Joseph Grcic, Indiana State University
The US constitution specifies that the president and vice president of the United States are not to be chosen directly by the people but by what has come to be called the electoral college. The thesis of this essay is that the electoral college should be abolished because it lacks a rational justification and contradicts the basic principles of democratic society as articulated by John Rawls. 1
The electoral college is constituted by electors chosen by each state and the District of Columbia. The number of electors is equal to the number of senators and representatives the state has in Congress plus the electors assigned to Washington, D.C. There is only one constitutional restriction as to the identity of the electors, “No Senator or Representative or person holding an office of trust or profit under the United States shall be appointed an elector.” 2 Further qualification, if any, for being an elector and their selection are determined by state legislatures.
The constitution does not require that electors vote as the majority or plurality in their state voted, but some states do have such a requirement or something similar. In Ray V. Blair the US Supreme Court determined states may, but need not, require electors to vote according to popular vote, but there is no clarity about what would happen if some elector chose to ignore the state law. 3 In fact, it seems clear that the framers of the constitution expected the electors to vote as free agents according to their own judgment and conscience which contradicts the court’s view in Ray. 4 When the electoral college meets, about six weeks after the election, a majority of 270 electoral votes out of 538 are needed to win the presidency. Failing this, the election is thrown into the House where each state has one vote.
The justification for creating the electoral college included two main reasons offered by the framers of the constitution. One argument seems to have been based on federalism. Federalism was understood as a sharing of power between the central government and the states and intended to limit the federal government and so help protect liberty. The rural states were concerned that they would be less powerful than the urban and more populous states if the president and vice president were elected directly by the populace. To this end some supported the electoral college as a compromise to appease the small and slave holding states who felt a direct election of the president would place them in a weakened position. 5 The underlying idea seems to have been that the winner of the presidential race should have wide appeal geographically thus promoting the stability and unity of the nation.
A second rationale for the college was to be found in the thinking of individuals such as Alexander Hamilton who were suspicious of mass democracy. He and other members of the economic elite saw the potential for mob rule by an uneducated, widely dispersed, and morally limited populace who may threaten private property. 6Individuals such as Hamilton saw the electoral college as consisting of mature, affluent wise white men who had the best interests of the country (and their own) when they deliberated.
The argument against the electoral college presented here has two parts, one consisting of an analysis of the original justification of the institution and one based on John Rawls’ political theory, but whose validity are generally acknowledged among many political theorists.
First, the idea of preserving federalism and widespread geographic support for the president by means of the electoral college is dubious. Federalism is not well defined by the constitution, but it is clear it can and has been institutionalized in ways not necessarily incorporating the electoral college. For example, the sharing of power between the federal government and the states has been implemented by, among other structures (discussed below), the bicameral system which gives each state two senators regardless of population. Moreover, geographic diversity is a lesser value in contemporary society which is more economically diverse and mobile. Finally, one must balance the value of geographic diversity, to the degree that there is such a value, with the values compromised by such a value, such as political equality and democratic rule (argued below). The very fact that slavery played a role in the creation of the electoral college should be an indicator of the nature of the institution. 7
Second, contrary to Hamilton’s assumptions and fears about “mob rule,” the population is far more educated than at the time of the writing of the constitution. More importantly, there are many other institutional structures in place that are designed to prevent “mob rule,” though the exact meaning of this phrase is not clear. Federalism, separation of powers, checks and balances, judicial review, independence of the judiciary, representative not direct rule, the bicameral legislature (where the House members, elected for two years, are said to be more responsive to current popular opinion and the Senate elected for six years is supposedly more immune to the ephemeral moods of the populace), the party system, and the free press all serve to make mob rule less likely. In addition, various contemporary social welfare programs and a regulated and more stable economy make less likely the possibility of a desperate mob intent on violating the property of the elite. Finally, democratic theory, as will be explored more fully below, is not based on whether the populace is educated or wise but on the equal moral rights of persons.
