If winning the most votes made you president, Joe Biden would have it in the bag by now. But voters don’t get to pick the president here in America. The Electoral College does. Which is why Biden’s supporters can’t rest easy, even though it’s a lock that he’ll win the popular vote. Donald Trump, who lost the popular vote by nearly 3 million votes, owes his presidency this baffling, archaic kludge of an institution and he’s still got an outside shot at a second term because of it. So why did our blessed Founders saddle us with the Electoral College? Why is it still there, despite many efforts through the years to reshape or kill it?
This week’s guest, Alexander Keyssar wrote a book, “Why Do We Still Have the Electoral College?” to answer precisely this question. We discuss how the Electoral College was a makeshift afterthought compromise at the Constitutional Convention, how its half-baked rules of the Electoral College almost immediately threw presidential elections into disarray, how it spurred the creation of political parties (despite the Founder’s intentions), why the states converged on winner-take-all rules for the allocation of electoral votes rather than settling on district-based or proportional schemes, and much more. Why did later attempts to replace the Electoral College with a national popular vote fail? Are future attempts incredibly unlikely, or is it much more likely than you think? We talk about that, too.
Alexander Keyssar is the Matthew W. Stirling Jr. Professor of History and Social Policy at the Harvard Kennedy school for government. He’s the author of many distinguished works of history, including the “The Right to Vote: The Contested History of Democracy in the United States,” a finalist for the Pulitzer Prize.
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Readings: Why Do We Still Have the Electoral College? by Alexander Keyssar
Transcript:
Will Wilkinson: Hi Alex, how are you?
Alexander Keyssar: I’m well, thanks. And you?
Will Wilkinson: I’m great. Welcome to Model Citizen. Thanks for coming on. I wanted to talk to you today about your new book, Why Do We Still Have the Electoral College. I think that’s a question that a lot of people have on their mind and the fact that we do have it, I think, has a lot of people anxious. The last election was one in which the winner of the electoral college vote was different from the winner of the popular vote. So a lot of people have been thinking about why having this creaking decrepit institution still makes sense and I found your book, a really illuminating account of the history of the Electoral College but, moreover, why it hasn’t gone away despite the fact that it’s just so weird.
Alexander Keyssar: It is weird. I think somewhere in the book I say that the two adjectives that seem to be used most commonly in reference to the Electoral College in the 19th century as well as the 20th are cumbersome and archaic.
Will Wilkinson: They’re already saying it was archaic in the 19th century?
Alexander Keyssar: They were saying it was archaic by the post-Civil War period. It was already archaic. And going back to your initial point about why we still have it and making people anxious, there are many remarkable facts about the current election campaign in the current election, but one of them is that there would really be almost no suspense about this election if it were being held according to a national popular vote since almost no one outside of the president’s inner circle believes that he will win the popular vote.
Will Wilkinson: Yeah, I think The Economist’s model, that’s my favorite out of loyalty. I used to work at The Economist, so I keep up with them, and I think the last time that they updated their model, they’ve got Biden, I think, it was 99% at winning the popular vote. There’s almost no question. I mean, they’ve got them at 90%, 93%, I think it was, to win the Electoral College, so that’s looking pretty good, but still people aren’t sure. These races are really, really tight in a lot of the so-called swing states and it’s conceivable that Biden could win the popular vote in just… Clinton won by nearly three million votes. Biden could win… I forget what the what the upper limit is, but he-
Alexander Keyssar: I think he’d win by five million votes.
Will Wilkinson: Yeah, by five million and still lose. Yeah, that would be a travesty and send us spiraling straight away into a crisis of legitimacy. So it seems maybe having an institution that threatens that risk isn’t the best idea. But this is not a book about why we should scrap it. It’s a book about why people have tried to scrap it through the years and why they failed and I thought that a great frame for just learning about the institution became because a lot of people read some stuff about why it got going in the founding and had vaguely knew about… there was a couple of attempts in the late ’60s, early ’70s to replace it with a national vote, but that’s all I really knew. But there’s a really rich history of discontent with the way it was structured and attempts to change it in various ways.
So why don’t we just go back to the beginning and start with the reason we ended up with this kludgy device in the first place. In the Constitutional Convention, it took them forever to figure this out. Why was it so hard for them and why did they arrive at this particular cumbersome solution?
Alexander Keyssar: It’s a very good question. When the framers arrived in Philadelphia in summer of 1787 or the late spring of 1787, they had collectively no clear idea of how you would go about choosing the chief executive of a republic. They had no models, really. Their experience with executives, with the executive power was of monarchs or people appointed and sent by monarchs. So they couldn’t just import a framework from someplace. What was interesting is that where they started and where many of them remained was with the idea that Congress should choose the president. That was considered the default position. They took some straw votes on that and that had the most support. But usually, they take these straw votes, and then not long afterwards, people will say, “You know, that’s really a bad idea.”
We’re trying to do separation of powers here if Congress chooses the president. Even if it’s for a single term, you don’t get separation of powers, you’re going to get corruption, so then they would back off that. And they roamed around thinking about a number of different solutions. They talked about the governors choosing the president. That’s one option that didn’t have a lot of support. They did talk about having a national popular vote and that had some support, including from James Madison, who was the leading figure there.
Madison came to this in an interesting way. He said, “Well, who should choose the executive? It would have to be either the people themselves or some other branch of the government.” He was against Congress to meet for the separation of powers and corruption reason. It is obviously preposterous to think the judiciary would choose the president, so let’s do the people. And he acknowledged, interestingly, that that would be to the disadvantage of southern states, including his own, but that he thought it was the right move anyway. The reason it would be a disadvantage is that it would mean the national popular vote then people in the south voting would get no influence or weight on behalf of their slaves.
So they went around all summer at the end of the summer. For any of us who’ve ever been part of large committees trying to do something, the story is classic. They got to the end of the summer, they really had to get this thing done. They were tired, it was hot. So the convention adjourned for a week and left a committee behind. The committee on postponed parts. May we all have committees on postponed parts and it was the committee on postponed parts that came up with this.
