Professor Paul Finkleman, Chapman Distinguished Professor of Law, University of Tulsa

As the recount continues, Americans are getting the civics lesson
we never had in school: we are learning how the electoral college works,
and we are asking whether it is time to abolish the electoral college. In
order to determine whether it is still a useful part of our electoral
process, it is necessary to learn the origin and history of the electoral
college.

Textbooks offer us two common explanations for the creation of the
electoral college. Both are wrong, and both miss the real purpose of the
electoral college which was to insure that the largest state, Virginia,
would be able to elect the national president.

The first (mostly) wrong explanation: the Electoral College was
created because the Framers of the Constitution were afraid of allowing the
common voters to choose the president. This is the story I learned in
public school, and I even saw it in college textbooks many years ago, when
I first starting teaching United States history. The argument was that
the Framers of the Constitution were elitists who feared the average voter
would be unable to choose a national candidate. So, instead, the voter
would choose a local “elector” who would cast a more informed vote for
president.

At the Constitutional Convention, Elbridge Gerry of Massachusetts
took this position. Gerry was the father of the “Gerrymander” and a shrewd
politician and businessman. He argued that “the people are uninformed, and
would be misled by a few designing men.” This is the origin of the belief
that the Framers feared the people. But no one else at the Convention
accepted Gerry’s argument. They understood there were two major fallacies
with this conclusion.

First, local electors could also be “designing men” who could
mislead the people at the local level. Moreover, given the quality and
fame of the national leaders — Washington, Franklin, Adams, Hamilton,
Jefferson — it was unlikely the people would be “misled” by those seeking
the nation’s highest office.

Second, in most places the voters were hardly the common people.
It is true that Massachusetts allowed all free adult males, regardless of
property ownership or race, to vote. But, most states had property
requirements, and in a number, including Virginia, South Carolina, and
Georgia, free black men could not vote. Only New Jersey allowed women to
vote at this time. Officeholding at this time was even more restrictive.
With the exception of New York and Virginia, every state had a religious
test for officeholding with most requiring that an officeholder be
Protestant. Given who could vote and hold office, the Framers did not need
to fear the rabble would elect some unknown person as president; the rabble
could not even vote.

In most places those who did vote were literate and well aware of
the issues and the candidates. Indeed, it is likely that American voters
in the 1780s, even without the benefit of television, mass production of
newspapers, or the internet were on average better informed than those who
vote today.

The second (partially) wrong explanation: the electoral college
was designed to protect the small states from dominance by the large. This
is the explanation the respected commentator, Daniel Schorr, gave recently
on National Public Radio. In all the debates over the executive at the
Constitutional Convention, this issue never came up. Indeed, the opposite
argument was more important. At one point the Convention considered
allowing the state governors to choose the president but backed away from
this in part because it would allow the small states to chose one of their
own.

The correct explanation: to understand the origin of the electoral
college we first must see the various methods of picking a president that
the delegates to the Constitutional Convention considered. Initially, the
president was to be elected by the Congress and serve for seven years. Some
delegates wanted a single term for the president, but the majority were
opposed to term limits — they believed the best leaders should serve as
long as the people wanted them to serve.

However, in rejecting term limits, the delegates faced another
problem. Elbridge Gerry made the point powerfully. If the legislature
chose the president, and the president was eligible for re-election, he
would be “absolutely dependent” on the legislature. This system would
destroy the separation of powers which the delegates wanted to build into
the new constitution.

Thus, the delegates had to find another method of electing the
president. On July 19, 1787 Oliver Ellsworth of Connecticut proposed
“electors” appointed by the state legislatures. Under Ellsworth’s plan
these would be apportioned on the basis of population, and thus the small
states would have no special advantage.

At this point James Madison, a slaveholder from Virginia, weighed
in. The most influential delegate, Madison argued that “the people at
large” were “the fittest” to choose the president. But “one
difficulty…of a serious nature” made election by the people impossible.
Madison noted that the “right of suffrage was much more diffusive in the
Northern than the Southern States; and the latter could have no influence
in the election on the score of the Negroes.” In order to guarantee that
the nonvoting slaves could nevertheless influence the presidential
election, Madison favored the creation of the electoral college. Hugh
Williamson of North Carolina was more open about the reasons for southern
opposition to election by popular vote. He noted that under a direct
election of the president, Virginia would not be able to elect her leaders
president because “her slaves will have no suffrage.” The same of course
would be true for the rest of the South.

Quickly the Convention followed the lead of Ellsworth, from a small
state, and Madison and Williamson, from large states. The Convention tied
presidential electors to representation in Congress. By this time the
Convention had already agreed to count slaves for representation under the
three-fifths compromise (counting five slaves as equal to three free people
in order to increase the south’s proportional representation in congress).
Thus, in electing the president the political power of slaveowners
(although obviously not the votes of slaves) would be factored into the
electoral votes of each state.

The truth of Williamson’s observation becomes clear when we examine
the election of 1800 between John Adams who never owned a slave and Thomas
Jefferson who owned about 200 at the time. The election was very close,
with Jefferson getting 73 electoral votes and Adams 65. Jefferson’s
strength was in the South, which provided 53 of his electoral votes. If
Jefferson had received no electoral votes based on counting slaves under
the 3/5ths clause, John Adams would have won the election.

Over one hundred and thirty-five years ago the United States rid
itself of slavery. Perhaps it is now time to rid ourselves of the last
constitutional vestige of the peculiar institution: the electoral college.
After all, it is surely the most peculiar aspect of our political system.
And, as election 2000 shows, it does not seem to be working very well. Now
that slavery is no longer an issue, perhaps it is time to reexamine James
Madison’s original statement, “The people at large” are “the fittest” to
choose the president, because “The people generally could only know & vote
for some Citizen whose merits had rendered him an object of general
attention & esteem.” Perhaps it is time to heed Madison’s advice.

November 30, 2000

Paul Finkelman is the Chapman Distinguished Professor of Law at The
University of Tulsa College of Law. He received in Ph.D. in U.S. history
from the University of Chicago before serving as a fellow in law and
humanities at Harvard Law School.