Third, the other main justification for the college, that it would be a deliberative body of wise or at least better informed individuals who would select the president and vice president in a rational manner, has not been implemented. The electors are not chosen because of their wisdom, even if that were possible, since there is no generally accepted legal definition of “wisdom.” If wisdom is interpreted to include a kind of spiritual or religious dimension, then it would violate the establishment clause, or the separation of church and state, as specified in the First Amendment. In fact, the electors are chosen usually for their loyalty to their political party.
In Ray V. Blair mentioned above, the court ruled in favor of the claim that electors are not necessarily free agents but can be required to vote according to party loyalty or popular vote. The court’s ruling would seem to imply that wisdom is not a relevant criterion.
A further problem which exacerbates the moral and political problems associated with the electoral college is the problem of unfaithful electors. Unfaithful electors, at least seventeen so far, are those who did not cast their vote as they promised or as the popular vote majority dictated. At times these electors acted as they did in exchange for personal favors from those elected. 8
The problematic and anomalous aspects of the electoral college are made more perspicuous by comparison with John Rawls’ theory of justice. 9 Rawls considers himself to be working in the tradition of the Declaration of Independence, the basic principles of the US constitution and the social contract theory of Locke, Rousseau and Kant who understood a democratic system to be, essentially, a society where citizens are defined as “free and equal.” 10 According to Rawls, a society based on the principles of democratic equality would be based on his two basic principles of justice. The first principle states “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” And the second principle holds: “social and economic inequalities are to be arranged so that they are both a) reasonable expected to be to everyone’s advantage, and b) attach to positions and offices open to all. 11
The electoral college is a violation of Rawls’ first principle in two senses. First, the college denies the general population the right to select the president and vice president directly and as such jeopardizes the basic structure as defined by the two principles. The very existence of the college contradicts democratic principles of equality since it implies that some persons are more qualified than others to elect the president and vice president. Moreover, the electors are not necessarily elected by the citizens of each state and the votes of the electoral college as a whole have not always, nor are they legally required to, correspond to the winner of the national popular vote.
Furthermore, because the college incorporates the distribution of political power which allocates two senators to each state regardless of population, even if electors vote consistently with the popular vote, the result would not guarantee that the winner of the popular vote would win the presidency. 12 Because of this fact, the rule of one person, one vote is violated since the vote of individuals in small states literally is more powerful than the vote of a voter in a large state. Thus, for example, in the 1988 election, one electoral vote in Alaska for every 66,705 voters while in New York, there was one elector for every 178,604 votes. 13
The two principles, according to Rawls, would form the foundation of a well-ordered society. This is a society where there is a conception of justice which the citizens know and accept and the basic structure of society satisfies these principles in general. In addition, citizens in a well-ordered society have a sense of justice so that they apply these principles and act accordingly for the most part. 14 Finally, a Rawlsian well-ordered society is one where the basic structure promotes the virtues of fairness and trust among the citizenry.
The electoral college contradicts the idea of a well-ordered society because the structure of the electoral college is under-determined and functions at the discretion or whimsy of many individuals at many levels. At the level of selecting electors, there are variations and inconsistencies and once electors are chosen their decisions are essentially undefined especially given the constitutional uncertainties mentioned above. If the vote is thrown into the House, there are no restrictions as to how the representatives may vote (other than one vote per state) which introduces further uncertainty especially since the House vote is subject to bartering, and possible bribery, further removing it from the sovereignty of the people. Given these facts it is clear that the electoral college is not a sufficiently defined element of the basic structure and thus contaminates the basic structure with vagueness which undermines its function of defining the basic rights and duties of the populace.
The electoral college also conflicts with the Rawlsian requirement that the basic institutions encourage the virtues implicit in the basic structure such as trust. Since the electoral college can, except in the cases where limited by state law, act in virtually any way it chooses, it conflicts with the virtue of trust since trust cannot exist without sufficient structure of mutual respect and reciprocity or in a deceptive framework. The current presidential election process is also deceptive in that the popular vote takes place as if the citizens choose the president and vice president directly which contradicts purpose of the electoral college.
