Guest opinion. In the 2000 presidential election, there was disbelief and even outrage that a popular vote would not determine which new president would be elected. But the US Constitution, Art 2, Sec. 1 provides that voters can choose the president and vice president:
Each State shall appoint, in such manner as the Legislature thereof shall direct, a number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in Congress. . .
Then-First Lady, Senator-elect Hillary Rodham Clinton included in her acceptance speech her pledge to remove the Electoral College provision from the Constitution: “We are a very different country than we were 200 years ago, and I believe strongly in it that in a democracy we must respect the will of the people, and to me that means it’s time to abolish the Electoral College.”² Just this month, Democratic nominee for vice president, Minnesota Governor Tim Walz, said : “I think all of us know that the Electoral College has to go,” stating that “we need a national popular vote.”³
The Electoral College is intended to prevent power from being concentrated only in the large states and to give more balanced power to smaller states. This graph illustrates how this gives more voting rights to smaller states:
Why is the Electoral College so controversial?
Electing a president who does not win the popular vote will create controversy. The Electoral College provision of the U.S. Constitution has stirred controversy almost from the moment it was drafted.
This provision was used beginning with the first presidential election of 1789. Interestingly, eight electors from New York were not appointed in time, and two from Virginia and two from Maryland did not vote. Rhode Island and North Carolina did not send electors because they had not yet ratified the Constitution. This resulted in a total of twenty-four of the eighty-one electoral votes not being cast.
The Electoral College has determined the outcome of only two presidential elections prior to this millennium, with the popular vote yielding a different result. Rutherford B. Hayes was elected in 1876 and Benjamin Harrison was elected in 1888, neither of whom won the popular vote. President John Quincy Adams did not win the popular vote against Andrew Jackson in 1824, but because neither received a majority of the Electoral College votes, the decision fell to the House of Representatives, which elected Adams.
The Electoral College provision was changed by the Twelfth Amendment to the Constitution in 1804.
The idea of the Electoral College has been challenged by the American Bar Association as “archaic” and “ambiguous.”
Two constitutional amendments, proposed in 1997, included provisions on runoff elections if a candidate did not receive 40–50% of the vote, requiring a runoff between the top two candidates. Had these amendments been in effect in 1992, when Bill Clinton received less than 50% of the vote, a runoff election between Bill Clinton and George Bush would have occurred.
Madison’s Nightmare: Factionalism
Factionalism is “a number of citizens… united and actuated by a common impulse of passion… in conflict with the rights of other citizens.” Madison was concerned that these groups would expect their own interests to be satisfied at the expense of other interests; creating a threat to overwhelming minority interests. In The Federalist No. 10, Madison proposed two different approaches to solving the problem of factionalism. First remove its causes. But Madison explained that this would be “worse than the disease.” That is, the very foundation of our government would be threatened if groups were banned. As an alternative, Madison proposed controlling the effects of factionalism through a republican form of government.
In The Federalist No. 10, James Madison advocated the use of representatives in electing the president to prevent factionalism:
[T]o to refine and enlarge public views, by transmitting them through the medium of a chosen group of citizens, whose wisdom can best discern the true interests of their country, and whose patriotism and love of justice are least likely to sacrifice them to temporary or partial considerations. Under such an arrangement it may well happen that the public vote, expressed by the representatives of the people, will be more consistent with the public interest than when expressed by the people themselves, assembled for this purpose.
Madison believed that representatives were not considered more competent, but that the system of representation allows representatives with the duty to represent the people to determine the synergies and coordination of public policies. Madison calls the “public voice” through the representatives of the people “more consistent with the general interest” than if individuals were so assembled.
Madison’s faith in the people is further supported by his faith in the republican system, and not in the individual virtues of each representative, when he wrote, “It is vain to say that enlightened statesmen will be able to reconcile these conflicting interests.” and they all serve the common good. Enlightened statesmen will not always be at the helm.”
Although James Madison and Thomas Jefferson had a strong belief in federalism, they also supported the creation of the Electoral College. Alexander Hamilton strongly believed that representatives had more knowledge to choose a president and vice president than the masses, writing: “A small number of persons, selected by their fellow-citizens from the general mass, will most likely have the information and discernment necessary for such a complex investigation.”
Can the Electoral College stand the test of time?
Factionalism is controlled by a republic versus a pure democracy, and the Electoral College supports a republican form of government. Claims that the system is “archaic” do not address the need to structure government to avoid factions that leave smaller populations without a voice. Many believe the Electoral College is essential to give more voice to states with lower numbers of individual voters; and for the same reason some believe that this makes it unfair to the larger states.¹⁴ Some argue that the Electoral College was designed when only white, land-owning men could vote, and so it should be abolished. Yet we are able to amend this clause, as well as others, as civil rights have expanded and changed.
It is predictable that efforts to abolish the Electoral College will continue, but so far it has resisted change, and that could bring stability to the federal process.
To read more articles by Professor Sutton, visit: https://profvictoria.substack.com/
Professor Victoria Sutton (Lumbee) is a professor of law on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board of the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Native communities in the United States.
About the Author: “Levi \”Calm Before the Storm\” Rickert (Prairie Band Potawatomi Nation) is the founder, publisher and editor of Native News Online. Rickert was awarded the Best Column 2021 Native Media Award for the print category\/ online by the Native American Journalists Association. He is a member of the advisory board of the Multicultural Media Correspondents Association. He can be reached at levi@nativenewsonline.net.
Contact: levi@nativenewsonline.net
