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Essay: Electoral College is Federalism's Last Stand

The Constitution of the United States, as written by the Founding Fathers, is the most brilliant governmental compact ever established. Senator Daniel Webster, a member of the Great Triumvirate, was right on the money when he said that the document is “the work of the purest patriots and wisest statesmen that ever existed, aided by the smiles of a benign Providence.”

The Constitution

The Constitution is a simple document, but its elegance is extracted from the fact that it brilliantly established three federal branches that hold limited power and jurisdiction. These national institutions check one another and are in turn subject to further checks by state governments. Central power is limited, and the states reserve the remaining mandate for governance. Overreach by Washington, D.C. is constrained and individual liberty is maximized.

However serene the arrangement, contemporary political movements are generally in support of moving away from the Founders’ Constitution. Advocates for authoritarian populism and democratic socialism alike propose the enlargement of Washington, D.C.’s scope and the disintegration of the constitutional structure. More alarmingly, this advocacy has had an impact. A majority of Americans now support the abolition of the Electoral College. Calls for federal governmental overreach, crystallized by the Medicare for All proposal, are becoming louder by the day, and gone with these chants is reverence for the Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Innocence before the demonstration of guilt is under siege by partisan actors and the bureaucracy.

The statist instincts of the twenty-first century, though apparently foreign to American tradition, follow a long-term trend: Since the Gilded Age, Americans have shown a willingness to alter the founding form of the Constitution. The Sixteenth Amendment undid the tariff-based system of the Founders and established the wealth-confiscatory authority of the federal government. The Seventeenth Amendment undid more than a century of tradition and established direct elections for members of the United States Senate. The Twenty-second Amendment established a term limit on presidents.

Relatively speaking, these changes were timid: They “fine-tuned” the form of the Founders’ Constitution, leaving intact the institutions fundamental to constitutional government and the culture of individual liberty that it promotes.

However, the fine-tuning opened the floodgates for more radical propositions. Now, the fantasy of some within the United States is the immolation of what is left of the original constitutional structure and the annihilation of the building blocks for American government.

Consider that prior to 1913, American federalism had three formidable pillars: forty-eight state governments, the Electoral College, and the Senate.

At that point, the Senate consisted of 96 individuals sent to Washington, D.C. by the states. Nowhere in the job description of a senator was the requirement that he serve as a voice for the body politic; that duty was allocated to members of the House of Representatives. Senators, instead, were tasked with nobly defending the viewpoints of the state governments on the national level. This arrangement was logical: In 1789, the states entered a contract that ceded some of their authority to Washington, D.C., and the Senate allowed them to directly oversee the federal government’s utilization of these powers.

However, the Seventeenth Amendment laid waste to the original purpose of the Senate, nullifying the body’s constitutional use and making it an additional House of Representatives. Elections for Senate seats, formerly orderly processes in which forty-eight legislatures determined 96 individuals who would aptly defend the American federalist tradition, became popularity contests. State governments lost their representation in Washington, D.C. and the Senate became another rung on the political ladder for demagogues. Consequentially, the first pillar of constitutional federalism was reduced to rubble.

The second pillar of federalism, the state governments, has also been reduced. States have voluntarily and involuntarily forfeited their Tenth-Amendment powers to the federal government, thanks in large part to Supreme Court decisions and the allure of “free” federal money.

Therefore, the last pillar of the federalist order standing is the Electoral College. However, without a shift in the American mindset, the founding Constitution will be fully immolated: A Pew Research survey shows that 55% would prefer that the winner of the popular vote be president, compared to just 41% who seek to preserve the constitutional arrangement.

Doing without the Electoral College may appear to be another fine-tuning of the constitutional order, just like a term limit on the presidency, direct elections for senators, and the federal income tax, but the proposition reflects a genuinely alarming trend in the American psyche: Forfeiting the Electoral College would inch the United States one step closer to a unitary system, and the states would officially be relegated to subservience to Washington, D.C. The Constitution as we know it would be no longer.

Consider the underpinning of American presidential elections: Fifty states hold fifty separate contests in which they decide their electors. Preserved under this arrangement is state sovereignty and the realization that the national system does not transcend the boundaries between America’s fifty component entities.