IV. Stable Society/Public Reason
For Rawls, a well-ordered society is also a stable society if it meets certain conditions. The basic idea of stability, as Rawls understands it, is that there is a coherence between the political system and human nature and human psychology. 15 The basic principle here is the well established ought implies can; that no person can be asked to do what is impossible for humans to do, either physically or psychologically.
The specific requirements of stability Rawls articulates with three points. First, a stable constitutional society is one which must “fix, once and for all, the basic rights and liberties, and to assign them a special priority.” 16 Here, for example, Rawls believes that utility fails the test of stability since it does not guarantee the basic principles of justice and as such creates too much uncertainty in the social system. Specifically, Rawls claims that the principle of utility could violate the ought implies can principle by requiring persons to do more than is psychologically possible. 17
Second, in a stable system, the basic structure of the society is the basis of “public reason” and the basic institutions encourage the virtues of “public life” and “fairness.” By fairness Rawls means that institutions satisfy the two principles of justice and that one has “voluntarily accepted the benefits of the arrangement or taken advantage of the opportunities it offers to further one’s interests.” 18 And third, a stable society is one where “its basic institutions should encourage the cooperative virtues of political life.” These virtues are those of “reasonableness and a sense of fairness, and of a spirit of compromise and a readiness to meet others halfway.” 19
The electoral college is clearly incompatible with Rawls’ idea of stable society. Specifically, it conflicts with the first requirement that the basic rights be “fixed.” The electoral college is, as argued above, fundamentally under-defined in that the rights specified in the basic structure of the constitution are open to violation.
The electoral college also conflicts with the second requirement of a stable society in two ways. First, it conflicts with the idea of what Rawls terms “public reason.” 20 Public reason is an ideal of democratic citizenship and fairness where citizens agree that political discourse in a just society will be open and public and in terms of the basic rights and duties embodied in the mutually acknowledged principles defining the basic structure. Public reason is public in three ways: (1) it pertains to the reasoning of citizens as free and equal; (2) it is open and public discourse about the general good and social justice; (3) the content of the discourse is given by a public conception of justice and the basic structure. 21
The content of public reason involves constitutional essentials and basic justice to be settled by political values alone. The legitimacy of public reason is based on whether or not it uses concepts and principles constitutive of the overlapping consensus. Public reason does not apply to private deliberations about comprehensive doctrines but only to political and constitutional essentials of the basic structure.
The electoral college is fundamentally a violation of public reason. The college does not respect citizens as free and equal since the average citizen does not directly elect the president nor is there a guaranteed legal requirement that his or her vote actually counts. The college may function independently of the values implicit in public reason and not engage in public debate at all. Public justification of electoral votes cast, whether in conformity to the majority or not, is not required by law. The electoral college functions in a manner not engaging with public reason or based on the content of the basic structure but in private deliberations. Certainly a free and equal people would not agree to the idea of a system of election which operates in an anomalous manner which potentially contradicts with the basic structure.
V. Rule of Law/Legitimacy
The Rawlsian ideal of fairness and a well-ordered and stable society all assume the ideal of the rule of law. The rule of law ideal sees laws as specific norms generated by the basic principles of justice as applied to the social circumstances and conditions in a given domain. According to Rawls, a just legal system must be consistent with the basic principles of the basic structure and conforms to the rule of law if the system of laws is clear, public, complete, and consistent set of norms which specify how members of the community and institutions should behave and function. Rawls adds that the rule of law in its implementation requires that similar cases be treated similarly and that there can be no criminal offense without a corresponding law, no law can violate the ‘ought implies can’ principle, in addition to some other conditions. 22
To be sure, the rule of law, as opposed to what is often termed the rule of men, is an ideal abstraction. It is an abstraction since laws are written in a language vague to various degrees which must be interpreted and implemented by imperfect and variously biased persons. Nevertheless, the rule of law sets some limits to these variables and provides somewhat stable parameters which make possible law as a guide to human action and as the basis of social order.
The electoral college clearly violates the ideal of the rule of law. As already indicated, the college is not well defined in structure which raises the question of its coherence with the basic structure. As also indicated, various state laws governing electors in the individual states are variable and potentially inconsistent with each other and the basic structure. In sum, it seems that the main conditions of the rule of law, namely clarity, consistency and completeness, seem to be violated by the electoral college.
