The long lost rules of the electoral college

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  1. Wolfstrike

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    The Original Electoral College Design
    by Gary Alder

    The term Electoral College is actually not used in the Constitution or in the writings of the Framers. We do find the following in the definitions of the words electoraldef and collegedef in Noah Webster’s 1828 dictionary:

    ELECTORAL Pertaining to election or electors. The electoral college in Germany consisted of all the electors of the empire, being nine in number, six secular princes and three archbishops.

    COLLEGE In its primary sense, a collection or assembly. Hence,

    1. In a general sense, a collection, assemblage or society of men, invested with certain powers and rights, performing certain duties or engaged in some common employment or pursuit.

    When I use the expression electoral college in this article I mean the system of using presidential electors to choose the candidates for president of the United States, or the aggregate of those individual electors, as the context may require. In some cases where the context might not lend itself to perspicuity I use the expression electoral system. The Electoral College in the United States seems to correspond to the common definition as described by Noah Webster with the exception that the United States electors are only appointed temporarily while the electors in other countries appear to be more permanent in nature.

    The original version of the electoral college functioned so differently than what we have today that to understand it we need to forget most of what we know about the electoral college and start with a clear mind. To begin with let us describe the general structure of any election.

    The Structure of an Election

    There are three phases in any election process. They can be described as:

    1) Nomination-the possibilities

    2) Candidate Selection-the probabilities

    3) Final Vote-the ultimate selection

    The Original Version of the Electoral College

    Let us review the purpose and function of the electoral system described in Article II of the Constitution in terms of these phases. The design of the first version of the Electoral College can be summarized as follows:


    1. A certain number of wise men from each state were to recommend the best candidates for President (the nomination process).

    Candidate Selection

    2. Candidate selection was to take place by the counting of the nominations. This was to happen in a combined meeting of the House and the Senate. If the above nomination were overwhelmingly in favor of a particular candidate he would become President, bypassing the deciding vote of the House of Representatives.

    Final Vote

    3. In the absence of an overwhelming nomination for a particular candidate, the President would be chosen from up to 5 favorites of the Electors by the House of Representatives with each state casting 1 vote.

    A more detailed explanation of the system is warranted here. This will be done in terms of the separate phases to show exactly how ingenious the plan was. We will start with the Nomination Process:


    1. A certain number of wise men from each state were to recommend the best candidates for President (the nomination process).

    Article II Section 1 of the Constitution explains the process as follows:

    Each state shall appoint, in such manner as the Legislature thereof may direct, a number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an Elector. [Article II Section 1 Clause 2]

    Notice that only the number of Electors for each state is determined by following these instructions. The actual senators and representatives in office are precluded from involvement. The Framers were very careful to be sure that no special privileges were to be given in the nominating process to support the incumbent advantage in either the position of president and vice-president or to those then serving in the House of Representatives or the Senate since these bodies would cast the final votes for the President and the Vice-President respectively. In fact any elected official or federal government employee is also precluded from being an Elector. They really wanted to protect against setting up a system for any kind of political payoff. So there was one body to nominate the presidential candidates (the Electors), and a separate body to elect the President (the House of Representatives). The vice-president would always be the remaining candidate with the most electoral votes after the president was selected. Only a tie in this situation would be decided by the Senate.

    An electordef is defined by Noah Webster as follows:

    ELECTOR One who elects, or one who has the right of choice; a person who has by law or constitution, the right of voting for an officer. In free governments, the people or such of them as possess certain qualifications of age, character and property, are the electors of their representatives &c, in parliament, assembly, or other legislative body. In the United States certain persons are appointed or chosen to be electors of the president or chief magistrate. [Noah Webster 1828]

    We can plainly see that in the general sense, anyone who is qualified to vote is an elector. However there is a special position in the United States selected to vote for a presidential candidate which nowadays is the common way we use the word elector-a presidential elector. The question remaining is who actually should nominate or determine who are to be the candidates. Let us look at Article II Section 1 Clause 3 to answer the question.

