Jack Rakove

Jack Rakove (Image credit: L.A. Cicero)

The President of the United States is not chosen through a national popular vote because the framers of the Constitution adopted the Electoral College, which gives each state as many votes as it has members of Congress.

The system was created as a middle ground in the debate over whether Congress or voters would have the power to elect the president. Today there is still support for electing the president by a national popular vote, eliminating the process of allocating electors among the states by rules that violate the principle of one person, one vote.

Stanford historian Jack Rakove is the author of the Pulitzer Prize winning book, Original Meanings: Politics and Ideas in the Making of the Constitution, in which he argues that originalism, the practice of interpreting the Constitution by a fixed set of the original framers’ intentions, should not be the only approach to settling today’s judicial questions.

Rakove shared his views about the contested Electoral College system.

In your view, is the Electoral College an effective system for modern politics?

I believe the existing system has two fundamental – I wish I could say fatal – flaws. One is that it violates the one person, one vote rule, which should be the proper rule of a modern democracy, because the addition of two electors to each state for its senators produces significant distortions in how much our individual vote is worth from state to state.

The second problem is the whole battleground state issue. Once we’re past the primaries, presidential campaigns are wholly preoccupied with the relatively small number of states that are actually competitive. But their competitiveness is just a demographic accident. There’s nothing special about them except that their populations happen to be fairly evenly divided from a sociological standpoint.

This problem would disappear if we had a truly national election with one electorate and votes counting the same wherever they were cast. Then the candidates would have to think more creatively about how to mobilize a national electorate, rather than pouring money into the televised advertisements that must drive voters in the battleground states completely bonkers. The parties would have the incentive to attract voters throughout the country, which is now a matter of complete indifference to them.

What problems were the framers of the Constitution hoping to solve with the Electoral College?

Their basic problem was that there was no obvious model of what a national republican executive would be. The dominant models of executive power in the 18th century were monarchical, or perhaps a king ruling with a clique of ministers, as in Britain.  Those were options the Americans had repudiated in 1776.  The most obvious alternative was to have the president elected by Congress. But the framers also wanted an executive who would be both independent of Congress and a check upon it. If Congress elected the president, you would have to limit him to a single term. Otherwise he might become the tool of a dominant congressional faction. But some framers thought that the promise of re-election would be a reward that presidents would want to earn – an incentive to good behavior.

Why did the Founding Fathers dismiss the popular vote model?

Two states, New York and Massachusetts, had popularly elected governors. That provided a precedent that some framers, notably James Wilson from Pennsylvania, thought the Convention should adopt. But there were two problems with this. One, as James Madison observed, was that it would work against the South.  If you truly had a popular election, the nation would be one big constituency, and the South would lose the advantage of the 3/5 clause and become a permanent minority.

That was one objection, but there was another one that was more important. Nearly everyone agreed that Washington would be the first president. But once he retired or died, the framers worried that a popular vote would then center on provincial candidates. Most voters would favor candidates from their own states, and it would become truly difficult to produce a popular majority with a field of favorite sons.

In all, five states changed their rules for appointing electors, which is a great story about how eager party politicians were to manipulate the Constitution.

Gallup polls from 1944 to 2004 indicate that the majority of the public would like to see the Electoral College abolished, yet there’s been only one failed effort to do so, in the early 1970s. Why haven’t there been more concerted movements to amend the process?

Americans in general have given up on the amendment process as a vehicle for constitutional reform. Now we simply assume that the small states would block any amendment because they believe they would lose influence in the election of a president. To me it’s deeply depressing that the country is incapable of having a serious discussion of what is obviously a flawed and in some senses undemocratic process.

My big hope in 2004 was that John Kerry would have carried Ohio, where a swing of 80,000 votes or so would have done the trick, and with it the election. Yet even had Kerry won the electoral vote, President Bush would still have had a big national majority in the popular vote. So, then if both the Democrats and Republicans had been adversely affected, I thought we might have a situation where the two parties would be willing to recognize the flaws in the Electoral College and think seriously about jointly supporting a national popular vote.

In viewing today’s political landscape, do you think the creators of the Electoral College would say it should be modified?

Actually, I do think that, for two reasons. First, the framers were experimental politicians, and they were open to the evidence of how things were operating. Second, they really had no good idea how the system would work. Many of them, like George Mason of Virginia, thought that 19 times out of 20, the electors would only work to identify leading candidates, and the House of Representatives, voting by states, would have to make the final choice. They also had no sense of who the electors would be, whether they would be men, as Mason observed, of the second or even the third rank of qualified voters.

As soon as you have the contested election in 1796, you discover that there actually were two identifiable candidates, representing two effective parties that would allow voters to make a decisive choice. Experience quickly demonstrated, in other words, that a popular vote would work, and the strange contrivance of appointing electors by rules that could shift from state to state and election to election was now superfluous.

What do you think about the National Popular Vote proposal to get states with the requisite 270 electoral vote majority to pledge their electors to whichever candidate commands a national plurality or majority?

I think it is a clever attempt to get around the onerous requirements for constitutional amendment, and I support the end result. But I really doubt that it would work in practice. The Constitution includes a clause requiring interstate compacts to have congressional approval, and I just don’t see how this one would escape congressional scrutiny, and thus bring us back to the whole question of getting an Article V amendment.