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:
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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).
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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)