Electoral Time Bomb

The Electoral College is a Constitutional crisis waiting to happen.

The Electoral College is a Constitutional crisis waiting to happen.

Electoral Time Bomb

The Electoral College is a Constitutional crisis waiting to happen.

Electoral Time Bomb

And so, after all the sturm and drang, we have chosen our new leader. Donald J. Trump will raise his medium-sized hand on Jan. 20, 2017 and become our 45th president. Let’s all hope he’s a great one.

Electoral CollegeIn her graceful and generous concession speech, Hillary Rodham Clinton apologized to the women of America for failing to break the ultimate glass ceiling. But the popular vote tally from Tuesday’s election says she’s wrong. As this is being written, Hillary is leading Trump by more than 300,000 votes, a lead that’s not expected to shrink when the final count is in.

So it says here you did break that ceiling, Hillary. You were the first and nobody can ever take that away from you.

Hillary Clinton has become the fifth person in U.S. history to win the popular vote for president but see their opponent handed the keys to the White House because of the strange Constitutional anomaly the Founders called the Electoral College. A swing of about 107,000 votes spread over three states (PA, MI and WI) in an election in which more than 120 million Americans voted would have made her the 45th president.

Al Gore knows how she feels. He won the popular vote by more than 500,000 votes in 2000, but watched helplessly as Nino Scalia’s single vote on the Supreme Court awarded Florida’s 20 electoral votes to George W. Bush, based on a lead of 537 votes that was certified by the FL Secretary of State (who was appointed by Bush’s brother, Gov. Jeb Bush) before a recount could be completed. We won’t relive the convoluted recount process here; suffice it to say we hope President-elect Trump resists the temptation to offer Gore the ambassador’s job in Chad just to bust Al’s chops.

Andrew Jackson also knew that feeling. In the election of 1824, Jackson received 38,000 more popular votes than John Quincy Adams; Jackson also had more electoral votes than Adams, 99 to 84, but Andy fell short of the majority of 131 he needed to become president. So, as required by the Constitution, the decision went to the House of Representatives, which voted to make Adams our 6th president. [Jackson rebounded and won the presidency outright in 1828. Our 7th president served two terms and left office so popular they put his face on the $20 bill. However, the judgment of history about where he resides in the presidential firmament recently has been downgraded a notch: this year, Congress voted to replace Jackson on the twenty with Harriet Tubman, the heroic founder of the Underground Railroad.]

Grover Cleveland already was the incumbent in 1888 when he won the popular vote by a margin of 90,000 over Benjamin Harrison, but Harrison became president when he received 233 electoral votes to Cleveland’s 168. Like Jackson before him, Cleveland rebounded and in 1892 won the next election. [Cleveland is the only president in history to serve two non-consecutive terms; after FDR died in 1945 at the beginning of his fourth term in office, a Constitutional Amendment was enacted limiting presidents to two consecutive terms.]

In the examples cited above, the transition of power was accomplished peacefully despite the denial of power to the winner of the popular vote. But the crisis that erupted in 1876—when Samuel Tilden topped Rutherford B. Hayes by a margin of more than 250,000 in the popular vote, but came up one vote short of an Electoral College majority—almost reignited the Civil War and left a gaping wound on America that didn’t begin to heal for nearly a century. More about that later.

So whose idea was this Electoral College thing?

According to Constitutional scholars, the Founders created the Electoral College for two reasons: first, to create a buffer between the population and the selection of a president; second, as part of the structure of the government that gave extra power to the smaller states. The Founders feared that a direct election of the president might lead to a worst-case scenario in which a tyrant might manipulate public opinion and come to power. Here’s how Alexander Hamilton (who still has his face on the $10 bill and now stars in Broadway’s biggest hit) put it in the Federalist Papers:

“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.”

Thankfully, we’ve never tested whether Hamilton’s electoral fail-safe system can be deployed to prevent a popularly elected tyrant from taking office. But the election of 1876 proved how wrong he was about the Electoral College’s ability to prevent “tumult and disorder” from breaking out after the popular vote is tallied.

Tilden had 184 electoral votes to Hayes’s 165, one short of a majority, with 20 electoral votes unresolved by the election. The 20 electoral votes that were in dispute came from four states: in Florida, Louisiana and South Carolina, the Democrats and the Republicans each claimed their candidate had won the state. In Oregon, one elector was replaced after being declared illegal for being “an elected or appointed official.”

Tilden, a Democrat, had won the Southern states, which—a decade after the Civil War ended—still were occupied by Union troops. In the uproar over which candidate had won the presidency in 1876, folks in the North urged President Grant (who as a Union general had accepted Robert E. Lee’s surrender at Appomattox) to use federal troops to force Florida, Louisiana and South Carolina to deliver their electoral votes to Hayes, the Republican candidate. Folks in the South were talking about stockpiling cannons and taking down Old Glory from Fort Sumter for the second time. The smell of bloodshed was in the air.

