How has the electoral college changed from the original intent of the framers?

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The Electoral College explained

02:02 - Source: CNN

Editor’s Note: Robert Alexander is a professor of political science and founding director of the Institute for Civics and Public Policy at Ohio Northern University. He is the author of “Representation and the Electoral College.” Follow him on Twitter: @onuprof. The opinions expressed in this commentary are his own. View more opinion at CNN.

CNN  — 

Every four years Americans are reminded of an institution that is controversial, poorly understood, and yet responsible for selecting the country’s only nationally elected officials – the Electoral College. Controversy over the body has only grown as two of the last five US presidential elections have resulted in outcomes where the person receiving the most votes across the country did not capture the presidency – and it’s possible that Donald Trump could still win in 2020 even if he loses the popular vote by five million.

Indeed, the Electoral College is among the most debated aspects of America’s constitutional system, with over 700 attempts to amend or abolish it since its inception at the federal level. To be sure, the Electoral College we know today is very different from the one conceived by the Founders. The plan to select the nation’s leader was among the most vexing to face the Framers. Debate centered on three prospective modes of selection: having Congress choose the president, having state legislatures make the choice, or having a direct popular vote to select the president.

Concerns over separation of powers, regionalism, and civic knowledge were among the chief obstacles in determining what would be the best means to select the president. The institution of slavery further hung over decisions dealing with representation during the Convention. Ultimately, the Framers settled on what was to become the Electoral College – a Frankenstein’s monster that combined elements of all three plans.

States were afforded representation equal to their membership in the House and Senate. Each state legislature was charged with determining how they would award their electoral votes. These votes would be discharged to presidential electors who would meet in their respective states to cast their ballots for the nation’s leader. In Federalist 68, Alexander Hamilton indicated that electors would be “most likely to possess the information and discernment requisite to such complicated investigations.” It was to be a deliberative body with the sole task of selecting our nation’s leaders.

Originally the top two candidates receiving votes in the Electoral College were elected as the president and vice president, respectively. Although this conception was designed to have the two most capable individuals occupy those offices, it soon became apparent that these individuals would likely have different opinions on a number of issues. This became increasingly evident with the emergence of formal political parties. The appearance of party tickets further complicated matters as electors made no distinction in their ballots for president or vice president.

While the form of the Electoral College remains largely unchanged, its practice has changed considerably. This is largely due to the laws that have been adopted among the states to support the two-party system. Chief among these include the selection of electors who are to be loyal to their party’s ticket and the adoption of the winner-take-all rule to award electoral votes. The latter requires that whomever wins a plurality of a state’s votes receives all of the state’s electoral votes. These changes would forever alter the original operation of the Electoral College to an institution designed to serve the ambitions of the major parties.

After George Washington’s tenure, state parties began securing pledges from presidential electors, which strengthened party control and changed the Electoral College process from its original intent. In the 1796 election, Federalist John Adams received the most votes, with Democratic-Republican Thomas Jefferson receiving the next most votes. This resulted in a president of one party and a vice-president of another party. In 1800, this practice came to a head and yielded a constitutional crisis. Electors supporting Jefferson and his running mate, Aaron Burr cast one vote for each of them resulting in a tie between the two. As a consequence, no candidate received a majority of electoral votes and the election was thrown into the House of Representatives, only to be decided after 36 ballots. The legislature quickly took action and the 12th Amendment was adopted in 1804.

Among other things, it required electors to cast one vote for president and one vote for vice president to avoid future ties. The election of 1800 is also noteworthy because it dramatically changed the role of presidential electors. The emergence of party tickets transformed the office of elector from one of independence to one of servitude to the party. It also codified a move away from the original Electoral College to the evolved Electoral College.

The Constitution leaves the question as to how electors would be chosen up to state legislatures. Early on, there was a mix of states using direct election of electors and those having electors selected by their state legislatures. By 1816, nine states used state legislative selection and ten used a direct popular vote. However, by 1836, all states but South Carolina opted to select their electors through a popular vote. Today, all electors are popularly elected in all states. This decision signifies a clear move toward the democratization of the Electoral College process.

The winner-take-all method is not enshrined in the Constitution, nor are laws at the state-level to bind presidential electors. Instead, these laws progressed as a means to ensure the power of the two national parties. Awarding electoral votes in this fashion has had a tremendous effect upon presidential campaigns – determining how candidates use their resources and where they choose to campaign. All states except for Maine and Nebraska, which use district representation, have opted for the winner-take-all method to award their electoral votes.

No longer do we expect presidential electors to exercise independent judgment, nor would most Americans be comfortable with state legislatures determining electoral votes in place of a popular vote within the states. Likewise, few would embrace the Electoral College serving as a nominating body, with the House of Representatives being charged with the selection of the president of the United States. At the Founding, few believed that any candidate outside of George Washington would command a majority of electoral votes. These are just a few of the ideas inherent in the original Electoral College.

In my book, I make the point that confusion over the institution is driven in part by the differences between the original body and the evolved body. It is also driven by the fact that it is a process with many parts that is decentralized among the states. Public opinion relating to the Electoral College has always been shaky.

Polls have consistently shown a majority of Americans would prefer to abolish the Electoral College in favor of a national popular vote. As recently as 1969, a bipartisan effort to abolish the institution came very close to occurring. At the time, 80% of Americans supported abolishing the Electoral College and Republican President Richard Nixon was also on board. The Bayh-Celler amendment passed the House 338-70, but was killed in the Senate through a filibuster.

Several of the nation’s Framers struggled with the Electoral College as they gathered additional hindsight. For instance, James Madison wrote that: “The present rule of voting for President … is so great a departure from the Republican principle of numerical equality … and is so pregnant also with a mischievous tendency in practice, that an amendment of the Constitution on this point is justly called for by all its considerate and best friends.”

More recently, Donald Trump has expressed conflicting views on the body. Over the last decade, Trump has been both critic and champion of the institution. After the 2012, election he tweeted: “the electoral college is a disaster for a democracy,” and in 2016, a week after his victory, he tweeted that “the Electoral College is actually genius in that it brings all states, including the smaller ones, into play. Campaigning is much different!”

Days after the 2016 election, the Wall Street Journal reported that Trump approached Senate Majority Leader Mitch McConnell about moving to a national popular vote – to which he was met with a firm rebuke.

The rules matter and when it comes to the Electoral College, those rules have changed considerably from what the Framers created. Most changes have come at the state level, rather than at the national level. This is no different today.

Currently, state legislatures from across the country have passed bills to join the National Popular Vote Interstate Compact (NPV), which is aimed at ensuring the popular vote victor wins the Electoral College. Today, 15 states and the District of Columbia are members, representing 196 of the 270 electoral votes required for it to go into effect. Although proponents have made great headway, its path to secure 270 votes remains difficult without greater bipartisan support in more states.

The Electoral College never fully operated as intended – undergoing significant revision early in US history and continuing to evolve over time. Indeed, today’s version bears little resemblance to what the Framers crafted in Philadelphia in the summer of 1787. The Electoral College has always been controversial. It will likely prove to be once again this fall.

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