And I think that what was appealing to most members of the convention about this were two features. There were several different interlocking features. One was that what the Electoral College is, when you think in terms of its structure, because each state gets electors equal to the number of members of the House and the number of senators. The Electoral College, in a sense, is a replica of Congress, but it’s a replica of Congress that only meets once, does its business and dissolves, so the separation of powers and corruption issues are avoided.
Will Wilkinson: It’s like the city that appears in the mist every 100 years or something.
Alexander Keyssar: Right. Like Congress, yeah. I think the second appeal of it in structure was that what it did was to import into the process of presidential selection the compromises between large states and small states and between slave states and free states that had already been worked out with respect to Congress earlier in the summer and it meant that they didn’t have to reopen those. They said, “Okay, let’s just take the same formulae that we had and we’ll import them.”
Will Wilkinson: I mean, they’re retired. They’d been there forever. Get to wrap this thing up.
Alexander Keyssar: Exactly. And they all knew that George Washington was going to be the first president anyway, so it was late, I’m going to keep hassling over this. We’ll see how it works with Washington. And then there were even references to the fact that we have an amendment procedure in the Constitution, we can change it if it doesn’t work.
Will Wilkinson: Yeah, I was glad to see that my favorite Founding Father, Gouverneur Morris, not everybody’s favorite, but he’s my favorite, that he was a big proponent of the national vote. And when I’m having an argument with an avid defender of the Electoral College and they give you the we’re a republic, not a democracy kind of argument, I love to pull out the, “Look, James Madison was like, in principle, this is the right thing to do.”
That helps defuse the argument that somehow, the framers designed this institution through some intense process of deliberation and they settled upon this particular solution because it was clearly superior to all others, right? It was just the least objectionable compromise that they could come to and at the same time, it was just like they actually had no idea how it would function. It just took care of most of the objections that everybody had to everything else, which reminds me, what were the objections exactly? So Madison liked a national vote, but lots of southern states, but not just southern states didn’t like it, what were people saying against it.
Alexander Keyssar: Yeah, there were objections of several sorts. It wasn’t just southern states. There was concern among some of the smaller and mid-sized states that a national popular vote would give, in effect, the large states too much weight that would just be proportional to population in effect. So the residents of large states would simply have too much influence. And there was a concern that it was just, the word they used was impracticable. How do you count the votes and get things counted all over the country? We’ve got three and a half million people spread out over this fairly wide area. Most people aren’t going to really know who the notables are and it would be administratively clumsy and unwieldy. Those are the kinds of arguments.
But it has to be said in a way that the decision was not an anti-democratic one when you look at it. I mean, in part, because even if they had a national popular vote at the time, even if they had adopted that, it would have been a national popular vote among property earning white males.
Will Wilkinson: Yeah, and that wasn’t as attractive to the southern states after they had already brokered the three-fifths compromise for representation.
Alexander Keyssar: Exactly, exactly.
Will Wilkinson: So they didn’t have to go through that whole rigamarole again, they could just bake in the compromise that they’d already made into the structure of the Electoral College. So your number of electors is your number of representatives plus your two senators, so it just reflects all of the decisions that they’d already made. But it’s not the legislature actually choosing. So you’ve got this independent body that the executive is not going to be beholden into the legislature. So it gave them some of the advantages of having states to do it, but nobody liked governors picking them or the state legislators picking them, so it’s a different thing that only exists for a certain time of the year, but still the states are going to be able to decide how they do it. When I was reading it, it just feels almost like a grab bag of concessions.
Alexander Keyssar: Exactly so. I mean, for example, there is the provision, which is still in the Constitution, that electors will be chosen in such manner as the legislature of each state will decide this is a big concession to the states. The Constitution does not require states to hold a popular vote for president. State legislatures can choose electors by themselves, and they did. I mean, it wasn’t a theoretical thing. They did pretty often in the first third of the of the 19th century. So that’s one concession.
There’s also this trade off that they build in and they don’t quite know how it’s going to work. The Electoral College system is weighted to population to larger states, the weighting is offset a little bit by the senatorial votes. But the big concession to the small states was in the “contingent” election system, which we don’t even think about much anymore and it hasn’t been used in almost two centuries, but who knows, because the contingent system provides that if nobody wins a majority of the electoral votes, then the election immediately devolves upon the House of Representatives where they will vote according to a very peculiar rule, which is that each state delegation gets one vote. That greatly increased the proportionate power of small states.
So those two things were balancing each other also. It’s a very, very intricate system that it just has a little bit the air of what you said. So let’s tack on this compromise. Somebody objects to something else. Okay, so we’ll do it in orange and not in blue or orange and blue and that’s the way it came out.
Will Wilkinson: Yeah. What’s interesting is that so much of that structure persists that both of those features that state legislators can still pick the electors and that if there’s no majority, each state gets one vote in the House. That’s still part of it and that’s one of the things that makes the book interesting. I think most of us would agree just seem crazy, at least in the modern democratic era. It’s easy to see how at the time, with so much stress on the federalist structure of the state, they’d want to make sure that the states had this very big role and so they’re just going to leave it up to them all together how to pick the electors. It’s up to you, that’s all it really says, so they can do it however they like.
That seems objectionable now, but it’s easy to understand then. But just having this weird mechanism where if nobody gets a majority electoral votes, then each delegation in the house gets one vote is bizarre and people still worry about the possibility that those things will be used, right? I’ve heard conspiracy theories. They’re not even conspiracy theories the actual republican party in some states has been talking about… there’s this long article, where was it, in The Atlantic or The New Yorker, where state officials were found to just be talking about the possibility that if the count comes in late and so if Trump is ahead on election night, but then you get this blue shift, and he starts to catch up over time. They can start litigating all of that stuff and say those aren’t valid ballots and try to throw the whole thing into confusion so that the state legislature has to step in to clarify who the winner is and appoint electors. And that would just be a mess.
That was threatened in 2000 and it was cut short. It was threatened by Florida during the Bush v. Gore controversy when they’re doing all the recounts the hanging chads and all of that in Florida. The threat that the state legislature would just take it upon itself to pick who won the state is part of what I think created pressure on the court to take up the case and make a decision.
