The Electoral College works. It’s a part of our Constitutional heritage.
That’s what John Hendrickson told Sioux County Conservatives on Wednesday night as he was the May speaker for the group’s Pizza & Policy event.
“If we had a direct national popular vote you would see basically the coasts, the big cities picking who would be our next president,” Hendrickson said. “Which may seem more democratic, but it really isn’t.”
Hendrickson said the Electoral College is one of the most misunderstood aspects of American’s Constitutional system. Fifty-three percent of Americans support getting rid of the Electoral College, according to a recent NBC News/Wall Street Journal poll.
“We hear the term democracy constantly in our political discourse,” Hendrickson said. “And of course we know that our system of government is a republic, not a democracy, but we sort of use those terms interchangeably.”
History of the Electoral College
Article 2 Section 1 of the Constitution defines the Electoral College.
“The Electoral College is simply a group of representatives or electors chosen in each state to cast official ballots for President of the United States,” Hendrickson said. “You basically have 50 separate elections going on. If you count DC, which isn’t a state, you have 51 separate elections for President. The Constitution mandates each state gets as many electors as it has members to the U.S. House and Senate.”
Political parties nominate the electors who will cast electoral votes for that party’s presidential candidate. Some electors are bound by state law. However, there are faithless electors, but they’re very rare.
“When an individual votes, you will see the names of the candidate they’re that you’re voting for, but you’re actually voting for that party’s electors,” Hendrickson said. “To a certain extent, it is a popular election. Forty-eight states and D.C. award entire state of electors on a winner-take-all basis. Whoever wins a majority of Iowa wins Iowa’s electoral votes. Maine and Nebraska are the exception.”
Hendrickson said the Constitution allows leeway to states in that regard.
With 538 possible Electoral College votes, the number to win the presidency is 270.
“In December, the first Monday after the second Wednesday, electoral ballots are cast in state capitols,” Hendrickson said. “This is because states matter. The Constitution did not basically grant all powers to the federal government. It left states sovereign in many areas. One area is the Electoral College.”
There are instances in history where no candidate received the necessary number of electoral votes. John Quincy Adams, Andrew Jackson, Henry Clay and William Crawford all split electoral votes in 1824. Jackson received the most electoral votes, but Adams was elected President.
“Eventually the House voted and each state gets one vote in that process,” Hendrickson said. “Interestingly enough it was Andrew Jackson, the first Democrat president, who called for the abolition of the Electoral College because he said a corrupt bargain had taken place in 1824.”
Jackson accused Adams and Clay of joining together in a conspiracy.
“That’s not necessarily true,” Hendrickson said. “They were more allied politically than they were with Jackson.”
Hendrickson called the Constitution a document of compromises.
“One of the big factors at the Constitutional Convention that met in Philadelphia in 1787 was the issue of large versus small states,” he said. “This becomes very important when we look at the Electoral College. Small states feared that larger states would overpower them.”
The idea of representation was a big debate at the convention. Larger states wanted more representation based on population. Smaller states wanted it to be equal.
“What you get is what they call the Connecticut Compromise or the Great Compromise,” Hendrickson said.
The House of Representatives is based on population while the Senate treats every state equally.
Choosing how the President would be elected created another headache.
“This was a major issue of concern,” Hendrickson said.
The Founding Fathers were suspicious of a democracy.
“These were individuals who came to Philadelphia that were steeped in political tradition,” Hendrickson said. “They had studied past governments. They understood different systems. They were also afraid that if the President was elected on a direct popular vote it would not only create what they would consider mob rule but they also feared if the legislature had control of it the President would become subject to the legislature, which would then violate the key principles of checks and balances and separation of powers.”
The Constitution clearly gave the federal government few and defined powers. The 17th Amendment is an example of a concession made. State legislatures had control of who would serve as a U.S. Senator.
“That was one way states could check the federal government,” Hendrickson said. “That has changed now because of the 17th Amendment. What we get through the Electoral College is not a national referendum, but where states have a role in it. It also protects states in electing a President.”
Hendrickson said the Constitution was designed to keep states sovereign.
“The sovereign states voted,” Hendrickson said of the constitutional convention. “It wasn’t a national referendum to approve the Constitution. It happened state by state.”
Not only is there a movement to abolish the Electoral College, there are some who want to eliminate the U.S. Senate as well. The Senate, they say, provides too much balance.
“Liberals were upset (during the Kavanaugh hearing),” Hendrickson said. “They said why should two Senators from Wyoming have the same power of Senators from California.”
Some want a unicameral legislature based on population.
“You would basically have what the Founders would call the tyranny of the majority,” Hendrickson said. “The Electoral College preserves rights of what we call political minorities. The majority still wins, but minority rights are protected in our constitutional system.”
Arguments against the Electoral College
There are plenty of arguments used by the Left against the Electoral College. One is that the Electoral College is obsolete and undemocratic.
“Their rallying cry is one man, one vote,” Hendrickson said.