Cooler heads prevailed and struck a deal that became known as the Compromise of 1877. But to those who revered Abraham Lincoln, had shed blood to preserve the Union or had been freed from bondage, the sordid agreement became known as the Betrayal of 1877. Here’s the deal: in exchange for the electoral votes that made Rutherford Hayes president, Grant and the Republicans agreed to withdraw federal troops from the South and effectively end Reconstruction. After Hayes took office, the Southern states quickly disenfranchised freed slaves and adopted Jim Crow laws, spreading a stain across the South that was not lifted until the Civil Rights movement of the 1960s.

[At the Republican convention in 1880, James Garfield made an impassioned speech imploring the GOP to honor Lincoln’s legacy and resume Reconstruction, which he called the Destiny of the Republic. Garfield unexpectedly was chosen on the 36th ballot as the Republican nominee and was elected president, but he was assassinated early in his term, before he could reverse the effects of the Betrayal of 1877.]

So we know for certain that the Electoral College can create “tumult and disorder” far worse than any it prevents.

And as for the “give smaller states a bigger voice” stuff, do we really need to watch New Hampshire get 5,000 visits from the presidential candidates (accompanied by an aerial bombardment of negative TV ads) every four years? No offense to the Granite State, we love your pancakes, maple syrup and flannel lumberjack shirts, but do we really want to give a handful of folks in a state with license plates that read Live Free or Die the power to overturn the popular vote in a presidential election?

It’s time to get rid of the anachronism known as the Electoral College and let the popular vote of the American people decide who becomes president. When anyone breaks through the required ceiling of support and is endorsed by the votes of a majority of their fellow citizens, he or she should get the prize.

If that’s not enough to persuade you, consider this: the Constitution of the United States also prohibits “cruel and unusual” punishment. We can’t think of anything crueler than winning the popular vote in a presidential election and then being consigned to the sad, cold wilderness of also-rans who never got to serve.

Tumult and disorder is a pretty good description of what takes place in our presidential campaigns these days. Let’s make sure the tumult always ends on Election Day. Let America’s voters make the final call, so we can all stop arguing about politics until we run into Uncle Charlie at the Thanksgiving dinner table.


Should a Constitutional Amendment be enacted to abolish the Electoral College?

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  1. Replacing the Electoral College with the popular vote would just replace one problem with another. Some of the largest states have the smallest population, and a win by national popular vote would mean the candidates would no longer need to concern themselves with the concerns of a large part of the country, by area. Leave the electoral college.

  2. Your suggestion that the “Electoral College is a dangerous anachronism that should be abolished” is predicated on a debatable premise that a “popular vote” approach would in no way tear the country apart. The federal model of the republic established by our founders has perhaps saved us from far more calamity than the narrow history you cite. In drafting the Constitution, the founders created a government of law and not of men, a republic and not a democracy – with a large historical basis for mistrust of a democracy. I am interested in electing someone to serve as President of the United States …not the President of the 16 largest cities in America. Particularly in light of the fact that there are rational concerns about the integrity of polling results, particularly in some of our larger cities. This of course is a constitutional question that would require an amendment to our constitution – to be ratified by the States – thankfully, it cannot be wiped away by the anarchism of a popular vote.

  3. We’ve received a number of heated responses to this post suggesting that it questions the legitimacy of the Nov. 8 election for president. It does not. Based on the requirements stipulated in the U.S. Constitution, Donald Trump won–fair and square–and Hillary Clinton lost. Our post cites the history of the Electoral College, including a contested election in which a dispute over electors nearly tore the country apart, and suggests that the Electoral College is a dangerous anachronism that should be abolished. President-elect Trump took a similar position re getting rid of the Electoral College after the 2012 election and in an interview with 60 Minutes that aired last night he reaffirmed that position, stating “I’m not going to change my mind about that just because I won.”
    – Jack Rogers, Editor-in-Chief, Business Facilities.

  4. Nino Scalia’s single vote? really? I thought it was Sandra Day O’Conner’s single vote, or was it Clarence Thomas’s single vote? or was it Chief Justice Rehnquist’s vote? Or was it Ralph Nader’s voters? or confused retiree’s votes? Or maybe a flawed candidate that couldn’t win his home state? Democracy works, the sky hasn’t fallen yet. If you want to get rid of the electoral college we might as well stop calling the office the Presidency of the United States and just call it what it will be, the President of the 10 Largest Media Markets. Lets get rid of senators too, no reason that Delaware and California both get two. As long as we’re at it lets get rid of states, they don’t make too much sense any longer anyways. We can just have some regional districts with lifetime bureaucrats appointed by Washington, kinda like Federal Judges that are the last word on everything now anyways.