Can Anything Dislodge the Electoral College?

Of all the institutions in American politics, the Electoral College is surely the strangest. It never worked as its designers intended, and for more than 200 years, generations of aspiring reformers have lambasted its distortions and mounted heroic campaigns to replace it. And yet it still stands, only slightly modified, in all its Rube Goldberg curiosity. Which begs the obvious question that titles the Harvard historian Alexander Keyssar’s new book, Why Do We Still Have the Electoral College?

The short answer is that the constitution is really hard to amend, and virtually impossible when more than a third of senators or representatives think their states would do worse under new rules. And this has always been the case, for reasons ranging from preserving partisan advantages to preventing racial integration. As a result, our 18th-century peculiarity persists.

To fully explain how difficult the Electoral College is to dislodge, Keyssar chronicles more than two centuries of near-constant disputation and battle. On four occasions one chamber of Congress approved a constitutional amendment, only to see it fall short in the other. All of these came during times in which parties were ideologically confused and politics was uncertain enough to make even short-term advantages unclear—
opportune times for constitutional change.

Today’s reformers have found what they hope is a workaround: the National Popular Vote Interstate Compact, under which states pass legislation that binds their electors to support the national popular vote winner. For the compact to take effect, states would have to collectively represent at least 270 Electoral College votes, the bare minimum necessary to win. As of this writing, 16 states, representing 196 electoral votes, have signed on.

It’s a clever approach. But the Electoral College is a slippery target. In most political constituencies, opposition to the institution is fluid; with every elimination effort, the battle lines change. In each fight, critics of the institution earnestly call out its arbitrary distortions, and trumpet broad democratic norms of fairness and equality. But those distortions give some states and some constituencies more power than they’d otherwise have, and they are unwilling to give it up. Opponents always find some plausible principle—the value of federalism, a vague warning about some unintended consequence—on which to hang a defense. The Road Runner always gets away, despite Wile E. Coyote’s cleverest schemes. 

Keyssar begins in the summer of 1787, as the Framers were struggling mightily over how to elect a president. Some plans had the legislature picking the president, for a single term. Others favored a direct election, eager to see a more independent executive with closer ties to the people. After months of reversals and oscillations, the Electoral College emerged as “an eleventh-hour compromise by gifted but tired men who had difficulty figuring out how to elect a president and had to bring their work to a close.”

The system was fraught from the beginning. Motivated by the prize of executive power, partisan state governments continually changed the rules for distributing Electoral College votes to advantage their own party. Sometimes, they distributed electors by congressional district. At other times, they gave them all to the statewide popular vote winner. Occasionally, the legislature just decided whom to appoint. 

These partisan yo-yos, Keyssar writes, “transformed the long electoral campaign into a procedural free-for-all.” Predictably, this attracted reformers. As early as 1800, Thomas Jefferson’s Democratic-Republican Party advocated for a constitutional amendment that would require states to allocate electors by congressional district. District elections were widely considered fairer than winner-take-all elections, since they were more proportional. By nationalizing the rules, district elections would keep states from capriciously refashioning their processes to suit changing partisan whims. 

The Democratic-Republicans also felt disadvantaged by winner-take-all elections, compared to the then-ascendant Federalists. While a few prominent Federalists, including Alexander Hamilton and Gouverneur Morris, joined Jefferson’s cause, their party was mostly in favor of the status quo, making any reform impossible.

Jefferson might have had a chance to change the system when his party won a supermajority of House seats in the 1802 midterms. But after their monumental victory, the Democratic-Republicans felt more confident in their ability to win outright majorities and backed off their earlier support for mandatory district elections, which they now thought would help Federalists. Instead, they put all their effort into what became the 12th Amendment, in which electors cast separate votes for president and vice president, to help increase Jefferson’s chances of re-election in 1804.

The partisan back-and-forth continued. In the heated 1812 campaign, the New Jersey legislature canceled voting just days before the election and threw its support to the Federalist candidate, DeWitt Clinton. The North Carolina legislature appointed electors to ensure that James Madison got its votes, lest its state’s voters prefer Clinton.

These “blatantly unprincipled” maneuvers, Keyssar writes, along with the general drift toward winner-take-all rules, reanimated the cause of a district election amendment in the 1810s. That era’s reformers used language that today’s reformers would find familiar: They complained that the system’s rules deprived political minorities of a voice in state elections, and made partisan politics nastier by raising the stakes, especially in large states. And they outlined how a well-placed minority that formed a majority in a majority of states could rule. 

The Electoral College is a slippery target. In most political constituencies, opposition to the institution is fluid; with every elimination effort, the battle lines change.

Between 1813 and 1826, Congress devoted considerable time and energy to this debate, with reformers making steady gains. In the 16th Congress (1819–21), more than two-thirds of senators and 63 percent of House members (just short of the requisite two-thirds) supported district elections—the closest Congress ever came to abolishing the winner-take-all Electoral College. But it wasn’t enough. As they would for another two centuries, the institution’s defenders argued for the primacy of states’ rights and for fealty to the delicate compromises of 1787. (It was also possible that state legislatures would gerrymander districts for partisan gain, thus distorting results in a different way.)

The 1824 election, a four-way contest ultimately decided in the House, reignited the case for reform. In 1826, 73 percent of representatives supported a district elections amendment. But reform failed this time in the Senate, as southern states grew worried about what might happen if reformers overturned the original rules, which had given slave states more electoral influence than their voting population merited.

Calls for reform picked up during the pro-democracy stirrings of Reconstruction, and gained urgency after the disputed, fraud-ridden election of 1876, in which Rutherford Hayes became president despite losing the popular vote. But as politics became more polarized, reform became more unlikely. Interest in reforming the Electoral College slowed.

