After the 1787 Constitutional Convention had concluded in Philadelphia, 81-year-old Benjamin Franklin was reputedly asked, “Sir, what form of government have you given us?”
“A republic,” Franklin supposedly replied. “If you can keep it.”
While this account is of dubious authenticity, Franklin’s point is well taken. A republic is very different from a democracy. And the system put in place to elect the president every four years – the Electoral College – is a profoundly undemocratic institution. Some critics even argue the way in which the Electoral College operates makes it possible for a candidate to steal a presidential election.
Then-future president George Washington presided over the Constitutional Convention in the sweltering summer of 1787. Other participants included James Madison, Benjamin Franklin, and Alexander Hamilton.
Madison, the principal drafter of the constitution, was hardly a supporter of democracy. He contended that democracies “have ever been spectacles of turbulence and contention; have ever been incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” Jefferson wrote that, “A democracy is nothing more than mob rule, where 51 percent of the people may take away the rights of the other 49.”
Clearly, it was the founders’ intention to set up a system of government to minimize the possibility for mob rule or dictatorship. The foundation of this system is federalism: a system of shared sovereignty between the states and central government.
If there is a direct conflict between state and federal law, federal law prevails. But the Bill of Rights accompanying the constitution includes the Tenth Amendment, which holds:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Electoral College is a fundamental aspect of shared sovereignty. It guarantees that the elected president will have broad support over the entire geographical range of the country, not just large population centers, especially on the coasts. It’s a fundamental way states are respected as sovereign entities.
When the Constitution was framed, the northeastern states had the largest proportion of America’s population. The representatives of most densely populated states at the time – New York, Pennsylvania, and Massachusetts – ratified the Constitution fully aware that the votes of their citizens would be diluted in a presidential election. Today, an individual vote from rural state like Wyoming has 3.6 times as much weight as one from California.
The Electoral College can also be manipulated, as the presidential election of 1876 illustrated. A contentious nomination process began when Republican President Ulysses S. Grant declined to seek a third term. Instead, the Republicans nominated Ohio Governor Rutherford B. Hayes. On election day – November 7, 1876 – he faced Democrat Samuel J. Tilden, the governor of New York.
It was a bitter, mudslinging campaign. The election occurred in the midst of a severe depression that had begun in the fall of 1873. Democrats chafed at the pervasive corruption in Grant administration as well as the continuing military occupation of parts of the south in the aftermath of the Civil War. Republicans countered by calling for voters to avenge the deaths of soldiers during the war. A popular Republican slogan was, "Not every Democrat was a rebel, but every rebel was a Democrat."
The 1876 race resulted in the highest voter turnout in American history, with 81.8% of eligible voters casting a ballot. Tilden won the popular vote by a margin of 264,000 votes, eking out a 51% majority of the total votes cast. Hayes won 48% and third-party candidates won 1%.
In the initial count of electoral votes, Tilden appeared to be the winner: 184 to 165. But there were 20 disputed votes. In Florida, Louisiana, and South Carolina, both major parties submitted competing slates of electors. In Oregon, one elector was declared illegal.
In Florida (with four electoral votes), Louisiana (eight), and South Carolina (seven), Tilden won the popular vote. But in these and other formerly slave states, the election was plagued by violence against Republican voters – especially black, newly enfranchised former slaves.
There was fraud as well, facilitated by widespread illiteracy. Many ballots were printed with symbols of each party to help illiterate voters choose their preferred candidate. Some ballots were printed with the Republican symbol, Abraham Lincoln, supposedly meant to represent Hayes, but instead corresponding to a vote for Tilden, the Democratic candidate. And in South Carolina, 101% of eligible voters supposedly came to the polls.
Ultimately, all 20 of the contested electoral votes were awarded to Hayes. He now had a 185 to 184 electoral majority.
Democrats declared fraud. Unrest flared in Washington, D.C. and throughout the country. In the face of a constitutional crisis, Congress formed an Electoral Commission to pick a winner. The commission consisted of 15 members: five each from the House and the Senate, and five from the Supreme Court.
In a series of 8 to 7 votes, the commission awarded the disputed votes to Hayes. Democratic leaders accepted those results only with a quid pro quo: the federal government would withdraw troops from the last states still under military occupation; South Carolina and Louisiana. Their removal helped pave the way for the Jim Crow era, with strict segregation and the systematic disenfranchisement of former slaves. Within a few years, the majority of former slaves and their children in the former confederate states lost their eligibility to vote. Millions of black voters in these states didn’t gain full voting rights until the 1960s.
Did Hayes steal the election? It’s impossible to say for sure. But if former slaves who stayed away from the polls to avoid violence had managed to vote, Hayes would have probably won the popular vote in states with a majority black population: Louisiana, Mississippi, and South Carolina.
The Electoral Count Act of 1887 attempted to set up a process to name a winner if a state submitted competing sets of electors. But the law is ambiguously drafted. One school of thought has concluded that a state’s electoral votes shouldn’t be counted at all. Another interpretation is that Congress would count the electoral slate backed by the state’s governor.
In 1933, the 20th Amendment came into effect, giving Congress more power to establish rules for counting electoral votes and resolving disputes. But states still have nearly unfettered authority to choose the electors that vote for the president.
With this background in mind, how could Donald Trump or Joe Biden steal the election? Also consider that the last time the Supreme Court ruled on an issue involving presidential elections, in the disputed presidential election of 2000 (Bush vs. Gore), it held that a state could “take back the power to appoint electors” anytime. Thus, any state could change its law authorize its legislature, not its voters, to decide which electors will choose the next president.
The party appearing to be losing the election would be most likely to take this approach. In the 2020 election, Republicans, with their candidate trailing in national polls, could exercise this authority in closely contested states with Republican-controlled legislatures and Republican governors. Florida, Georgia, and Ohio are three examples. But there’s nothing to stop Democratic-controlled states from using the same tactic if their candidate were losing.
The Electoral College, as The New York Times correctly observes, “is not fair, not equal, and not representative.” But the only way to abolish it in favor of fully democratic elections would be with a constitutional amendment. That would require the approval of three-quarters of the 50 states – 38 in all. That seems wildly unlikely, since smaller and more rural states won’t want to lose the outsized influence they have in presidential elections.
But there is one important way to democratize the electoral college without abolishing it. And that is for states to enact legislation to establish proportional representation of electors, a practice now in effect only in Maine and Nebraska. Both states award two electoral votes to the popular vote winner of the state, with one vote each allocated to the popular vote winner in each individual congressional district. But a more straightforward way to implement proportional representation would be for candidates to receive the same proportion of electors as the number of votes they received.
My hotly contested home state of Arizona, with 11 electoral votes, is an example. Polling data tracked by Real Clear Politics projects a narrow Biden victory. But in a system of proportional electors allocated by popular vote, if Biden wins by a razor-thin margin, he would get six electoral votes. Trump would get five. And vice-versa.
Among other shortcomings, a proportional system wouldn’t eliminate the possibility that a candidate with the largest number of votes could lose the presidential election. Still transitioning into a proportional representative Electoral College will ensure every voter is heard, without the destabilizing dangers of direct democracy the founders warned us about. And it would make it much less likely either party could “steal” a future election.