The 2016 presidential election is finally over. It appears that when all the votes are counted, Hillary Clinton will have received nearly a million more votes than her opponent, Donald Trump. Consequently, Mr. Trump will be the next President of the United States.
How does that work? Although the result is not what would be expected in a democracy, it is par for the course in the constitutional federal republic under which we operate in this country. When I am asked why that should be so, I generally reply that the answer is obvious from the words “par for the course.” The Framers of the Constitution were mostly good old boy politicians who got together on the golf course and had come to expect that the lowest score should win.
That explanation may be accepted by the average American; but I know that you, Dear Reader, are well above average. I know that you know that the first American golf course was not established in Savannah, Georgia, until 1794 – five years after the Constitution came into effect. Recognizing that, I will proffer a more detailed account. In doing so, I want to keep within certain space limitations and I do not intend to write an academic paper. There will be no footnotes and many of the statements will be general, though I will gladly provide references for anyone who feels they are necessary.
Under the United States Constitution, the selection of the President falls to the members (“Electors”) of what is known as the Electoral College (although that term is not used in the Constitution).
After the Revolutionary War, the new United States of America operated under the Articles of Confederation, which was a form of constitution agreed to by the original 13 states. It soon became clear that those Articles were deficient in many ways, and a new Constitutional Convention was convened in Philadelphia, Pennsylvania in May of 1787. By July that year, most of the basic elements for a federal government had been agreed upon and a committee was appointed to work out the details. One of the most important of those “details” was the office of the President.
The committee completed a draft document within a month and the delegates reassembled to finalize the process. Questions concerning the presidency were not easily resolved, however. Many wanted the president to be elected for a term of seven years, with no reelection permitted. Others proposed that the president be elected for life – essentially looking to replace King George III with President/King George the Washington. As for the manner of electing the president, it was generally agreed that either the Senate or both houses of Congress should do that. However, there was concern that president would then be too much under the control of the legislative branch, so others advocated election by the governors of the various states, and still others thought that the executive should be elected by popular vote of the people.
The matter was again referred to a committee, one chaired by David Brearley of New Jersey. It was that committee that proposed a group of Electors separate from Congress who would be chosen as determined by the various state governments. The number of electors allocated to each state would be the same as that state’s representation in Congress – that is, each would have two Electors, equivalent to its two senators, plus one Elector for each of its members of the House of Representatives. That was essentially the same as an election by Congress, with the benefit of the vote being made by a separate group of people. That compromise, as well as the committee’s recommendation that the president serve a four-year term, with the possibility of reelection, were adopted by the Convention in September of 1787.
Like with many other aspects of the Constitution, the issue of slavery was lurking beneath the surface in the decision of how the president would be elected. Two very important matters that had already been decided by the Constitutional Convention concerned taxation and legislative representation. It had been determined that each would be based upon the population of the different states.
There was a sub-issue, however, of how the large population of slaves would be considered in that apportionment. I say, “large population” because at that time more than a fifth of the people living in the United States – and more than a third of those living in the Southern states – were slaves. The Southerners felt that since the federal government would make laws affecting all of the people, the slave population should be recognized and represented in Congress. That representation would, of course be through slaves’ owners because although the slaves were people, they were legally treated as property and could not represent themselves. Nor, the Southerners argued, was it reasonable for mere property to be considered in allocating taxes. Thus, the South wanted to be allocated seats in Congress based on the inclusion of slaves in the population, but to exclude those slaves when considering the assessment of taxes.
Of course, the Northern states would not accept that reasoning, and it is likely that there would have been two nations formed had not a compromise been reached. That compromise, which is known as the “Three-Fifths Compromise,” was set forth in Article I, Section 2, Paragraph 3 of the Constitution, as follows:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
That provision has been modified by the 14th and 16th Amendments, but its effect was to give Southern states greater Congressional representation than they would otherwise have had, and that greater representation meant that they also received a greater number presidential Electors than they would otherwise have had. Both of those extra powers permitted the South to unduly influence the early development of the country and to assure mostly pro-slavery presidents up to the election of Abraham Lincoln.
Assuming that a goal of a democratic nation should be for the its president to be the person for whom most of the citizens vote, the Electoral College has produced fair to middling results. The United States has now had 58 presidential elections and in 18 of those elections – nearly a third – the “winner” received less than a majority of the popular vote.
In five of those elections, the person chosen by the Electoral College did not even have a plurality of the votes. In 1824, John Quincy Adams was elected even though he had received some 38,000 fewer votes than Andrew Jackson. In 1876, Rutherford B. Hayes was chosen even though Samuel Tilden received more than a quarter million more votes. In 1888, Grover Cleveland received nearly 100,000 more votes than Benjamin Harrison, who was named president. In 2000, Al Gore had more than half a million more votes than the “winner,” George W. Bush. And, of course, we have the 2016 election, which is where we began this essay.
What will be the future of the Electoral College? Who knows. After the 2000 election, newly-elected Senator Hillary Clinton promised to introduce a Constitutional amendment to do away with the Electoral College. She did not follow through on that promise. I hope she appreciates irony.
One of Donald Trump’s many infamous “tweets” is one from 2012 that said: “The electoral college is a disaster for a democracy.” He is now talking and tweeting out of another side of his mouth.
From time to time, various members of Congress have introduced resolutions to amend the Constitution and replace the electoral college with a simple popular vote to elect the president and vice-president. The most recent attempt was introduced by Sen. Barbara Boxer (D), of California, on November 15, 2016. None of the other attempts have received the needed support; we will have to wait and see if anything comes from Sen. Boxer’s efforts.
An alternative approach is the National Popular Vote Interstate Compact, under which the states would agree that their Electors would vote for the person receiving the most popular votes nationally, regardless of the results in the individual states. So far, that has been agreed to by 10 states and the District of Columbia. Part of the agreement, though, is that it will not be effective until joined by enough states to control 270 electoral votes (the amount needed to elect a president), and the current members have only 165. Again, we will have to wait and see if any other states wish to join the effort.
ADDENDUM: Since writing the above, I have done additional research and came across an interesting tidbit. One of the surviving documents from the Constitutional Convention shows that on September 15, 1787 – two days before the Constitution was signed – there was a gathering for which the delegates ordered 54 bottles of Madeira, 60 bottles of Claret, 8 bottles of whiskey, 8 bottles of cider, 12 bottles of beer, and 7 bowls of alcoholic punch. This was needed for 55 people. Perhaps that helps to explain the electoral college.