Alexander Keyssar: Right, although I think the Florida legislature had the court decided differently, the Florida Legislature was going to go ahead and choose its own electors and create more of a mess.
Will Wilkinson: Yeah, that would have been just a complete garbage fire. Who knows how that would have panned out?
Alexander Keyssar: Right. My own view is that these scenarios of this type are not completely improbable over the next few weeks. I mean, I think they’ll be reasonably plausible. Of course, any such move or maneuver would produce even more lawsuits than we have going now on election matters, but it’s not completely implausible. And then going back to the broader point about these archaic features, which nobody would endorse anymore, I mean, the last serious debate about the contingent election plan or mechanism was in 1992, when Ross Perot was running, and before he withdrew and then came back in, he was running getting about 21, 22% in the polls, even higher, and it looked like he would have a very good chance to throw the election into the House and everybody was talking about changing the system. But then, as often happened, when the crisis receded, then it was okay, never mind. Don’t bother for me.
Another feature of it, building on what you were saying before, is that precisely the fact that what we call the Electoral College has so many different features and gimmicks has ironically made it harder to reform because it’s been hard to go in and just say, “”Okay, let’s get rid of this piece because you’re going to do a constitutional amendment and then other folks are going to say no, because if you do a constitutional amendment and you just get rid of this piece, then you’re implicitly saying all the other pieces are okay and we don’t want to do that.” There have been countless proposals over the years to get rid of electors and just have the votes passed automatically.
Will Wilkinson: But we seemed not to get it done, so your book is a study in the stickiness of institutions once they settle in, their path dependency. Things get built around them even if their design doesn’t make sense and so they become hard to unwind later. But they set this up. They’re like, “Okay, let’s go.” They started to have elections and then pretty immediately, problems started to pop up with the Electoral College. So what were the main issues that arose early on?
Alexander Keyssar: Well, one of the issues that arose was that as early as the 1790s, different states started using different methods of choosing electors, so there wasn’t uniformity. And even worse, different states or factions within states and parties, as parties start forming in the 1790s the framers didn’t think about parties, but by 1800, there were parties, and they start changing the system and trying to game it.
I think the first crisis of this sort takes place in and around the election of 1800. It wasn’t just the election itself, but the 1800 election was a contest between Jefferson and Adams. It was a replay of the 1796 election, which Adams had won pretty narrowly. And in winning in 1796, Adams had picked up a couple of electoral votes from Virginia because Virginia used a district system and because Virginia’s Democratic-Republicans were ideologically really committed to a district system. But with the 1800 election looming ahead and they didn’t want Jefferson to lose to Adams, again, by a couple of electoral votes, the Virginia legislature, and I’m pretty sure Madison was involved in this, switched from districts to winner-take-all so that Adams wouldn’t get any electoral votes. Shockingly, Massachusetts retaliated and did something very similar. I think it handed it over to the legislature, which the federalists controlled.
So you have in this jockeying, you have not the kind of experimentation with different modes of choosing electors that the Founding Fathers in their most benign visions might have imagined, but what you have is hardball politics determining what the structure is. And then of course, until that point, each elector cast two votes and did not distinguish the vote for president from the vote for vice president. The idea was that the person who wins the most votes becomes president, the person who wins the second most votes becomes vice president. It was like a student council election or a non-partisan election for city councils, which is, by the way, how Jefferson ended up being Adams’ vice president from 1796 to 1800.
People cast two votes. There was a lot of gaming of that too, like throwing away your votes so that you didn’t give too many votes to some other person. But then what happens in 1800 is that Jefferson and Aaron Burr, the most distrusted man in America, who was the vice presidential candidate, get the same number of votes. And so the election then gets sent over to the House of Representatives where, effectively, it’s in the hands of the federalists. So you have this system, which after all sorts of very unseemly gaming of the system that goes on for a year or two before and then ends up in this fiasco in the House of Representatives. It takes a long time to-
Will Wilkinson: They had to have vote after vote after vote after vote, right? It took a long time and then finally, somebody changed his mind.
Alexander Keyssar: Right. Finally, somebody in Delaware said they’d abstain then it finally went to Jefferson.
Will Wilkinson: One of the insights that I got reading this part of the book, which I found really interesting, was that you draw out how the convoluted structure of the electoral college system that you have to pick electors, the whole system is designed to not encourage partisanship. The idea of faction and party was strongly disapproved of at the convention and that’s a common criticism of the structure of the Constitution is that there’s a certain naivete in its structure where there’s just the assumption that the voters at the time, propertied white men, are going to vote for the most dignified and learned figure and that politics wouldn’t be organized according to these narrow interest groups or coalitions of interest groups, which is what a party is.
But it immediately becomes partisan. Things divide into the federalists versus the Democratic-Republicans. And one thing you show is that the structure, the Electoral College itself, created the need for party structure. In order to do all the coordination, you needed to identify electors who are going to be loyal to a particular candidate, to follow all the calendars in these different states because they don’t all do it the same way or at the same time. And so you have to have a structure to organize all of that activity, so it actually encouraged the cultivation of a party structure.
Alexander Keyssar: Oh, absolutely. Although they didn’t have primaries as we have today, and this was very important to coordinate, it meant since the state legislature was going to decide how electors were going to be chosen, it put a real premium on trying to win state legislative election so that the campaigning for president in indirect form starts a couple of years before the election because you want to control as many state legislatures as you can because if you control the state legislature, then you can decide how the electoral votes should be divvied up.
Absolutely, the structure encourages the formation of parties. And then when they pass the 12th Amendment, which calls for designation of the candidates that an elector votes for a presidential candidate and the vice presidential candidate, that, of course, means that presidents and vice presidents are running as part of a ticket, which means they’re running on behalf of parties, so that solidifies the same thing.
And I also want to note here, and I do talk about it in the book, is that when they came out of the 1800 election, there was a lot of sentiment for designation saying you vote separately for president and vice president, but there was just as much and maybe more sentiment in favor of banning winner-take-all and requiring popular elections and district elections. That had been a position that Jefferson and Democratic-Republicans had embraced very strongly. But by 1803, 1804, they had significant majorities anyway, they could win the election regardless of how it was structured and they backed off that reform.
