No matter how the U.S. Supreme Court rules on the current constitutional controversy over voting by electors in the Electoral College, members of that body will meet in their own states next December to cast crucial votes for the presidency. The Court has not been asked to strike down the College.
Only in a fairly loose sense, however, will the outcome in the College truly reflect the political will of the nation, when judged by how representative the College is, or is not. That is a rather harsh judgment; why might that be so? It flows from a shared problem in the makeup of both the U.S. Senate and the Electoral College, a problem dating back to the founding era.
Looking first at the Senate and then at the College, the problem of representation begins to emerge. Under the Constitution, the Senate was designed explicitly not to be a truly representative part of the national government, even though it shares half of the power to enact laws with the far more representative House.
Each state gets two Senators, regardless of population; the House is supposed to reflect states’ population variations, although gerrymandering can compromise how representative it truly is.
What about the Electoral College, the place where presidential elections are actually decided? Each state gets two guaranteed votes in the College to reflect its guaranteed two seats in the Senate and each state gets at least a guaranteed third College vote, however small that state may be.
With those considerations in mind, consider this odd fact: at the Supreme Court’s hearings last week on the Electoral College, not one of the Justices seemed worried about how under-representative the College is, even though there was much talk about the need for the electors to respect the votes cast by the people. (Neither was there any expressed concern about the makeup of the Senate, despite how that links to the College’s membership.)
Consider a further point, which seems like a constitutional reality but may be debatable: the Constitution makes it extremely difficult to change the makeup of the College so that it would be more representative, and also makes it even more difficult (maybe close to impossible) to change the Senate itself in that way.
American history shows that the chosen arrangement of imperfect representation originated even before the Constitution was written and, in fact, was widely regarded as a positive virtue back then. It is not necessary to focus on what members of the founding generation (like Alexander Hamilton, for example) wrote about the College after the Constitution had been completed at the convention in Philadelphia, when some leaders were trying to get the document ratified.
The pre-Philadelphia history being what it clearly was, the nation today would almost literally have to compose a new story to support the idea that the founders actually wanted to create national institutions that would mimic the political preferences of the nation’s voters. Quite the contrary.
Although Americans routinely see themselves as participants in a democracy, they actually aren’t, and were never intended to have that form of government. The Founders explicitly opted for a republic, not a democracy; a republic is based on governing by representatives of the people, a democracy has the people governing themselves (as in New England town meetings and in ancient Athens).
It makes a profound difference, though, just how a republic is put together, and, in particular, how representatives are chosen. We know, from the written record of the 1780s, that those who went to Philadelphia, with the aim of exploring the creation of a new national government, carried with them a strong inclination toward “indirect election” of at least some of the most important national officers.
The “father of the Constitution,” Virginia’s James Madison, was not alone in embracing that idea out of a deep anxiety over the perceived political evil of “faction” that had developed in the nation’s governance since independence was proclaimed in 1776. The 13 state governments were in almost constant political turmoil, and the Congress created by the Articles of Confederation replicated the character of the states and was itself almost comically impotent.
Let historian Michael J. Klarman sum up Madison’s perception before Philadelphia: “A properly designed republican government at the federal level, Madison believed, could both redress flaws in the Articles…and remedy the problem of populist politics in the states. Through mechanisms such as lengthy terms in office, indirect elections, and large constituencies, a new constitution could render the federal government less responsive to populist pressures than the state governments had proved to be.” (From Klarman’s The Framers’ Coup: The Making of the United States Constitution)
And “indirect election” is exactly what emerged in the end from Philadelphia, in four specific and very important ways.
First, the founding document placed the selection of the president not in the hands of the voters directly but in the electors voting in what would later acquire the name Electoral College. Second, the document placed the election of members of the Senate not in the hands of the voters directly but in the state legislatures. Third, it gave each state two Senators, putting aside differences among the states’ populations. And, fourth, it used the Senate allotment as part of the formula for the Electoral College. (The other measure of College membership was each state’s seats in the House of Representatives.)
It is probably true that these arrangements — taken together — were necessary to get the Constitution ratified in the first place. Without the equal status in the Senate and incorporation of that feature as part of the election of the president, small states (and, especially, slave-holding states) may not have accepted the basic document at all (at least that’s what the Founders believed).
In the history that has followed the founding, Americans have repeatedly shown dissatisfaction with some of these original arrangements. Of the 17 amendments that have been added to the Constitution beyond the Bill of Rights, a total of seven (by far the largest single category) have each made the nation’s national government more representative – especially by adding women, racial minorities, teenagers, the poor and former slaves to the voting public.
