The Electoral College: An Enigma in a Democratic Society

Valparaiso University Law Review, Jun 2011

By Birch Bayh, Published on 06/03/11

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The Electoral College: An Enigma in a Democratic Society

Valparaiso University Law Review The E lectoral College: An Enigma in a Democratic Society Recommended Citation 0 0 Birch Bayh, Th e Electoral College: An Enigma in a Democratic Society , 11 Val. U. L. Rev. 315 (1977). Available at: - Thi s Article is brought to you for free and open access by the Valparaiso University Law School at ValpoScholar. It has been accepted for inclusion in Valparaiso University Law Review by an authorized administrator of ValpoScholar. For more information, please contact a ValpoScholar staff member at . Valparaiso lluiuersit! ifa euiew THE ELECTORAL COLLEGE: AN ENIGMA IN A DEMOCRATIC SOCIETY BIRCH BAYH* The difficulty of finding an unexceptionable process for appointing the Executive Organ of a Government such as that of the United States, was deeply felt by the Convention; and as the final arrangement took place in the latter stages of the session, influence produced by fatigue and impatience in all such bodies; tho' the degree was much less than usually prevails in them.' INTRODUCTION We have had 190 years to find exception with the "arrangment" for electing a President and Vice-President which the Constitutional Convention created in its last weary days. The scheme on which the delegates finally agreed, the electoral college, was struck as a compromise between the proponents for a direct election by the people and those who favored election by the United States Congress. In the words of historian John Roche, the electoral college "was merely a jerry-rigged improvisation which has subsequently been endowed with a high theoretical content . . . . The future was left to cope with the problem of what to do with this Rube Goldberg mechanism."' Over 500 constitutional amendments have been offered in Congress to simplify and correct the weaknesses which soon became apparent in the electoral college. Only the twelfth amendment, passed in 1803 and ratified in 1804, has effected any major revision. Efforts to effect change were intensified by the close elections of 1960, 1968, and 1976, and by the continuing democratization' of American *Senior United States Senator from Indiana. 1. Letter from James Madison to George Hay, August 23, 1823, reprinted in 3 M. FARRAND, THE RECORDS OF THE FEDERAL CONSTITUTIONAL CONVENTION OF 1787 458 (1937) [hereinafter cited as FARRAND]. 2. Roche, The Founding Fathers: A Reform Caucus in Action, 55 AM. POL. Sci. REV. 799, 810 (1961). 316 VALPARAISO UNIVERSITY LAW REVIEW political institutions.3 Hearings on reform of the electoral college have been held before the Senate Judiciary Committees since 1952. In contending that a system of direct election would provide United States voters with a more meaningful exercise of their franchise, this article highlights existing shortcomings in the electoral college system and rebuts the arguments which have been put forth by opponents of the direct election method. DEFECTS OF THE ELECTORAL COLLEGE The electoral college system has three principal faults: (1) It permits election of a President and Vice-President who have received fewer popular votes than their opponents. That has occurred three times in our history: 1824, 1876 and 1888. It almost happened in 1976. (2) All votes do not count the same. Under the unit rule a President can be elected by carrying the eleven largest electoral vote states by slim margins, even though losing all other states and the nationwide vote by a landslide. Also, all votes for the candidate who loses a state are cast for the candidate who wins the state. (3) The American people do not actually cast the votes which elect their President; the electors do. These electors are free to disregard the preference of the voters who chose them and cast their electoral votes for anyone. George Mason, one of the delegates to the Constitutional Convention, perceived the delusion of the electoral college. He stated that the elector system "was a mere deception-a mere ignis fatuus on the American people-and thrown out to make them believe they were to choose" the President.' There are four features of the electoral college as it operates today which illustrate these defects. Faithless Electors The founding fathers envisioned a congregation of "men most capable of analyzing the qualities adopted to the station, and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice" as Alexander Hamilton explained in Number 68 of the Federalist Papers. Because of this requisite wisdom, the Constitution of necessity left the electors independent. 3. See R. Claude, Nationalism of the ElectoralProcess, 6 HARV. J. LEGIS. 139 (1969). 4. 3 FARRAND at 492. http://scholar.valpo.edu/vulr/vol11/iss3/1 1977] Our legacy from this provision has found wisdom irrelevant and consternation universal when the elector exercises his independent thought. As early as 1796 an irate voter wrote in the United Sta (...truncated)


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Birch Bayh. The Electoral College: An Enigma in a Democratic Society, Valparaiso University Law Review, 2011, Volume 11, Issue 3,