Will Wilkinson: Yeah, so like in game theoretical terms, the winner-take-all system is the dominant strategy, you’re always going to be better off doing that if the other side is better off doing that. Everybody has to decide together to not do that in order to get to another equilibrium. So there were early attempts to have an amendment that would require something like proportional selection of electors or at least at the district level. Just to be clear, choosing electors by district would be a lot like choosing representatives by district in the House, except they wouldn’t be the same number of districts because you have more electors than you have seats in the House. So states would have to be divided up into Electoral College districts, and each of those districts would choose an elector, and then they would be distributed that way. Is that how that’s it?
Alexander Keyssar: There were two different schemes and that was one of them. One of them was to just to draw entirely new districts. The other scheme, which was administratively simpler, was in fact to use congressional districts and then say the winner of the state election got the extra two.
Will Wilkinson: Yeah, that’s a nice way to do it.
Alexander Keyssar: So there were different schemes. About 1812 into the later 1820s, Electoral College reform was a major issue. It was an annual issue in Washington. On four occasions, the Senate passed constitutional amendments to require district elections and then a couple of those also to reform the contingent systems, basically saying everybody in Congress could vote so it would make it more proportional to population. On four occasions, they got the two-thirds vote and one of those years, they failed to get the two-thirds vote in the House only by a handful of votes. So things could almost change very dramatically in the 1820s.
Will Wilkinson: That would have been a very different system. So why did those keep foundering? I mean, there’s some close calls there, but what was the thing that knocked off those amendments from passing the House?
Alexander Keyssar: I think that there were two things. They were trying to cut a deal. And by the way, the elderly Madison was very supportive of this deal, of changing both pieces of it. There was large state reluctance about districting. It wasn’t wholehearted opposition. It was a tendency. The small states would not consider reforming the contingent system unless there was districting and vice versa. But there was some large state reluctance. But I think that there’s a chronology to this. It’s not just a theoretical thing. They came very close really in about 1822 and they weren’t giving up. I think that they thought that the reform advocates and there were numerous thought, “Okay, we came very close, we’ll get it next time.”
But by 1823, there were a lot of people starting to campaign already for the presidency in 1824 and that was an election where, in contrary to the error of good feeling where James Monroe had run, essentially, unopposed, there are five candidates running in 1824, all of whom said they were Democratic-Republicans. With that contest going on, there’s a pause in the efforts at reform. People start weighing the possibility of reform. Well, how’s that going to affect my candidate or not my candidate? That slows things down. Then the 1824 election, of course, ends up with its own particular. It also goes to the House of Representatives, which chooses John Quincy Adams, who had been the leader neither in popular nor in electoral votes.
Will Wilkinson: Quite a democratic mandate.
Alexander Keyssar: Right, exactly. That produces this big partisan that’s more factional. New parties don’t have a different name, but the Adams people and the Andrew Jacksonites really turn against each other. And although they try again, in 1826, to put together a reform package, the distrust between the Adams people from the northeast and the Jacksonians, who want, above all, to get rid of the contingent system but are not so sure about everything else, they just can’t put the deal back together again. So there’s some questions of timing and what happened in particular elections that also affect this.
Will Wilkinson: I tried to draw that out in a lot of things that I’ve written about that have to do with our electoral structure that the system reflects a history of political contingencies and compromises that have no relevance to anything happening now. Yet the decisions that were made can be decisive in determining who has power and who doesn’t and that seems questionable. For instance, the structure of the Electoral College, when they’re designing it, making these compromises, there’s a couple different axes of difference. There’s small states, large states, free states, slave states, and they have to come up with a certain balance so they can negotiate an agreement that everybody can get around, but those structure of interests just doesn’t exist now, but we still live with decisions that were made with reference to those decisions.
And likewise, just the states that exist, like the Electoral College is keyed to states, states exist largely as compromises. Over time, they’re balancing acts between free and slave states. We have two Dakotas rather than one because the republicans can get away with it and poor presidential elections turn on these just accidents of history that have no normative importance or relevance to our lives. So it seems like you’d want a system that is a little less sensitive to these accidents of time and wouldn’t be so sticky and path dependent on those previous decisions that are based on stuff that doesn’t matter now.
Alexander Keyssar: I know. Absolutely, absolutely. The example that I was thinking of, as you were speaking, was a later crisis in presidential election history and in Electoral College history was, of course, in 1876, and that produced its own very complicated, very messy crisis with…
Will Wilkinson: Who was that race between?
Alexander Keyssar: Between Rutherford B. Hayes and Samuel Tilden, a Democrat of New York. When the votes were all counted, such as they were, Tilden was the leader in the popular vote, although there has to be an asterisk there because there was a lot of suppression of the republican vote in the south already. And then the dispute was that there was 30 odd electoral votes that were in dispute, but the crisis for Congress was that they had no mechanism for deciding whose version and which electoral votes to accept. And in the end, after Congress also deadlocks because of messiness in its procedures. Again, this is something which could haunt us. The Constitution says that the votes we sent shall be counted at a joint session of Congress in the presence of the president of the Senate. It doesn’t say who does the counting. Counted in the presence. It’s a passive voice.
Will Wilkinson: And in a state like Pennsylvania that has a governor of one party and a legislative majority of another party, you could have the governor vet a certain slate of electors and the legislature say, no, this is the set of electors and send them on. And then it’s just like a question of whoever that is that’s doing the counting that is going to have to make a decision about which is the legitimate or valid…
Alexander Keyssar: Exactly, and that’s exactly what happened in 1876. The deal that was cut was political and not principled. It was basically a deal to let Hayes be president for one term and then quietly, the republicans, including Hayes, agreed to withdraw Union troops from the south and end reconstruction. It was a big deal. But there was another spillover from that, which is that in this crisis, about who’s going to count the votes if there are competing slates of electors, and how do you know, Congress came up with this thing called The Electoral Count Act. It took them 11 years after the election to come up with the legislation to try to solve the problem of 1876. And it’s The Electoral Count Act that ends up creating this calendar, which puts time pressure for the counting of electoral votes even today. The Safe Harbor date, I think in the first week of December, that’s all a residue of another crisis that happened almost 150 years ago.