The contradictions between the electoral college and the rule of law raises the issue of the legitimacy of the political system. In general, the legitimacy of political power is determined by whether the political system functions consistently with the moral and legal parameters of the society within which it exists. Rawls understands the legitimacy of political power as existing, “only when it [political power] is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideals acceptable to their common human reason.” 23One need not subscribe to every nuance of Rawls’ idea of legitimacy to see that the electoral college, as already discussed, is deeply flawed and based on an ideology which does not accept persons as free and equal. It is also a commonplace of history that women, Native-Americans, African-Americans, slaves and men without property were excluded from the constitutional convention and its ratification. 24 These fundamental inadequacies in the creation, ratification, and implementation of the constitution allowed the creation of the electoral college, as well as the acceptance of other institutions, such as slavery, which contradict the fundamental ideal of democratic equality.
Finally, the anomalous nature of the electoral college brings forth a dilemma. If the electors vote for the candidate who has received the most votes, they are redundant. If they do not, and, as already indicated, there is no legal guarantee the electors will vote as those who voted for them expected them to, then the college is inconsistent with the ideals of democratic equality and thus contrary to the conditions necessary for a legitimate political structure.
If the above arguments are sound, then the electoral college should be abolished through a constitutional amendment or various proposals that would generally have the same results. 25The president and vice president should be elected directly by the free vote of the citizenry. The electoral college is an anomaly within the basic structure and one of the last remaining vestiges of the inegalitarian elements of the constitution.
Ackerman, Bruce. Bush V. Gore.New Haven: Yale UP, 2002.
Beard, Charles A. An Economic Interpretation of the Constitution of the United States. New York:
Brown, Robert E. Charles Beard and the Constitution. Princeton: Princeton UP, 1956.
Dahl, Robert A. How Democratic is the American Constitution? New Haven: Yale UP, 2003.
Dahl, Robert. On Democracy. New Haven: Yale UP, 1998.
Dworkin, Ronald. Is Democracy Possible Here? Princeton: Princeton UP, 2006.
Edwards, George C. Why the Electoral College is Bad for America. New Haven; Yale UP, 2004.
Farrand, Max. The Framing ofthe Constitution ofthe United States. New Haven: Yale UP, 1913.
Freeman, Samuel, ed. The Cambridge Companion to Rawls. Cambridge: Cambridge UP, 2003.
Freeman, Samuel, ed. John Rawls: Collected Papers. Cambridge: Harvard UP, 1999.
Hall, Kermit, ed. The Supreme Court ofthe United States. New York: Oxford UP, 1962.
Manley, John F. and Kenneth Dolbeare, eds. The Case Against the Constitution. London: Sharpe, Inc., 1987.
Polsby, Nelson and Aaron Wildavsky. Presidential Elections. New York: Free Press, 1991. Rawls, John. Justice as Fairness. Cambridge: Harvard UP, 2001.
Rawls, John. Political Liberalism. New York: Columbia UP, 1993.
Rawls, John. A Theory of Justice. Cambridge: Harvard UP, 1971. Revised ed. Cambridge: Harvard UP, 1999.
Wilmerding, Lucius, Jr. The Electoral College. New Brunswick: Rutgers UP, 1958.
Zinn, Howard. A People’s History of the United States. New York: Harper Perennial, 1995.
- This should not be taken as assuming Rawls’ theory is correct in every aspect, surely no theory is, but only that the Rawls’ ideas used here to argue against the electoral college are relevant and plausible in this context.
- “Each state shall appoint in such a 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” (Article II, Section 1, US Constitution); cf. Max Farrand, The Framing of the Constitution ofthe United States (New Haven: Yale UP, 1913) 77-8, 85.
- Ray V. Blair, 343 US 214 (1952); in McPherson V. Blacker (1892) the court seems to have held a different view; see also Kermit Hall, ed., The Supreme Court of the United States (New York: Oxford UP, 1962) 881.
