind. Unlike the typical citizen in the late 18th century, who, it was assumed, would be likely to vote for someone from home, so to speak, someone from his own state, it was expected that the electors would be persons active in public affairs, and, therefore, would know the qualifications of persons from other states, and would vote accordingly.

But the situation quickly changed with the advent of political parties which, by nominating presidential candidates, took the original decision out of the hands of citizens and electors alike, and it was only after that that we began to speak of “faithless electors.” The term itself has no place in the Constitution as written; to speak of an elector as “faithless” suggests that the Constitutional rule has been superseded by custom, or more likely, by state law or political party rule, for example, laws or rules pledging an elector to vote for the candidate of his party. Hence, the question, a constitutional question: may electors be punished if they violate their pledges?

In 1952, a divided Supreme Court of the United States upheld the legality of a pledge required by a political party from candidates for the office of presidential elector; but the Court did not address the issue of whether a pledge required of an elector was legal and could be enforced. This, then, is a question for which, as yet, there is no answer.

But the issue arose as early as 1912 when, in Kansas, eight of the ten electors pledged to vote for the Republican candidate William Howard Taft, announced that, if elected, they intended to vote instead for Theodore Roosevelt. As one might expect, the Taft supporters went to court, and, after losing in the Kansas courts, petitioned the Supreme Court of the United States for a writ of error. The petition was considered by two of the justices—and never reached the Court as a whole; therefore, there is no record of the case, Marks v. Davis, in the Court’s official reports—and, after argument, they issued the writ. By doing so, they indicated that, in their judgment, the Court had jurisdiction in the case, which is to say, they decided that there was a federal question involved in it, that it was not solely a matter of state law. This is of some interest today because, last November, the Supreme Court took jurisdiction in the case of Bush v. Gore, and rendered a judgment that put an end to the Florida dispute. But, to return to Kansas, what about the issue of whether electors might vote as they please?

The two justices (Van Devanter and Pitney) had no reason to answer that question because, at the last moment, and I mean literally at the last moment, the Taft people succeeded in getting a slate of Taft electors on the ballot. In the event, the Roosevelt slate was elected, in Kansas, but Woodrow Wilson, the Democratic candidate, won the national election.

As it happens, there was one faithless elector last year, an elector in the District of Columbia who, instead of voting for Al Gore, as she was pledged to do, cast a blank ballot for president. But her vote had no effect on the outcome, other than making the final count, 270 for Bush and 267, rather than 268, for Gore. As we all know, this was a very close election, and might have gone the other way if three Bush electors could have been persuaded to switch to Gore. One prominent Democrat suggested that an effort be made to find such electors, but nothing came of this, either because no such effort was made or because no such electors could be found. But this sort of mischief—of electors being cajoled, or bribed, or blackmailed—remains a possibility, and it is this that accounts for the title of this lecture: two-and-a-half (not three) cheers for the Electoral College. We could make it three if, by amending the Constitution, the states were given electoral votes, rather than electors.

But its critics want more than that. Their complaints are familiar. The Electoral College, they say, is a “relic,” an “absurdly dangerous” method of selecting a president, one that threatens to “plunge the nation into political chaos.” The presumed danger is that a candidate might receive a majority of the electoral vote while receiving fewer popular votes than his or her opponent. They speak of this discrepancy as a “timebomb waiting to go off,” but the last time it did go off, in 1888, it proved to be a squib and nothing happened. There was hardly a ripple of popular discontent, no spate of editorials claiming that Benjamin Harrison was an illegitimate president, no complaints from the losing candidate, Grover Cleveland, that he had been cheated. Indeed, when asked by a reporter the day after the election to what he attributed his defeat, Cleveland smiled and said, “It was mainly because the other party got more votes.”

It was different this year. No sooner had the election results been reported—showing that Gore had won the popular vote but was likely to lose the electoral vote—when Al Gore’s campaign chairman claimed fraud, and Democrat Hillary Rodham Clinton, and even Arlen Specter, nominally a Republican, called for the abolition of the Electoral College in favor of a direct popular vote.