Will Wilkinson: So we had that election in 1878. You mentioned there’s all these attempts to get rid of winner take all. They tend to fail. There’s an interesting episode where Michigan does it, but then other folks get pissed off. Can you tell us about that?
Alexander Keyssar: The Michigan story is fascinating because what was going on in Michigan and most of the Midwest was that the republicans were winning these states, like 55-45, and most years and getting all of the electoral votes although the population of the states were drifting towards being more democratic. For complicated reasons, including the presence of a third-party, the democrats come to power in Michigan around 1890 or 1891. They redistrict the legislature, but they also changed the system. They opt for district elections for president. The legislature supports that completely.
It was notable it was not going to happen, but the reaction of republicans against this… and it has to be said, the idea was popular in other Midwestern states too. When you look at newspaper of the time, there was talk of states being Michiganized, an adjective that I’ve only seen in this context, but states being Michiganized.
Will Wilkinson: It means going back to a district system.
Alexander Keyssar: Right. Now, what was remarkable here is that 15 years earlier, in the mid-1870s, using districts was a very common position of leading republicans. They had really been pressing for it and even some into the early 1880s. But suddenly, in 1891, 1892, this became absolutely anathema. The president of the United States, Harrison, sort of jumps in and denounces this and says it’s absolutely criminal and impossible, that somehow, we should always allocate electoral votes according to boundaries that cannot be gerrymandered, so that would have to be staged.
The Republican Party goes to court in Michigan to try to get this declared to be a violation of the state Constitution. They lose there. And then the republicans in Washington or nationally appeal it to the Supreme Court in the middle of the 1892 campaign or actually towards the end of the 1892 campaign and they get the Supreme Court to grant an expedited hearing on this in October of 1892, with the elections happening in a few weeks. Part of what, again, is remarkable about that is they want the Supreme Court to declare that this practice is unconstitutional when anybody you know with a history textbook would have known that it had happened countless times in the first third of the 19th century.
And they also, setting a model for the present, the republicans defend their position by having the attorney general in court, the solicitor general in court, all of the leading lawyers of the administration defending this absolutely ridiculous position. They lose unanimously in the Supreme Court and then the republicans get back into power a couple of years later in Michigan and punish the democrats severely and prevent them from coming to power for a long time.
Will Wilkinson: Because they just gerrymandered the hell out of the place or once they get it back under control?
Alexander Keyssar: And they reversed the Republican gerrymanders. So the republicans then came back in and just completely gerrymandered everything. I mean, in that state, as was true in a number of states, the districting had been according to traditional county boundaries or other boundaries and the rural areas were Republican, but the cities were growing relatively fast, and the cities were acquiring manufacturing, immigrants, and Democrats. Those people, not surprisingly, wanted both for congressional and state legislative seats, they wanted district boundaries to be redrawn to give them power and influence and the republicans wanted no part of it, and they just gerrymandered, and they kept doing so until the 1960s.
Will Wilkinson: You’re mentioning the rise of cities. Reminds me of something that I read, I guess, a couple years ago. Jonathan Roden, a political scientist at Stanford, has this great book called Why Cities Lose, which talks about how the way people pack themselves densely systematically disadvantages them in the districting system that we have. Even if districts aren’t gerrymandered, density is going to end up giving you a disadvantage. Voters will be less efficiently distributed if they’re close together.
That’s caused some interesting things over history and he has an account in that book of the development of proportional representation in some European countries around the same time at the start of the Industrial Revolution where you’d have a conservative party and a liberal party. But then in the cities, they started having a socialist party that started getting bigger. There’s just like a sensitive point at which the liberals saw that they… and of course, the socialists wanted proportional representation because they were badly underrepresented and they had a lot of numbers, but they didn’t get seats in the various parliaments, and they were agitating for proportional representation.
The vote share for liberal parties was declining, they were losing some to socialist parties or workers parties, they’re losing some to the conservative parties. So they’re like, “Okay, we’re going to be screwed unless we agree with the socialists about proportional representation because then at least we’ll still have seats.” And so if you get the right configuration of circumstances and you add a party, there’s two parties, but all the sudden there’s three and they’re starting to grow, you can get two parties that have an interest in going proportional, and then they can get it in. And then it can become sticky in the same way that these things can get sticky because things congeal around them.
But reading about that I find it interesting, but it’s also depressing when you realize that whether or not a certain reform or certain shift in the basic structure of your political system is feasible is going to depend on, again, these accidents of which parties there are, who has how much power when. Whether or not you can broker a deal doesn’t have anything to do with principle, it’s always just going to have to do with the distribution of power at a particular time and whether the reform benefits the people who have power or some people who have power and others who are losing it, like in that case.
Alexander Keyssar: No, absolutely. I would add one additional twist to it, which is that these arrangements are often put into place or shifted or put together by people who think that something is in their interest in terms of power, but sometimes they’re wrong. Not infrequently, their calculation of what will benefit them turns out to be mistaken.
Will Wilkinson: Like right now, it might actually be in the interest of republicans to get rid of the Electoral College.
Alexander Keyssar: Yes, I agree with that.
Will Wilkinson: Because we’re on the cusp of Texas could potentially flip. Florida could solidify as Democratic. Georgia could flip. And you could get in a situation where it would just be impossible for the Republican Party to get a senate majority or win a presidential election and they might be able to do better with a different structure. But when you have power, you’re always conservative about the structure under which you gained it.
Alexander Keyssar: Right, and in the Republican Party, and we have not had any serious attempts at reform since the late 1970s, in part because of the strength of the Republican Party and because the republican party has been adamant that it thinks that the Electoral College works in its favor. And as I say, it’s not long before that that leading republicans took different positions. After the close 1976 presidential election, Gerald Ford and Bob Dole both supported a national popular vote and they had supported it before that too. It wasn’t opportunistic.