- George C. Edwards, Why the Electoral College is Bad for America (New Haven; Yale UP, 2004) 25-6.
- Slaves were to be counted as 2/3 persons was part of the compromise as well.
- Alexander Hamilton, Federalist #68, James Madison, Federalist #10, 39, John Jay Federalist #64; Justice Harlan in Williams V. Rhodes 393 U.S. 23 (1968) accepts this view of the framers intentions in creating the electoral college; see also Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1935) 214 and John F. Manley and Kenneth Dolbeare, eds., The Case Against the Constitution(London: Sharpe, Inc., 1987) 31-50; for criticism of Beard see Robert E.Brown, Charles Beard and the Constitution (Princeton: Princeton UP, 1956) esp. 99, 123.
- Lucius Wilmerding, Jr., The Electoral College (New Brunswick: Rutgers UP, 1958) 11-12.
- Six times the winner of the popular vote did not win the majority of electoral votes. Twice the decision for president was thrown into the House of Representative as provided by the 12 amendment. (In 1824 Andrew Jackson won plurality but lost to John Quincy Adams in the House election; in 1876 Samuel J. Tilden won the popular vote but not the presidency; Benjamin Harrison won by electoral votes in 1888 even though Grover Cleveland won the popular vote; in 1960 John F. Kennedy received fewer votes, and more recently in 2000 Gore received more popular votes than President George W. Bush.) Given the current legal situation, there is a probability of one in three that there will be a lack of consistency in the popular and electoral vote if the margin of popular votes is less than 300,000. If the margin is less than 1.5 million, the probability of an inconsistency is one in four. Even if the vote did correspond to the popular vote, due to the allocation of two senators to each state regardless of the population, the electoral vote does not necessarily mean the candidate with the most popular votes wins.
- John Rawls, A Theory of Justice (Cambridge: Harvard UP, 1971) 453-62. The use of Rawls’ theory is not meant to imply that only his theory is capable of showing the contradictions and moral bankruptcy of the electoral college. Indeed, the ideas Rawls uses, the rule of law, stability, well- ordered society, etc., are widely shared among liberal democratic theorists such as Ronald Dworkin, Is Democracy Possible Here? (Princeton: Princeton UP, 2006) and Robert Dahl, On Democracy (New Haven: Yale UP, 1998).
- Rawls 19.
- Rawls 60.
- Bruce Ackerman, Bush V. Gore (New Haven: Yale UP, 2002) 7-12.
- Nelson Polsby and Aaron Wildavsky, Presidential Elections (New York: Free Press, 1991) 43.
- John Rawls, Justice as Fairness (Cambridge: Harvard UP, 2001) 8-9.
- Rawls, A Theory of Justice 398-90, 499; Samuel Freeman, ed., John Rawls: Collected Papers (Cambridge: Harvard UP, 1999) 105-6, 177.
- Rawls, A Theory of Justice 454; John Rawls, Political Liberalism (New York: Columbia UP, 1993) 38- 40.
- Rawls, Justice as Fairness 115.
- Rawls,A Theory of Justice 110-12.
- Rawls,Justice as Fairness 116.
- Rawls, Political Liberalism 213.
- Rawls, Political Liberalism 223-225; John Rawls, “The Idea of Public Reason Revisited” in Freeman, ed., Collected Papers: John Rawls 573-575; Charles Larmore, “Public Reason” in Samuel Freeman, ed., The Cambridge Companion to Rawls (Cambridge: Cambridge UP, 2003) 368-375.
- John Rawls, A Theory of Justice, revised ed. (Cambridge: Harvard UP, 1999) 206-11; Rawls acknowledges his sources here include H.L.A. Hart’s The Concept of Law (Oxford UP 1961) and Lon Fuller’s The Morality of Law (Yale UP 1964).
- Rawls,Political Liberalism 137; Freeman, John Rawls: Collected Papers 578-9.
- Howard Zinn, A People’s History of the United States (New York: Harper Perennial, 1995) 88-90.
- Robert A. Dahl, How Democratic is the American Constitution? (New Haven: Yale UP, 2003) 86-7.