Now, one of the virtues of the Electoral College is, or was, that it regularly produces a president with a clear, immediate, and legitimate claim to the office, in part because it amplifies the margin of victory in the popular vote. In 1960, for example, John F. Kennedy won only 49.72 percent of the popular vote (as opposed to Richard Nixon’s 49.55 percent), but Kennedy’s margin in the Electoral College was 303-219. In 1968, for another example, Nixon won 43.42 percent, Hubert Humphrey 42.72 percent, and George Wallace 13.53 percent of the popular vote, but Nixon’s Electoral College margin was 301-191-46. This did not happen in last year’s election. Not only did our system not amplify the popular vote margin, but, for the first time since 1888, the candidate with a plurality of the popular vote did not win the electoral vote. In fact, the electoral vote was so close that we did not know, immediately, who was president; everything turned on Florida, where the popular vote was too close to call, and, as we all know, the outcome was not determined until the Supreme Court acted on December 12, six days before the electors were scheduled to meet in their state capitals to cast their votes.

Now, is there any reason to believe that the country would have been spared this situation, this uncertainty as to who was elected, if we had a system of direct popular election of the president? Before pursuing this subject, I want to say a few words in defense of the Supreme Court and its December 12 decision.

As you know, the Court was accused of interfering in a matter that was none of its business, that its decision to put an end to the vote recounts in Florida was both unprecedented and, because the recounts could have been completed in the time available, unnecessary; that it was nothing more than a decision rendered by Republican justices to ensure the election of a Republican president.

But consider what would have happened if the Court had not intervened. The recount would have continued, and, by counting all those “dimpled” ballots, Gore probably would have been declared the winner of the popular vote, and the Florida Supreme Court, which ordered the recount, would then have ordered the governor to certify a Gore slate of electors. But in the meantime, the Florida legislature had convened for the purpose of certifying a slate of Bush electors. So there could have been two slates of electors, and the Congress of the United States, meeting on January 6 in joint session, would have had to determine which slate was “regularly given.” It will not surprise you to learn there is a statutory rule governing even this situation. I quote from the statute:

“…[in case] of more than one return or paper purporting to be a return from a State…then those votes, and those only, shall be counted which the two Houses [i.e., the House of Representatives and the Senate] shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the state, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.”

(And suppose there are two slates, each certified by the executive of the State?)

All clear? Actually, yes. But clearer still is the probability of nasty partisan wrangling with the possibility of a delay in reaching a decision—and all this just two weeks before the new president, whoever he is, and his cabinet, whoever they are, are scheduled to take office! There was talk this year that the transition period, the time during which the new administration prepares to take office, was too brief. But suppose, instead of six weeks, it had been two? I don’t know if the Court had this in mind when it decided to intervene, but I suspect it did, and, in any case, we, Democrats and Republicans alike, should be grateful.

But, to return to that other matter. I asked earlier whether there is any reason to believe that the country would have been spared the Florida situation—meaning the delay and the uncertainty as to who was elected president—if, instead of by the Electoral College, presidents were selected by a direct popular vote. Under the present system, the delay and uncertainty were caused by the necessity to recount in Florida; we did not have to recount in Texas, New York, or California, to say nothing of Illinois, even though there is no reason to believe there were no dimpled ballots in Texas, or hanging chads in New York, or deliberate miscounts in Cook County, Illinois, where the Daley machine is still in power. Why not? Because the margin of victory for Bush in Texas, and for Gore in these other states, almost surely exceeded the number of miscounted, or uncounted, ballots. But under the alternative proposed, every vote, everywhere would matter, in a way they do not matter under the present system. And in any close election—and most of our presidential elections are very close—we would have reason to recount everywhere, not only in Florida.

This would plainly be the case with the system favored by the reformers. Under that system, the nation forms a single electoral district; the candidate with the most popular votes wins, provided he wins at least 40 percent of the votes cast; failing that, the plan calls for a runoff between the top two candidates. One national electoral district, and 180,000 local polling places, all equally important because, as I said, every vote everywhere matters. And not only the votes cast for one or the other major party candidates, but those cast for any of the minor party candidates. No longer could the argument be made that a vote cast for Ralph Nader, for example, or Pat Buchanan, or, 32 years earlier, for George Wallace, is a “wasted vote”; under the proposed system, there would be no such thing as a “wasted vote.” In 1968, the 4.1 million votes cast for Wallace outside the states he carried were “wasted,” because they gained him no electoral votes; but they would not have been wasted under a system of direct popular vote. Indeed, there probably would have been more such votes because, as I pointed out in our book, “Wallace watched his support fade from a high of 23 percent, in a September opinion survey, to an actual popular vote of 13.5 percent [in the November election], at least in part because of the wasted vote argument.” So, if not three, then at least two-and-a-half cheers for the Electoral College.