But you had the leaders of the ticket supporting a national popular vote in the ’60s, lots of Republican support for reform. But now, it’s just the 1980s has become an article of faith that the Electoral College helps republicans. I completely agree with you that with the shifts that may be coming that it might not be in their interest. And indeed, I gently suggest that in some of the things that I’ve written in the last few months that if Texas and Georgia turn purple or even blue, winner-take-all is going to look a lot less attractive to the republicans.
Will Wilkinson: Well, yeah, let’s just jump ahead to the 20th century. So there’ve been a number of attempts to change the system in the 20th century. The Senate passed an amendment in the ’50s but then it got smacked down in the house pretty decisively. What happened there?
Alexander Keyssar: Well, that was one of the weirdest. The whole history has its kind of weirdness, but that was one of the weirdest episodes. The impulse to allocating electoral votes in proportion to the percentage of the population that each candidate got within a state comes from two places. It’s sponsored in the Senate by Henry Cabot Lodge Jr., who is a moderate to liberal Republican, who, in fact, personally favored a national popular vote, but he didn’t think that he could really get that through when he thought that this was the next best thing.
He also thought that this would be a way of trying to broaden the Republican Party and give it a chance to pick up maybe some electoral votes in the south where it wasn’t getting any. The co-sponsor in the house was Gossett, was it William Gossett, I forgot, who was a very conservative segregationist representative from Texas. Gossett and his allies, and he had a lot of allies, saw this in completely different terms. They wanted to end winner-take-all in order to reduce the power of large northern states like New York, Pennsylvania, and Illinois, which they believe were wielding disproportionate power in presidential elections. And because African-Americans and some other minorities were swing votes in those states, it was giving those swing voters disproportionate power and, in effect, encouraging the Civil Rights movement. So from their point of view, switching to proportional elections was a means of deflecting or slowing down or deferring and even maybe defeating the Civil Rights movement.
Will Wilkinson: So they felt like they had… I think it was Ed Lee Gossett.
Alexander Keyssar: It was Ed Lee Gossett, yes.
Will Wilkinson: He thought democrats had such a lock on the south that if they moved to a proportional system, they’d still be getting the lion’s share in the south, but if they’d be picking off some in the north and that would be enough to put a break on Civil Rights reforms.
Alexander Keyssar: They’d be picking off enough in the north and it would also mean that the electoral competition in the north would not put such a premium on getting the votes of African-Americans and Jews because those votes weren’t going to tilt an entire state’s worth of electoral votes. Adding another little 2% or 3% is not the same thing, whereas in those days, which were contested at the time. Democratic politicians felt that they had to cater to the African-American population or the Jewish population. Ed Lee Gossett had a number of targets. I mean, he had African-Americans, he had Jews, he had Italians, he had communists. And actually, I think that he thought that they were all somehow related to one another.
And then what happens is that this thing gets passed by the Senate to the surprise of, I think, most observers, gets passed by two-thirds majority because it’s supported both by these southern segregationists and by a lot of northern liberals. Then it gets sent to the house and it was like, oh, let’s take a second look at this.
Will Wilkinson: Then they started to do the math.
Alexander Keyssar: Exactly. They started to do the math and the politics and the northern liberals, including some key republicans, Clifford Case of New Jersey, is a key person there and they start figuring out what the real political content and what the real political implications of this are. The upshot is that it gets stalled for a while in the House, and then it comes up for a vote, and it’s defeated by something like a two-thirds or three quarters vote. So it’s this very anomalous thing where it passes the Senate by a two-thirds vote and is defeated six weeks later by a vote of comparable margins in the House.
Will Wilkinson: That’s fascinating. Was it just that Gossett was right, that it would have had the effect that he wanted and people were-
Alexander Keyssar: It certainly would have had that effect and I think that northern liberals realized that. I think Gossett was also right, was that it would have meant that there might have been more campaigning or more of a premium put on Southern votes than on New York votes and the handful of national African-American leaders at the time who had substantial voice in Washington mobilized themselves and opposed it, and then the northern liberals just ceased supporting it.
Will Wilkinson: We think of Electoral College reform as Electoral College versus a national popular vote, but that’s not it at all for most of the history. Most of the history, it’s about getting rid of the process in which it gets thrown to the House if there’s not a majority of electors or getting rid of the winner-take-all system and doing something that’s more district based. It’s only in the ’60, ’70s, that the idea of a national popular vote really gets steam. So tell us a little bit about those and why they petered out.
Alexander Keyssar: You’re absolutely right that until the 1950s, the dominant reform that’s being put forward is for district elections. It’s to get rid of winner-take-all or to get rid of electors and it’s for district elections or proportional elections. And that begins to change only in the 1950s or early 1960s. Now, a point of backdrop to this, an important point of backdrop is that part of the reason that the idea of a national vote was on the back burner and didn’t go anywhere for all this time was that everybody in politics knew that the South would fiercely oppose a national popular vote.
And we’re talking about not just when there was slavery, when of course that was true, but at the end of the 19th century in the south, what happens, African-Americans are formally enfranchised during reconstruction by the 15th Amendment and that means that states get representation in Congress for their entire black populations. And then 15, 20 years later, depending on the state, they are disenfranchised again. But meanwhile, the states are getting full representation for the black-
Will Wilkinson: So they were doing better than they were in the beginning.
Alexander Keyssar: Exactly. They got a five fifths clause at that point and to switch to a national popular vote would give that up. Knowing that the entire south was fiercely opposed, and it’s not like everybody in the north wanted to do a national popular vote, there’s lots of different opinions, but it just meant that it was a non-starter. That starts to switch in the ’50s as certain proposals are put forward and as district and proportional elections start faltering as alternatives. Interestingly, some of the leading sponsors of a national popular vote are from small states, including William Langer of North Dakota and John Pastore of Rhode Island.
Meanwhile, there are more and more quasi dysfunctional things happening with the Electoral College. The 1948 election threatened to devolve into the House of Representatives. The 1960 election was extremely close and might have produced a split between the electoral vote and the popular vote winners. Meanwhile, there were more and more faithless electors showing up, most of whom were southerners, Southern democrats who didn’t want to vote for Northern Democrats. So there’s a lot of pressure for reform and in the mid-1960s, several things happen simultaneously. One, which is important, is that the Supreme Court issues rulings about apportionment that are built on the principle of one person, one vote. It says that congressional seats and state legislatures have to be built on this, that one person, one vote is the fundamental principle of American democracy.