Of the original modes of “indirect election” established in Philadelphia, however, only one has been altered in a fundamental way: Senators are now elected directly by the people, taking that function away from the legislatures (under the Seventeenth Amendment, added in 1913).
“Indirect election” remains for the presidency through the Electoral College (the Twelfth Amendment, added in 1804, mainly saved the College from future chaos of the kind that engulfed it after the 1800 election). Moreover, each state still retains two members of the Senate and at least two electors in the College. Moreover, a respectable argument can be made that those guarantees are probably insulated from being changed – even by constitutional amendment.
First, the original Constitution’s Article V sets up significant barriers to attempts to amend it. It takes a two-thirds vote in each house of Congress and a three-fourths vote of the states to adopt any amendment. In Congress, the Senate with its skewed representative character has an equal role with the more-representative House. In the ratification process, each state gets one vote, up or down on an amendment, regardless of the number of its residents.
Second, Article V in the beginning and still today contains a provision that is almost certainly unknown to many Americans, and yet it created the most formidable barrier to changing the Senate: it says explicitly that no state may be denied its equal number of Senators without that state’s explicit consent. Which state would be willing to consent, in order to promote fuller representation?
It may be argued that Americans have lived with the Senate as it is for so long that few people are talking seriously about attempting to change its basic composition, even if that could be imagined.
It should be noted in passing, though, that one of the legal academy’s most creative constitutional analysts, Yale law professor Akhil Reed Amar, has suggested that – despite Article V’s guarantee of the existing Senate as is – it could be possible to create a more representative “Second Chamber,” leaving the Senate structure untouched but handing over all of its powers to the new entity and letting the Senate then die from irrelevance.
The theory is that the Article V proviso only guarantees how the Senate is composed but not how it functions. Professor Amar, though, does concede the difficulty of getting smaller states to go along with an amendment to actually create his invention.
The durability of the Electoral College’s existing composition may also be affected by that proviso in Article V. If a state must consent to a loss of equality in the Senate, might it also argue that its consent is needed to reduce its share of voting power in the College? That is at least a plausible assertion.
Even so, America appears willing to talk — almost endlessly – about perceived defects in the Electoral College.
The Supreme Court was focusing last week on just one issue: whether electors in the College are free, under the Constitution, to vote for whomever they wish for president, or whether, instead, they can be forced by their legislatures to vote for the winner of their state’s vote by the people. Preliminary indications from the hearings were that the Court probably would decide that electors can be compelled to vote as their state’s voting public had.
Dissatisfaction with the College takes other forms, too, and one of the most significant is how its representative character is flawed. Remember: in a republic, representation equals government power. Is Wyoming, the smallest state, not equal in power in the Senate to California, the largest?
Full representation has been an American aspiration since at least the 1760s, years before the Declaration of Independence. And so it was at the moment of independence. “Taxation without representation,” a cry that regularly echoed across the colonies in the 18th Century, summed up the idea perfectly. One of the principal grievances that led the colonies to split from England was the total absence of any right to choose their own representatives in Parliament.
The members of Parliament, chosen by the people of England (in thoroughly unrepresentative voting boroughs), were said to be the colonists’ “virtual representatives.” The colonists chose not to live that way politically when they created their own national government.
There is, however, a historic disconnect between colonial demands for direct representation and the “indirect election” arrangement that went into the Constitution and largely remains there today. Between the split from the Mother Country in 1776 and the final actions of the Philadelphia convention 11 years later, the curse of too much populism and too much factionalism (plus Shays Rebellion) apparently scared the wits out of the founders.
Now, in 21st Century America, the people do not seem genuinely eager to have full, direct representation in their 231-year-old national government. Election reform is much debated, yet any desire for purer representation appears not to rank high on the nation’s public agenda. And, if it were, has the Constitution itself so tied the people’s hands as to stifle any such urge?
Some time later this year, probably before summer is in full swing, the Supreme Court will make its first constitutional pronouncement since 1952 on the mechanics of the Electoral College. The chances seem slim, however, that it will say anything new that would point to the actual abandonment of that long-running experiment in “indirect election.”
If, however, the Court were to declare that the electors may be commanded by their states to vote only for the presidential choice that their own state’s voters had indirectly expressed at the polls, might that make the College a bit more representative? We await the answer.
Were that to happen, would more Americans think more favorably of that institution? Or would they be inclined to accept the image of the Electoral College that the late Supreme Court Justice Robert H. Jackson sketched in 1952:
“Electors, although often personally eminent, independent, and respectable, officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire: ‘They always voted at their Party’s call, And never thought of thinking for themselves at all.’ “