    The Electors shall meet in their respective states, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same state with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. [Article II Section 1 Clause 3]

    This is the end of the Electors’ term of service – one meeting of all the Electors of a state. It is significant to note that there was to be no connection with the Electors of other states, no campaigning, no trading of votes for future influence or supporting your program if you support mine. They were to give it their best shot first because that was the only shot they got.

    Do we have any evidence that there was a pre-printed ballot? Of course not. That would pre-suppose a separate nominating process. Each Elector wrote down two names. In other words they named or nominated two candidates for president. Every time we write-in a candidate we nominate that candidate. Pre-printed ballots would be proof that there was a separate nominating process. If there were to be a separate nominating process and that process were not described in detail in the Constitution that fact alone would be evidence of a serious design flaw in the Constitution.

    I have found that mentioning the word nominate seems to excite some degree of opposition and resistance among those with whom I have discussed this. When we examine more closely the process we see that originally it was to be a nomination. This fact is further substantiated by the statements of Connecticut Senator Uriah Tracy made during the Senate debate on the 12th Amendment Dec. 1, 1803. Mr. Tracy actually uses the word nominate when he said “The Electors are to nominate two persons, of whom they cannot know which will be president;” [The Founders' Constitution p. 464] Later in the same speech Mr. Tracy also says “As the Constitution stands each Elector is to write the names of two persons on a piece of paper called a ballot.” [The Founders' Constitution p. 467]

    In fact the Electors met in their separate states on the same day to avoid the chance of collaborating with the Electors from other states during this process. It appears that the Electors were able to freely discuss among themselves which individuals were to be nominated by their own state. They were not however, forced to conform to the nominations of other Electors from their state. There was no winner-take-all attitude at this level. That would be contrary to the concept of nomination. Each individual Elector’s decision of whom to nominate was preserved and respected. The Electors were not to be influenced by men from other states in this function. In this way, the “will” of their state in this matter was also preserved. To protect against the anticipated bias that the Electors would have in favor of only choosing men from their own state, each Elector could nominate no more than one individual from his state. The list of all nominees and the number of votes for each was then transmitted to the Seat of Government for the candidate selection and voting processes.

    In Federalist No. 68 Alexander Hamilton explains and defends the Electoral College system:

    March 12, 1788
    To the People of the State of New York:

    The mode of appointment of the chief magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. [Little else in the Constitution has escaped criticism and even received approval from those opposed to its passage.] The most plausible of these, who has appeared in print, has even deigned [thought worthy] to admit that the election of the president is pretty well guarded. I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. [It sounds like Mr. Hamilton thinks it is a pretty good method.] It unites in an eminent degree all the advantages, the union of which was to be desired.

    Although the final determination to use the electoral college process to obtain candidates by Mr. Hamilton’s account seemed to be satisfactory and pleasing to all whether in favor of or opposed to the Constitution and its other provisions, the debate in the Constitutional Convention over how to elect a president was one of the most difficult problems that was addressed in the convention.

    It was desirable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. [This is not to be confused with a vote of the people after hearing the propaganda of a campaign.] This end will be answered by committing the right of making it, not to any preestablished body [such as a political faction or party], but to men chosen by the people for the special purpose, and at the particular conjuncture.def
    It was equally desirable, that the immediate election [Although Mr. Hamilton does not use the word "nomination" the phrase "immediate election" certainly shows that this is a preliminary selection rather than a final one. If the final choice were to be the sense intended, it would be called a final, ultimate or mediate election] should be made by men most capable of analyzing the qualities adapted to the station, [as opposed to the masses listening to the propaganda of political campaigns] and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice. A small number of persons, selected by their fellow-citizens from the general mass, [not part of or tied to government] will be most likely to possess the information and discernment requisite to such complicated investigation. [Wise men were to be chosen to select or nominate the candidates]