Now, the Supreme Court decision is explicitly said, well, not about the Senate and the Electoral College, but it’s hard to say, “Here’s this sweeping, benign principle that we’re going to impose everywhere, but it doesn’t apply to the most important elections in the country.” Different individuals and groups start coming around. In the Senate, a young democrat from Indiana named Birchby, he becomes the head of the constitutional amendments subcommittee of the judiciary committee, and he starts taking the electoral college reform seriously. And then he, in the mid-1960s, switches position and moves from being in favor of just getting rid of human electors to favoring a national popular vote. And at the same time, the American Bar Association does a switch in position. The US Chamber of Commerce supports the national popular vote. The major unions, the League of Women Voters, and there’s support throughout the country.
And then what happens at the end of the ’60s, and actually, meanwhile, in 1968, George Wallace has run as a third-party candidate. He doesn’t end up becoming the kingmaker in the election, but he was not too far from it. So that also supported the forces of reform. And then in September of 1969, the House passes a constitutional amendment by an 83% vote, which was just extraordinary. Bipartisan support, even some support in the south.
Will Wilkinson: It seems like it’s just cruising the passage.
Alexander Keyssar: Right, exactly. And then it gets shifted over to the Senate, where prospects looked good, not as rosy as in House, but they look good. Most prognosticators thought that it would be passed. And then it got stalled in the Senate for a year. Thanks, in part, to the fact that the chair of the judiciary committee, James Eastland of Mississippi, wanted no part of this reform. And the Senate Judiciary Committee got consumed in the fall and into the winter by the nomination by President Nixon of two Southern Supreme Court justices, both of whom are rejected by the Senate, which hardens regional feelings.
In the spring, the renewal of the Voting Rights Act of 1965 is up, which also produces splits along the same regional lines. All of this is delaying getting the amendment to the floor of the Senate. And finally succeeds by playing some hardball back to the southerners, getting it to the Senate floor in September of 1970 and there it is met by a filibuster led by Sam Ervin, Strom Thurmond, and several others, and a couple of Midwestern republicans. Roman Hruska from Nebraska plays a role here. They never bring it to a vote and they don’t have enough votes to shut off debate in the Senate. They get about 57, 58 votes and that’s the closest we’ve ever come. There’s an echo of this in the late 1970s, which involves different dynamics, but it’s defeated even more decisively.
Will Wilkinson: One thing that illustrates is that if the question is why do we still have the Electoral College, one big reason is that our amendment process is so forbidding. It’s two-thirds in both houses, three quarters of the states. That’s way more demanding than most countries. Canada is both Houses of Parliament and two-thirds of the provinces as long as they have 50% of the population or something like that, which is just completely reasonable. If you had just both houses of Congress say, “Hey, this is a great idea,” and then two-thirds of the state said, “Thumbs up,” that seems pretty reasonable. But ours is quite a bit more demanding than something like that and so that just makes it hard to reform anything at all, even though it’s clearly not a total barrier because the 12th Amendment did happen, there have been a lot of changes that have been implemented. But if it’s thorny politically, it seems like it just can’t happen.
Alexander Keyssar: Yeah. Look, since the Bill of Rights, which was done just after the Constitution was completed, where we had 17 amendments over 200 years. I mean, that’s a pretty low rate and that is one of the reasons not only in terms of the times that we’ve come close and haven’t quite gotten over the bar, and those times are very significant, but also, arduousness of the amendment process has also, I think, dampened interest.
Will Wilkinson: Yeah, it’s demoralizing.
Alexander Keyssar: Yeah, exactly.
Will Wilkinson: So whether or not anybody’s going to bring it up depends on just what are these contingencies, especially when things get polarized and things do become more polarized, when you talk about how Strom Thurmond is joined by this Nebraska republican to filibuster Birchbuy’s proposal. That’s the golden age of bipartisanship, republicans and democrats working together to prevent progress. But we don’t get that anymore. You don’t get republicans cooperating with democrats to filibuster something. Things are really polarized and so all you have to do is count the number of republican majority and democratic majority states to know whether or not something is even remotely possible. All you have to count is the number of republicans in the House and the Senate. And that just tells you whether or not something is going to go through given people’s attitudes right now. So it just seems pointless, even though that seems incredibly strange, given the fact that we’ve so recently had two elections, in which the popular vote winner lost the electoral vote.
Alexander Keyssar: Picking up on that last point, there was not unanimity but widespread agreement in the years before the 2000 election. Okay, so we weren’t going get Electoral College reform now. But if it ever happens that the popular vote winner doesn’t win the Electoral College and doesn’t become president, then there will surely and automatically be swift and effective decapitation of the Electoral College. Yeah,
Will Wilkinson: I remember that. There’s all this talk about how it would create just like a crippling crisis of legitimacy, that if this happens, it’s going to be just this huge problem, we’re going to have to change it. And then it seems like everybody is like, “Okay, George W. Bush is the President, I guess, they reelected him.” This time the electoral vote and the popular vote sort of aligned. That takes some of the steam out of the air of illegitimacy around the Bush v. Gore thing.
Alexander Keyssar: I’m pretty sure this is correct. It might have changed in the last six months, I don’t know, but there has not been a hearing in Congress on Electoral College reform since 2000. There have been forums that the minority faction of a committee had held, but there has not been a formal hearing since the 2000 election.
Will Wilkinson: It seems unbelievable, but you know what, I think that’s probably going to persist. I don’t think democrats are going to want to touch it. Should the democrats win the White House and a majority in the Senate, one of the major priorities is passing a lot of this democratic reform legislation like beefing up the Voting Rights Act and making the right to vote a more substantial protected right to claw back some of the Supreme Court’s chipping away at some of the protections, weakening gerrymandering, lots of things that they can do, doing some campaign finance reform. There’s a bunch of stuff that they want to do to make the system more democratic, make it harder to disenfranchise voters, make districting, fair, all of this stuff. And I think all of that stuff’s going to take priority.