The critics of the Electoral College are unmoved by any of this. The present system is undemocratic, they say, and, so far as they are concerned, this is all that matters.

But have we really reached the point where the right to hold a public office depends solely on the suffrage of a popular majority? Are the friends of direct popular election really willing to say that a candidate with a constitutional but not a popular majority is an illegitimate president? Perhaps, but only if the moral authority of the Electoral College—indeed, of the Constitution itself—has been undermined by the persistent efforts to get rid of it, especially the efforts of members of Congress and what the British call the “chattering class.”

The Electoral College, they say, is a violation of the democratic principle of one man, one vote, and the majority rules. In fact, of course, the majority now rules, not necessarily nationally, but at the state level where (except in Maine and Nebraska) the popular votes are aggregated. As it happens, this is where the vote of any particular minority looms larger, or carries more weight, than it is likely to do in the country as a whole. So long as a minority is not evenly distributed throughout the country, it is in its interest to oppose direct popular elections; civil rights leaders used to understand this. And is there not something to be said for an electoral system that threatens to penalize a political party and its candidate for failing to respect the rights of respectable minorities? Furthermore, is there not something to be said for an electoral system that protects the interests of states as states, which is to say, a system with an element of federalism built into it? Only twice in the 20th Century (1960 and 1976) has the candidate with an Electoral College majority failed to win a majority of the states. (Bush, the Electoral College winner last year, won 30 of the 50 states.) And is there not, then, something to be said for a system that threatens to penalize sectional candidates?

The American idea of democracy cannot be expressed in the simple—simple but insidious—formula, the greatest good of the greatest number. What the greatest number regards as its greatest good might very well prove to be a curse to those not part of that number. The American idea of democracy, which is expressed in the Declaration of Independence and embodied in various provisions of the Constitution—the principle of representation in the Senate, for example, the district system in the House, as well as the Electoral College—is that government is instituted to secure the rights of all. To this end, we also have a Bill of Rights. Finally, what is constitutionalism if not a qualification of majoritarianism?

The men who founded this country surely recognized the entitlements of a popular majority, but, with an eye to the qualifications for or the qualities required of an office, they devised institutions—the Electoral College is one of them—that modify or qualify the majority principle. Nothing could be clearer than that the Founders sought institutions or ways—Alexis de Tocqueville called them “forms”—that would protect the country from what has come to be called populism. As I said, the organizing principle of the Senate is surely not majority rule, nor are its procedures simply democratic. Federal judges are not elected at all. They are appointed by the president, with the advice and consent of the Senate, and they serve for life. If legitimacy springs only from the principle of one man, one equally weighted vote, upon what meat do these our judicial Caesars feed? For that matter, if populism is our only principle, why should we have elections? Why not select all public officials by lot? This would be truly democratic, because it pays no attention whatever to the qualifications of office holders—or assumes that everyone is equally qualified.

In short, the issue that ought to engage our attention is the one the framers debated over the entire course of the constitutional convention, from May 1787 to September, namely, what way of election is more likely to produce a president with the qualities required of the person holding this great office? In all the years I have been engaged in this debate, in all the times I have testified on this issue before a House or Senate committee, I have yet to encounter a critic of the Electoral College who argues that a president chosen directly by the people is likely to be a better president. And that, surely, is the issue.

My argument was best made by an old and close friend, the late Professor Herbert Storing, when, in 1977, in testimony before the Subcommittee on the Constitution of the Senate Judiciary Committee, he said,

“To see the case for the present system of electing the president requires a shift in point of view from that usually taken by the critics [of the Electoral College]. They tend to view elections in terms of input—in terms of the right to vote, equal weight of votes, who in fact votes, and the like. The framers [of the Constitution] thought it at least as important to consider the outputof any electoral system. What kind of man does it bring to office? How will it affect the working of the political system? What is its bearing on the political character of the whole country?”

If, then, James Madison, Alexander Hamilton, James Wilson, Benjamin Franklin, Gouverneur Morris, and the rest, thought it important to consider output as well as input when designing the electoral system, I think that we today are obliged to do the same when considering proposals to amend it.

Walter Berns is a Professor Emeritus at Georgetown University, a Resident Scholar at the American Enterprise Institute and the author of After the People Vote, A Guide to the Electoral College (AEI Press, 1992) and the forthcoming book Making Patriots(University of Chicago Press, 2001). This article is from a lecture given at the Ashbrook Center on February 20, 2001.