    It was also peculiarly desirable, to afford as little opportunity as possible to tumult and disorder. [Such as campaigning, making false claims about one's own virtues, and telling of the real or imagined faults of an opponent] This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency [responsibility] in the administration of the government, as the president of the United States. But the precautions which have been so happily concerted [working together] in the system under consideration, promise an effectual security against this mischief. The choice of several, to form an intermediate body of Electors [between the people and the candidates], will be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes. [tooting his own horn] And as the Electors, chosen in each state, are to assemble and vote in the State, in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, [campaigning] which might be communicated from them to the people, than if they were all to be convened at one time, in one place.

    The framers were opposed to demagoguery or rabble rousing. Rather than have one individual that is seeking his own power and advantage, have people who are charged with the responsibility of trying to find worthy candidates. Although there was room for discussion between the Electors of each state, each state’s ballot of nominees was to be independent of the other states’ choices. In other words, at this point of the process no debates were invited to make one state’s choices coordinate with those of any other state or group including political parties or foreign powers. This also demonstrates that the primary concern was to get the best candidates possible in the opinions of the Electors of each state. This certainly is the nature of a nomination process rather than a final choice. There was no requirement that all votes from a state go to the same candidates.

    Nothing was more to be desired than that every practicable obstacle should be opposed to cabal,def intriguedef and corruption. These most deadly adversaries of republican government might naturally have been expected to make their approaches from more than one quarter, but chiefly from the desire in foreign powers to gain an improper ascendantdef in our councils.

    How could they better gratify this, than by raising a creature of their own to the chief magistracy of the union? But the convention have guarded against all danger of this sort, with the most provident and judicious attention. They have not made the appointment of the president to depend on any preexisting bodies of men [including current office holders and political parties] who might be tampered with beforehand to prostitute their votes; [for personal gain or agenda] but they have referred it in the first instance to an immediate act of the people of America, to be exerted in the choice of persons for the temporary and sole purpose of making the appointment. [The Electors were to have no connection with the outcome of the choices they would make so they could not be bought from any side.] And they have excluded from eligibility to this trust, all those who from situation might be suspected of too great devotion to the president in office. No senator, representative, or other person holding a place of trust or profit under the United States, can be of the numbers of the Electors. [This is designed to reduce the bias toward the incumbent to favor a more objective approach.] Thus, without corrupting the body of the people, the immediate agents in the election will at least enter upon the task, free from any sinister bias. Their transient [temporary] existence, and their detached situation, [each state meeting separately] already taken notice of, afford a satisfactory prospect of their continuing so, to the conclusion of it. The business of corruption, when it is to embrace so considerable a number of men, requires time, as well as means. [It would take time and money to corrupt the process.] Nor would it be found easy suddenly to embark them, dispersed as they would be over thirteen states, in any combinations, founded upon motives, which though they could not properly be denominated corrupt, might yet be of a nature to mislead them from their duty. [Remove even the temptation or hint of bribery or corruption.]

    Another and no less important desideratum [Latin - That which is desired] was, that the Executive should be independent for his continuance in office on all, but the people themselves. [He was not to be beholden to any special interests.] He might otherwise be tempted to sacrifice his duty to his complaisancedef for those whose favor was necessary to the duration of his official consequence. [Those who could keep him in office.]

    This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice. [Rather than depending upon party or other elected officials]

    All these advantages will be happily combined in the plan devised by the convention; which is, that the people of each state shall choose a number of persons as Electors, equal to the number of senators and representatives of such state in the national government, who shall assemble within the state, and vote for some fit person as president. …

    The whole design and purpose of the Electoral College was to get the individuals most fit for the office of president nominated. The Electors were only to be involved in the first phase of the process. Presidential candidate nomination was the prerogative of the Electors. They had no right, duty, or responsibility to be involved in the other 2 phases of the process. Designating which of the nominees was to be only a vice presidential choice was not part of the prerogative of the Electors. After the Electors completed their task of nomination and the results were tallied and sent to the seat of government it was time to move on to step 2 of the process which included what I sometimes refer to as the shortcut. It is described as follows:

    Candidate Selection

    2. Candidate selection was to take place by the counting of the nominations. This was to happen in a combined meeting of the House and the Senate. If the above nomination were overwhelmingly in favor of a particular candidate he would become President, bypassing the deciding vote of the House of Representatives.