One man, one vote, however, is not mentioned anywhere in the Constitution. Instead it is language from the Gray v. Sanders decision.
A national popular vote movement is gaining traction. So far 15 states, mostly blue states, have passed legislation to entire into a compact to tie their electoral votes to the winner of the national popular vote. So far that accounts for 189 electoral votes.
Nevada passed such a bill earlier this week.
“This is kind of scary because in a way it is kind of undermining the Electoral College,” Hendrickson said. “I imagine if they do reach the magic number of 270 there would be some legal challenges to that based on the states and interstate compacts.”
Hendrickson said every vote does count and it is done on a state by state basis.
“The Electoral College is part of this larger idea of federalism within our Constitution,” Hendrickson said. “Remember, the elections take place in each state. When we’re voting, we’re voting for electors even though we’re selecting the presidential candidate of our choice. I can understand that some people get frustrated and think because their candidate didn’t win then their vote isn’t counted.”
A Republican living in a predominately Democrat area or vice-versa would not feel great on election night, he said.
“It could be worse,” Hendrickson said. “We could be like Europe and then have all kinds of political parties, which I don’t think is a very good system.”
Ultimately the Electoral College provides certain checks and balances and protects minority rights from majority rule. A direct national popular vote would cause candidates to focus on one group of voters — urban voters.
“Do you think presidential candidates would come to Iowa under a direct national vote? No,” Hendrickson asked. “Because of the Electoral College, people running for President have to build coalitions. They have to build national coalitions in order to win.”
Another criticism of the Electoral College is that it was designed to protect slavery. However, when the Great Compromise was made, slaves counted as three-fifths representation. That was the compromise between the north and the south.
“What we need to keep in mind that in 1787-1788 slavery was in every state, obviously it was more dominant in the south,” Hendrickson said. “It also did not give slave-holding states an advantage.”
Virginia’s population was large even without the three-fifths compromise.
“The Electoral College made no difference deciding the presidency during the 36 years before the Civil War,” Hendrickson said.
Adams, Hendrickson said, was an abolitionist and he won the 1824 election. In 1860 Abe Lincoln was only on the ballot in northern states and he won the electoral vote. That triggered the southern states to start leaving.
So why preserve the Electoral College?
“Because it works,” Hendrickson said. “When you take an objective look at it through history, the system works. We’ve had some close elections, but in the end those elections are always decided.”
It’s also constitutional.
“It fits within the framework of what the Founders designed,” Hendrickson said. “Our Constitution provides the system federalism. That means there’s a role for states within our Constitutional government — there are checks and balances between the three branches of government and there’s separation of powers.”
A national popular vote would make for a disaster in terms of narrow decisions.
“How many remember the 2000 election of Bush v. Gore,” he asked. “Just imagine all the recounts that would happen under a direct national popular vote. It would be Florida times 1,000. That’s not a good situation.”
National coalitions were used in 1936 by Franklin Roosevelt, in 1968 by Richard Nixon and in 1980 by Ronald Reagan. Donald Trump rebuilt a national coalition in 2016.
“Trump did something that no one really thought was possible is that he sort of almost resurrected that Nixon/Reagan coalition,” Hendrickson said. “He attracted blue collar workers, manufacturers and a lot of labor votes as well and farmers. He broke the famous blue wall Democrats had. He won places like Iowa, Wisconsin, Ohio, Pennsylvania. These are swing states. We probably wouldn’t have swing states if we had a direct national popular vote because in a sense the larger population areas, the larger cities would be controlling the results of the election.”
Hillary Clinton won the popular vote in 2016, but Hendrickson said that year’s election provided a perfect example of smaller states having their voices heard.
The Electoral College offers stability and certainty.
“It forces competition in elections,” he said.
There are other pieces of the Constitution that are not democratic.
“A President can veto a bill passed by a majority of representatives,” Hendrickson said. “Federal judges can strike down laws.”
Hendrickson said in 1912 Theodore Roosevelt argued people should have the right to have a national referendum on court cases.
“It could be dangerous,” Hendrickson said. “The problem with a democracy is, I hope I don’t offend anybody when I say this, but just imagine if a strong gun control bill is passed that undermines the Second Amendment and people had the right to either approve or disapprove that through a national referendum. Democracy can go either way — that’s what the Founders were trying to protect against. In our system the Founding Fathers wanted to make sure tyranny of majority does not happen.”
There’s no doubt the debate will continue.
“This debate is not new,” Hendrickson said. “But I’m afraid that the majority of these Democrats running have made statements favoring the abolition of the Electoral College. This I believe will be detrimental for our Republic if that happens.
“As I mentioned, this is not just about electing the President, it’s about our Constitutional system. Limited government, federalism, equal representation and separation of powers. Those were unique mechanisms that made our Constitution. Is it perfect? No. But the Founding Fathers never said we created a perfect system. They understood human nature was flawed, but we have a system that works very well and we need to be aware of this issue.”