In 1948, Strom Thurmond mounted a successful third-party Dixiecrat campaign, winning four southern states, and one faithless elector in Tennessee. His candidacy raised the unwelcome specter of the House again deciding a presidential contest, with a splinter regional party playing kingmaker. After the election, the unlikely duo of liberal Massachusetts Republican Senator Henry Cabot Lodge and conservative Texas Democratic Congressman Ed Lee Gossett teamed up on a new proposal: Allocate states’ electoral votes proportionally, according to the percentage of votes.

Lodge liked this proposal because it solved the faithless-elector problem and the proportionality ensured that campaigns could no longer ignore “sure” states while focusing on “doubtful” ones. The approach would also solve the problem of gerrymandering inherent in any district-based elector system. Gossett liked it because he thought that black voters, who were key swing constituencies in large swing states, had too much power under the current system. The Senate voted in favor of the proposal, 64–29, in 1950, clearing the two-thirds hurdle. But the conservative argument that worked in the Senate—proportional elections would weaken the influence of black
voters—flopped in the more liberal House, where large “pivotal” states also had more representatives. Whatever the obvious defects of the Electoral College, this proved too much.

Debate continued through the 1950s. The close election of 1960 revived concerns about faithless electors (there were 15 in 1960), and with George Wallace’s third-party candidacy in 1968 it was again possible that the House would decide the outcome. Reformers kicked back into gear, advocating for getting rid of the Electoral College entirely and simply electing presidents through a national popular vote. 

The Electoral College, Keyssar writes, emerged as “an eleventh-hour compromise by gifted but tired men who had difficulty figuring out how to elect a president and had to bring their work to a close.”

Hubert Humphrey had been championing this solution since the 1940s, comparing the Electoral College to a “human appendix” (“useless, unpredictable, and a possible center of inflammation”). He won the support of influential Indiana Senator Birch Bayh, who held countless hearings, building on pro-democracy energy from the Voting Rights Act and the one-person, one-vote Supreme Court rulings. In 1969, both Humphrey and his main opponent, Richard Nixon, endorsed eliminating the institution. The House voted overwhelmingly in favor of a national popular vote amendment, 338–70. With strong bipartisan support and, in one poll, 81 percent of Americans supporting the amendment, it looked like the time had finally come. 

But progress slowed in the Senate, where southern senators from states that now voted overwhelmingly Republican for president had more power, and could use more dilatory tactics. These senators had grown extremely wary of more federal involvement in elections, and feared that they would lose more power to big, liberal states with high turnouts. As a result, they had become proponents of the Electoral College. After two failed cloture votes, reformers surrendered.

The close 1976 election offered yet another springboard for reform, with Jimmy Carter championing enthusiastic support for a national popular vote. But again, the more conservative, small-state-heavy Senate prevailed, and the 51–48 Senate vote fell well short of the two-thirds majority needed. Reform energy drained away as the country shifted in a more conservative direction. 

All of this history may seem dispiriting to the latest attempts to renegotiate that strange compromise of 1787. If the Electoral College has stood for this long, despite constant attack, why would this time be different? Indeed, the constitutional amendments that came closest to passage set sail when both parties were split and neither saw a clear advantage to maintaining the institution. Today, the country is hyperpolarized, and Republicans have a clear Electoral College edge. 

This hasn’t stopped activists from pushing, and since the 2016 election, interest in abolishing the institution has been rising once again. In addition to its prominent place in the 2020 Democratic presidential debates, the Electoral College has featured in multiple prominent recent books, including Keyssar’s exhaustive work. The New York Times editorial writer Jesse Wegman’s persuasive Let the People Pick the President is the go-to volume for the slam-dunk case for the Electoral College’s democratic pathologies. The Ohio State University law professor Edward Foley’s thoughtful Presidential Elections and Majority Rule offers a good mix of history and reform proposals. 

Those proposals include the National Popular Vote Interstate Compact. In some respects, it’s the most promising scheme yet: Getting states representing 270 electoral votes to sign on is a much lower barrier than passing a constitutional amendment. It’s difficult to imagine two-thirds of either the House or the Senate agreeing on it, and the compact would cut Congress completely out.

But underneath the institutional shortcut, the same obstacles hold. With the possible exception of Colorado, all of the current compact members lean solidly Democratic. Republican states are unlikely to undermine a system that has helped Republicans gain the White House despite losing the popular vote in two of the last five elections. And since most swing states have legislatures that are either divided or completely controlled by the GOP, Democrats who might support such a measure can’t overcome Republican opposition. To abolish the Electoral College under the compact, Democrats would need a sweeping nationwide victory that gives them unified control of far more states than they run now. 

Such a landslide isn’t impossible, but it’s unlikely. And as Keyssar’s history shows, even if that victory did come, Democrats might no longer be interested in eliminating the institution. Like Jefferson’s party in 1804, they could quickly decide that eliminating the Electoral College would only undermine their newfound dominance. They would probably be better off pursuing easier-to-make, harder-to-reverse changes, like increasing the size of the House, which would add to the Electoral College votes of larger states.

Nonetheless, Keyssar attempts to muster some optimism: “The tale told here is a history of increasingly widespread democratic beliefs. . . . An undercurrent of democratic progress courses through the trail of legislative defeats.” This is a nice sentiment, but in a moment of democratic backsliding and hyperpolarization, we shouldn’t have false hope. Big reforms may still be possible, but to succeed they will need to scramble two-party partisanship. Right now, it’s difficult to see that happening without bigger changes happening first.