Your Friends on Facebook Have the Electoral College Wrong

Odds are you've heard the arguments and depending on your political bent. Those on the
right tend to believe that the founding fathers created the Electoral College as a means to prevent the tyranny of the majority and protect the voting outside of the smaller rural numbers. Those on the left tend to believe that the founding fathers intended the Electoral College to prevent slaveholders from using their slave to create absolute control over the presidency by using slaves as votes they controlled for the president and also because the founding fathers thought the average citizen was not politically savvy enough to vote for the best candidate.

The latter is actually only somewhat true, while the whole tyranny of the majority is pure myth. According to historians which include Professor George Edwards III the actual case of the Electoral College was created by the founding fathers as a compromise and because they were tired. In short, it was a plan the was pieced together because the founding fathers were frustrated and ready to be done.

So, you need to understand a number of things. First, the Electoral College was never considered a great idea. The framers did have a strong mistrust of powerful executive branches because they had after all just fought the tyrannical control of a king and his appointed all-powerful governors.  The newly formed United States was the first country on the planet to ever actually elect their leader.

One group of representatives felt that the House of Representatives should elect the President because they really did worry that most of the citizens of the country were not politically aware enough to make an informed vote especially those in the rural areas. They also feared a "democratic mob" which would steer the country astray. Another group of framers felt that Congress should have nothing to do with the election since they felt that having such a small group elect the President made it rife for corruption and nepotism.

You also need to understand that at the time, there were no political parties. George Washington who would later be elected by unanimous vote did not belong to any political party. In fact, the framers believed that because of the lack of parties that the Electoral College would vote their conscience from among several candidates who ran for president. Boy, were they wrong.

The framers cobbled together a compromise that they could sort of live with. It has never worked. Next in this compromise came the problem of what to do with slaves. There actually was never an issue that slaveholders would use slaves to control the popular vote, but there was the problem of how to count slaves for the population of a state. Thus, was born the hideous three-fifths rule which counted a slave as only a three-fifths of a human being for purposes of calculating Federal taxes and electors for the Electoral College. It was by today's standards a shameful inclusion in the noble Constitution. It was a problem that would plague the US for decades to come.

So, the Electoral College which would allow states to appoint and control their own electors separate from the congress was born. None of the assumptions by the founding fathers proved to be true. They assumed that electors would vote their conscience despite the failure to instruct states how they would appoint their electors or divide them up in an election. The founders actually assumed that most presidents would be elected by the House of Representatives, which has only happened twice because the expected number of people to run for President didn't occur. The Electoral College was to elect by the majority. Following Washington as President, there ended up two parties emerging and states instructed electors exactly how to vote. The Electoral College became far more powerful than it was intended to be. This was added to by the 12th amendment of 1803 which allowed the political parties to designate one candidate to run for President.

This brings us to the new attempt to work around the Electoral College. The state law which allows states to instruct its electors to vote for the national popular vote is very Constitutional. The National Popular Vote law is not new. It has been around since at least 2001. Where it could run afoul of the Constitution will depend on how it is worded and how the Supreme Court interprets that wording. In the Constitution in Article I, Section 10 is the "Compact Clause." This clause states that one state may not make a compact with another without congressional approval.

This seems pretty straight forward, but there is a problem. The Supreme Court has already ruled that states do not need congressional approval if the compact involves internal state matters. Since the Constitution gives states internal control of the Electoral College, the question arises is the Interstate Popular Vote Law a compact that violates the Constitution's "Compact Clause" or does it meet the internal agreement outlined by the Supreme Court? You can also add the other rulings by the Supreme Court which also ruled twice, 1892 and 1969,  the state legislators have all but absolute control over their ability to instruct electors. But then there are also statements from the Court which says the compact clause comes into play when states “would enhance the political power of the member States in a way that encroaches upon the supremacy of the United States,” or “impairs the sovereign rights of non-member states.”  It is truly a "sticky wicket."

Look, I know that many of us have seen the maps which shows how if the Electoral College goes away how the popular vote would then be controlled by California, New York, Florida, and Texas. The Problem with that map is it assumes that everyone in California or Texas or another state will vote the same way. This is untrue. California has had a number of Republican governors which includes Ronald Reagan and Arnold Schwarzenegger, and Texas has had Democrat governors such as Sam Houston and Ann Richards. Many states have been at one time or another red and then blue or blue then red, no matter what you think you've heard.

Or maybe you've seen the red state vs the blue state map or the red vs blue voting map. This shows voting by states but these too are misleading. What you may have not seen is the actual map by the population. You see, land doesn't vote. People do. The red map suddenly becomes much less
red when we remove land from the equation.

We have had five presidents who became president but did not win the popular vote. The first was John Quincy Adams who became President despite losing by 10.5 percent of the popular vote to Andrew Jackson. Adams actually failed to secure a majority in the Electoral College. There were four candidates in the electoral college that year. Jackson only received a plurality of electoral votes and so in that case, Adams was elected by the House of Representatives. 

Then there was Republican Rutherford B. Hayes who was elected by the Electoral College despite losing by .8% of the popular vote to Samuel J. Tilden. This one was a wild one. Hayes actually lost the Electoral College except for the fact that 20 of the Electoral Votes were disputed which would put Hayes one vote ahead of Tilden. A commission was formed to study the problem. Finally, it was
determined that Hayes should receive the 20 disputed votes and the Democrats agreed they would accept this only if Hayes would agree to just run for one term. This was called the Compromise of 1877.

Next was when Republican Benjamin Harrison lost to incumbent President Grover Cleveland by .8% of the popular vote. Harrison won handily in the Electoral College to become President.

Following this, it would be over a hundred years before it would happen again when Republican George W. Bush lost by .5% to Vice-President Al Gore. Gore lost in the Electoral College by just five votes following the infamous hanging chad votes in Florida where Gore lost by just 537 votes. In a controversial decision, the Supreme Court ended the recount effectively awarding the 29 electoral votes to Bush. Studies of the recount and its outcome are conflicted on who actually would have won Florida had the recount continued.

Finally, was when Republican Donald Trump lost the popular vote by 2.1% to Hilary Clinton. Trump's campaign use of the Electoral College caused one of the biggest upsets in election history. It was also very clear that the compromise of the Electoral College in 1787 could clearly be used for political gain.

The problem then is a simple one, quite honestly. It would appear that the four times the Electoral College has come into play it has favored one party. The Republican Party did not exist in the 1824 election. The Electoral College is not what it is portrayed on the Left or the Right. It was a compromise created not by some never wrong saints but a group of very human and tired and frustrated representatives. It has never worked as intended. The question is, do you support the Electoral College, or do you truly believe in "one person one vote"? You cannot have it both ways.