    In the Constitution it is described as follows:

    The President of the Senate shall, in the Presence of the Senate and House of representatives, open all the Certificates, and the Votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of Electors appointed; [Article II Section 1 Clause 3]

    The counting of the electoral votes determines the field of candidates to be forwarded to the House for their final selection.

    A plurality of electoral votes is not sufficient to bypass the election process by the House of Representatives; a majority of the number of Electors is required. This is not the likely result of a nomination process where there is only one ballot done on the same day separately in each state, unless one individual is so much better qualified than all others that it was obvious to the majority of all the Electors.

    Another way of describing this phenomenon is probably warranted at this point. If the individual nominated with the highest number of votes was nominated by over half of the Electors, no final election is needed. A similar logic is used in our modern party conventions to avoid a primary election for popular candidates.

    In this situation it seems only intuitive and obvious who should be president. This was the case with our first president, George Washington. In fact, George Washington was unanimously nominated by the Electors in both terms of his presidency. No other president has shared that distinction. John Adams, who was vice-president to George Washington, received a majority of electoral votes in the election of 1796.

    Technically there could be up to three individuals who could tie with a vote from over half of the Electors because each Elector casts 2 votes. Speaking only of the number of votes, a president could be elected using the shortcut with just over 25% of the votes cast. This makes it sound not quite as impossible as one might otherwise presume. This is to say that an Elector’s second choice on the ballot is as valid in the vote counting as is his first choice.

    Alexander Hamilton describes in Federalist 68 this same concept although with some inaccuracy (as a somewhat rigorous study of the above paragraphs show.)

    Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the president. [Federalist No. 68]

    Now let us discuss the election process in the House of Representatives

    Final Vote

    3. In the absence of an overwhelming nomination for a particular candidate, the President would be chosen from up to 5 favorites of the Electors by the House of Representatives with each state casting 1 vote.

    There are 2 criteria that must be met for a candidate to have what we term as an overwhelming nomination:

    1) Over half of the Electors must have written his name on their ballot


    2) He is the candidate who has the highest level of confidence (not tied).

    …and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each state having one vote; [Article II Section 1 Clause 3]

    Notice that if the election is to take place in the House, the field of candidates will be 2 or 3 or 5. If the highest number of electoral votes is tied with a number who have received a vote from a majority of the Electors the number will be 2 or 3. Without such majority, the number of presidential candidates will be 5. These are then voted on by the House of Representatives, with each state casting 1 vote.

    There are some significant details here that require some further examination. Even though the Representatives vote, the small states have as much say as large states when the election goes to the House. This demonstrates that the office of president is not to be confused with a king of the people. He is a president of the states. A majority of the states must vote for the president not merely a plurality. This is a majority of the states, not a majority of the population, or a majority of the Representatives.

    To summarize the original design of the system:

    1) The nomination process was accomplished by the Electoral College and amounted to a weighted vote. The reason for using the number of senators and representatives rather than only the number of representatives was to give the smaller states more say. In other words, the more populous states have a larger voice although not a proportionally larger voice as to who the candidates for president are to be.

    2) The candidate selection was to take place as the nominations were opened and counted in the joint meeting of both houses of Congress. An overwhelming support for a particular candidate coming from the Electors who were not permitted to collude between states was taken as the will of the people and was not to be overridden (the shortcut).

    3)Unless a majority of the total number of Electors nominated the same individual, as determined in the joint meeting, the field of up to 5 candidates would go to the House of Representatives where each state would have an equal vote for the president regardless of population.