I feel like even stuff like making Washington, D.C. and Puerto Rico states have priority where that doesn’t take a constitutional amendment, even though it does fundamentally change the structure of the Electoral College or the Senate. So they’ll just directly address it by things like adding some states. But because the amendment process is so forbidding, it just seems pointless because they’re not going to have a two-thirds majority in the conceivable future. There’s no way they can get enough states to sign off on it, so why even think about it, even though it’s such a clearly pressing problem and right now, people are going out of their minds worrying that we’ll have the same crisis again.
Alexander Keyssar: I’m not as convinced as you are that it will be a low priority. I think that you’re absolutely right that there’s going to be a whole package of reforms and the Electoral College will be one of them. Right now, it feels like one of the big ones, but it may slip a little bit. But I’m not certain that it will drop out, but there are a lot of people who are very concerned about it and a number of the democrats in the primaries. Elizabeth Warren most vocally and then Bernie, of course, were very strong about this. That said, of course, the one democrat in the primaries, who not only did not say anything much but who has actually voted in favor of keeping the Electoral College, was Joe Biden, who voted in favor in 1979. But so I’m not sure. I think that the difficulty of amending the Constitution will be a problem.
But I want to go back to one of the things about bipartisanship and how this connects to what we’re talking about here. There was a lot of bipartisan support in the ’60s and even in the ’70s, but more in the ’60s for reform. But I ended up concluding after spending a lot of time looking at the politics of the ’60s, in particular, early ‘70s, there was not a two-party system in the United States in the ’60s.
The two wings of the Democratic Party were really just scampering away from each other and really hadn’t had much in common for 20 years. The Republican Party is shedding its moderate… it’s like a three to four-party system and I don’t think it’s a coincidence. Any of two is not great for statistics, but the two periods in which we’ve come closest to reform, the 1960s and the period from 1812 to 1825 were periods when the party system was in flux. And there wasn’t just the two parties lining up and sort of counting how many for you, and how many for me, and thus we’re for this or against that. I don’t think it’s out of the question that we will end up in a period where the party system is in flux within the next 10 years.
Will Wilkinson: Yeah, I think you’re right. My colleague, Steve Teles wrote a good essay in National Affairs called The Future is Faction and was predicting that both parties are in the process of dividing into two different factions and that’s part of what you’re describing was going on in the ’60s. That’s when you get bipartisanship is when wings of the party start drifting away from each other and then there are going to be various axes along, which one wing of one party in one wing of the other party are going to have things that they’re going to agree about and that’s when you get bipartisan legislation. So it looks like democrats are splitting a little bit between a more centrist and institutionally conservative wing that Biden represents and then there’s the more Elizabeth Warren, Bernie Sanders, Alexandria Ocasio-Cortez side of the party that seems to be picking up steam, and there’s some real divisions and conflicts in there.
One thing that I’ve noticed is that there’s just not one axis of division. It’s not like there’s a left side of the party and a right side of the party. There is a reformist side of the party and a, I just want to say, conservative in the sense of just not being anxious to change the institutions and those are cross cutting. There are very liberal democrats in both the House and the Senate who don’t want to mix anything up. They’re very protective of the norms that exist, the structures under which they got elected. They just are hands off about it.
And so it’s not really a more conservative, more liberal thing, even though the more progressive wing of the party seems to be more uniformly reformist. It cuts in a couple different directions. And who knows what the Republican Party’s going to do? If there’s a wipeout next week, they’re going to be scrambling if they lose everything, other than the Supreme Court, and democrats succeed in passing a bunch of just straightforward pro-democracy legislation. That’s going to strip from them the firewall that they’ve been able to use to win national elections with a minority of voters.
And so the party’s going to have to figure out a new way to win elections and there’s going to be division about that. There is a more Trumpist side of the party. There’s the more traditional side of the party. There’s the Mitt Romney esque Chamber of Commerce side of the party, the more fire breathing nationalist side of the party. So both of them could split up a little bit, so I’m backing up on my pessimism. I’m arguing myself out of it because as I noted before, if the electoral map shifts enough, republicans could suddenly become very worried about the Electoral College.
It’s going to be especially the ones who already thought that the republican coalition needed to broaden, that they needed to pick up greater non-white vote share, greater college educated vote share, greater female vote share, that’s the side of the party that understands that they have to moderate on certain dimensions to just remain competitive. I think those would be the people who are like, “Okay, let’s just try to actually win elections by appealing to voters,” but I think there’ll be a side of the party that is still like… and the more nationalists, the more ethnocentrically white part of the party, who knows that they don’t have a majority, are going to want to figure out mechanisms that will lock them into power and I think there’ll be wary about shifting to popular votes, even if they’re frozen out of the electoral college currently.
Alexander Keyssar: I agree.
Will Wilkinson: If there’s one lesson that you’d like people to take away from your book, what is it?
Alexander Keyssar: There are two lessons or maybe three lessons. I’d say one is to recognize that this institution was created by thoughtful but fallible men, and it was all men in this case, and it was created for an 18th century world, and it was imperfect at its creation. So there’s no devaluing the work of the framers in saying that ought to be changed and many, many people over centuries have believed that it requires profound change.
And I think that the other takeaway, which I take from the book, is that things do change. I mean, yes, you could read my book as a portrait of pessimism. I’ve told the story about 220 years of failed attempts to get rid of the Electoral College. But things do change. Here’s one of my favorites in terms of congressional action. In 1956, in the Senate, a proposal for a national popular vote got 17 votes. By 1970, it got 57. That’s a lot of change in a relatively short period of time.
Will Wilkinson: Well, I think we’re going to undergo a lot of change soon, so I think there’s reasons to have hope. The book is Why Do We Still Have the Electoral College. Professor Alexander Keyssar, thanks so much for coming on. I really appreciate it.
Alexander Keyssar: Okay, thank you. Well, it’s been a pleasure talking.
Will Wilkinson: Model Citizen is brought to you by the Niskanen Center. To learn more about the Niskanen Center, visit niskanencenter.org. That’s N-I-S-K-A-N-E-N center.org. To support this podcast or any of our programs, go to niskanencenter.org/donate.