On the other hand, the institution of a national popular vote would declare that the legal differentiator between the fifty states is null. From that point on, the whims of the national majority would officially supersede the prerogatives of Dover, Delaware; Jefferson City, Missouri; Juneau, Alaska; Raleigh, North Carolina; and Sacramento, California. If a national majority sought to institute military rule in a certain state, suspend its constitution, and establish collective farms, that course of action would be democratically legitimate.

Hence why Lord Acton said, “The one pervading evil of democracy is the tyranny of the majority.” The Founders removed the “pervading evil” from the American equation, and its establishment today would be catastrophic: Dissolved would be the promise of a balance of power between the local and the federal governments, and with it, the contract that binds the fifty states into a union. Instituted would be an arrangement of federal dominance and state submission that would permanently cobble America, permitting attacks, inefficiency, and abuse.

Lord Acton

Consider first that the constitutional arrangement confers safety. Under the electoral system, fifty states hold fifty elections, and the polls are managed by the states separately and without federal interference. The states have different processes for tallying votes: Some have electronic balloting, others use paper ballots, and some utilize a combination of both. The fifty states secure their elections differently, too: For example, California legalized ballot harvesting, but this practice was cause for overturning a North Carolina congressional election. Electoral decentralization, combined with the variation in techniques, limits the ability of a foreign power to throw the American presidential election infrastructure into chaos.

Aside from making American elections vulnerable to foreign attack, abolishing the current system would also breed inefficiency. It is implausible that a federal election authority would be able to count votes as productively as fifty secretaries of state working separately. Furthermore, if a thousand votes separated the leading candidates, the system would be thrown into disorder: A recount of a hundred million votes would be far more tedious than recounts in comparatively small states with close results, processes that take long enough as it is.

Ceding the management of presidential elections to the federal government would also make the system vulnerable to internal abuse. Joseph Stalin reportedly said, “It’s not the people who vote that count, it’s the people who count the votes.” Assuming the quote is accurately attributed, Stalin is correct.

Empowering the federal government to count the votes in national elections would lead to the disintegration of American democratic institutions. The bureaucrats in Washington, D.C., “the people who [would] count the votes” in a popular election, could override the will of the people as is the case in banana republics. This possibility is improbable, if not impossible, in the present system, which consists of fifty state governments managing polls that are independent of one another. Better yet, state and local election supervisors are politically accountable, barring improper conduct.

Finally, without the Electoral College, presidents elected from crowded fields would lack national legitimacy and American political stability would crumble. In the presidential election of 1860, Abraham Lincoln received just 39.8% of the votes cast. However, this meager share gave Lincoln 59.4% of the available electors and a mandate for decisive leadership. The scenario was similar in 1912, when Governor Woodrow Wilson took just 41.8% of the popular vote; his mandate came from 435 electoral votes.

On the flip side, the anti-Electoral College contingent oftentimes note that in the past two decades, George W. Bush and Donald Trump were sent to the White House without the plurality of the popular vote. While it so happens that two of the last three presidents did not win the national popular vote, it is also important to remember that since 1789, there have been only five presidents in total who won solely by virtue of the Electoral College, including Presidents Bush and Trump. In other words, 88.9% of presidents received the plurality of the vote, while just 11.1% did not. There have been so few presidents elected without a victory in the popular vote that this consideration is less pressing than those of election security, federal control, and constitutional stability.

Abolishing the Electoral College may appear to be just another proposal out of many. However, the proposition’s popularity represents the apex of America’s broader divergence from the Founders’ Constitution, which commenced in the Gilded Age. Moreover, because of the demise of states’ rights and the constitutional Senate years ago, the abolition of the Electoral College would mark the definitive end of the American federalist order.

From that point on, it would be unclear whether the United States is a republic or a unitary behemoth that transcends state boundaries. Finally, doing without the college would present practical issues, including increased vulnerability to meddling and reduced mandates for presidents. Proposals for the abolition of the Electoral College, therefore, represent an affront to America’s foundations.