    When we were kids our mothers taught us that if we had a cookie or a candy bar and were to share that with a friend we would cut it in half. Our friend would then get to choose his piece first. It is only fair. This is analogous to the situation with the electoral system when it goes to the House. The Electors as representatives of the people choose the candidates. Then the states decide which of those candidates becomes president.

    One other important detail needs to be explained with regard to the final election in the House. If a state has an even number of Representatives or if by abstaining from a vote one of the Representatives effectively puts a state in that position, a state may come up with a tie and negate its vote.

    Now to return to Alexander Hamilton in Federalist 68:

    But as a majority of the votes might not always happen to centre on one man and as it might be unsafe to permit less than a majority to be conclusive, it is provided, that in such a contingency, the house of representatives shall select out of the candidates, who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office.

    It is apparent that the framers were overly optimistic in expecting a consensus of the nominations coming from the Electoral College. Perhaps they thought that George Washington would always be in that office or there was a belief that someone else with an equivalent esteem would rise in the system. In the opinion of the author there is no indication that the selection of a president by the House of Representatives was initially thought to be a big problem even though we often consider it to be so nowadays.

    The process of election affords a moral certainty, that the office of president, will never fall to the lot of any man, who is not in an eminent degree endowed with the requisite qualifications. [If you take the word of the losing presidential candidate (the words used while campaigning using our current methods of election) the above statement is adequately and ably refuted.] Talents for low intrigue and the little arts of popularity may alone suffice to elevate a man to the first honors in a single state; but it will require other talents and a different kind of merit to establish him in the esteem and confidence of the whole union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. [The method of selection is wholly to be credited with this prediction.] And this will be thought no inconsiderable recommendation of the constitution, by those, who are able to estimate the share, which the executive in every government must necessarily have in its good or ill administration. Though we cannot acquiesce in the political heresy of the poet who says:

    “For forms of government let fools contest-

    That which is best administered is best.”

    -yet we may safely pronounce, that the true test of a good government is its aptitude and tendency to produce a good administration.

    This speaks to the design of the electoral process as designed in the Constitution. In other words get a good administration with good leaders time after time by the process rather than by politics or just plain luck.

    The vice-president is to be chosen in the same manner with the president; with this difference, that the senate is to do, in respect to the former, what is to be done by the house of representatives, in respect to the latter.

    The appointment of an extraordinary person, as vice president, has been objected to as superfluous, if not mischievous. [Why would anyone object to having the second most qualified person in the nation as the vice-president?] It has been alledged, that it would have been preferable to have authorized the senate to elect out of their own body an officer, answering that description. But two considerations seem to justify the ideas of the convention in this respect. One is, that to secure at all times the possibility of a definite resolution of the body, it is necessary that the president [of the Senate] should have only a casting vote. And to take the senator of any state from his seat as senator, to place him in that of president of the senate, would be to exchange, in regard to the state from which he came, a constant for a contingent vote. …

    In other words if a Senator were chosen as the President of the Senate he could only vote as a tie breaker rather than as a representative of his state. His state therefore would be under represented. If you consider the senators as just another body for passing national legislation or as additional representatives of a party, you wouldn’t get the critical nature of this argument.

    …The other consideration is, that as the vice-president may occasionally become a substitute for the president, in the supreme executive magistracy, all the reasons, which recommend the mode of election prescribed for the one, apply with great, if not with equal, force to the manner of appointing the other. It is remarkable, that in this as in most other instances, the objection, which is made, would be against the constitution of this state. We have a Lieutenant Governor, chosen by the people at large, who presides in the senate, and is the constitutional substitute for the Governor in casualties similar to those, which would authorise the vice-president to exercise the authorities and discharge the duties of the president. [If this concept works for one state (New York) why wouldn't it work for the national position?]

    PUBLIUS [Federalist No. 68]

    Last edited: Nov 1, 2012

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