The most misunderstood institution in our constitutional government is the Electoral College. Most recently, the Chair of the Democratic National Committee claimed that “the Electoral College is not in the Constitution.” Others on the right of the political spectrum claim that the process by which the members of the Electoral College are selected is our “founders’ vision for our Republic” and constitutionally mandated. Both are dead wrong.
Let’s begin with the actual words of the Constitution: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors equal to the whole number of Senators and Representatives to which the state may be entitled in Congress…” That’s all the Constitution says about how the members of the Electoral College are to be selected. There is other language in the Constitution about the EC beyond this one clause, but it is all administrative process language about the House contingent election, not selecting the electors. All decisions about the method of selecting members of the Electoral College is left to the states.
On the right side of the political spectrum, opponents of reform confuse the current “winner take all” method of choosing electors in effect in 48 of the 50 states with the power granted to the states by the Constitution. In the Federalist No. 45, Madison described the power to appoint electors as an important state power, making the Federal Government “dependent” on actions of the state. “Without the intervention of the State Legislatures, the President of the United States cannot be elected at all…” says Madison. The method of appointing electors is, and was intended to be, strictly a matter of state law. However, unlike the statements of many of my friends on the right, the current “winner take all laws” in effect in 48 of the 50 states, are not constitutionally mandated. “Winner take all” is not mentioned in the Constitution, was not debated or voted upon in the Constitutional Convention, and not mentioned in the Federalist Papers. Only three states used the winner-take-all method of selecting presidential electors in our nation’s first presidential election in 1789, and all three states repealed winner-take-all by 1800. So, those who claim the current system in effect in 48 of the 50 states was the “founder’s vision” are wrong.
I’m not the first to say this, either. In 1824, Senator Thomas Hart Benton said the exact same thing, at a time when the “winner take all” statutes were becoming popular (it was used in ten of the 24 states). Senator Benton said the “winner take all” laws were not “the offspring of any disposition to give fair play to the will of the people.” It was intended to consolidate the power of the dominant political machine in those states that enacted it.
The states control how we elect the president, and the method each state chooses should be that method that enhances the state’s power to influence the federal government. Balance is achieved by making each state equally powerful in the process of electing the president. Do “winner take all” laws do that? No, they do not, and the evidence of that is how presidential candidates campaign. Today, the two major party candidates for president spend 95 percent of their time in 12 states, give cursory attention to a few more, and completely ignore the vast majority of the states. That means 80 percent of the country is ignored in a presidential election. That is the problem, that is where any discussion about reform of the Electoral College should begin, not with specious arguments. When we start with identifying the real problem, we will reach the most rational and constitutional approach to a solution that makes every voter in every state important to every presidential candidate in every election.