Article 2, Section 1 of the United States Constitution says, in part:
The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, 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.
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists 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; — 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 for President, shall be the President, if such number be a majority of the whole number of Electors appointed;
The Founders had two reasons to create the Electoral College. The first was out of concern that without a buffer between the population and the selection of the President, a tyrant could come to power through manipulation of public opinion. In Federalist 68, Alexander Hamilton wrote:
It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, 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, will be most likely to possess the information and discernment requisite to such complicated investigations. It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government as the President of the United States. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief.
In short, Hamilton and other founders did not trust the public to make the right choice and felt that, as a group that met infrequently, the Electoral College was at lesser risk of being manipulated by forces either internal or external to the United States.
The second reason for the Electoral College was to provide smaller states with greater power in deciding Presidential elections than they might have with the popular vote. With the exception of Maine and Nebraska, both of which use the Congressional District Method of allocating their Electoral College votes, all states allocate their votes through the winner-take-all method. Without the Electoral College process, Presidential elections could and likely would be decided by the most populous states, and more specifically by those states with significant urban and suburban communities surrounding large cities like New York, Chicago and Los Angeles. The Electoral College process marries the one-man-one-vote principle with the federal principle that the states created the federal government. If prevents the balkanization of the country that could occur with the most populous areas deciding all Presidential elections. It prevents the tyranny of the majority.
Yesterday, the Massachusetts legislature approved a bill that would give the state’s Electoral College votes for president to the winner of the national popular vote. If the bill is signed by Governor Deval Patrick as anticipated, Massachusetts will join New Jersey, Illinois, Maryland, Washington and Hawaii, all of which have passed similar legislation, and bring the total number of Electoral College votes decided by this method to 73. If states possessing a majority of the electoral votes (or 270 of 538) enact such laws, the candidate winning the most popular votes nationally would be assured a majority of the Electoral College votes, no matter how the other states vote and how their electoral votes are distributed. This movement against the Electoral College is being led by a group called National Popular Vote, which has slowly built support for the idea since George W. Bush won the presidency in 2000 over Al Gore, despite Gore having won the popular vote.
Massachusetts’ House Speaker Robert DeLeo’s office issued this statement in support of the measure:
“The National Popular Vote measure will ensure that our presidential elections reflect the true will of the people. Speaker DeLeo is pleased that the House has enacted this measure to give each voter equal say in the election of our president.”
What this statement fails to acknowledge is the possibility that should the national popular vote go to the candidate not favored by Massachusetts voters, all of the state’s electoral votes would still go to that candidate, effectively nullifying the entire popular vote of the state. Under such a scenario, one can easily image that measures would quickly be introduced to reverse the NPV bill. This bill raises not only a constitutional question regarding equal protection, but also a logistical question regarding certification of the national popular vote, for which there is currently no process. Radio talk show host Mark Levin points out that the concept of protecting the varied and diverse interests of all states, which is behind the Electoral College process, was also behind creation of a Senate comprised of two representatives from each state. If we are to invalidate the Electoral College, should we also abolish the Senate and the protections that come with it?
Nullification of the Electoral College process through amendment of the Constitution is highly unlikely given the requirement for ratification by 3/4 of the states. Similarly, it would seem improbable that NPV laws could be passed in states representing 270 electoral votes, though improbable is not impossible. Each state has the right to decide how their electoral votes will be allocated, but do the citizens of Massachusetts and other states allocating their votes in this manner fully understand the implications of these changes passed by their state legislators? Do they recognize this as an attempt to effectively amend the United States Constitution without following the formal amendment process? Do the citizens of Maryland, Washington and Hawaii understand that they are abdicating their role in the Presidential election process to the ten to twelve most populous states in the union, a list they will likely never be on?
“If the manner of it be not perfect, it is at least excellent.” Alexander Hamilton, Federalist No. 68
The Brilliance of the Electoral College, Jeff Jacoby, The Boston Globe, July 16, 2008