PRESIDENTIAL ELECTION LAW
   ... edited by Tony Sutin, Dean and Assoc. Professor, Appalachian School of Law

Frequently-Asked-Questions || Latest Legal News | Statutes and Cases | Departments and Officials || Lawsuits and Documents | Electoral College | Glossary | Legal Commentary || Presidential Election Law Home
覧覧覧覧覧覧覧覧覧覧覧覧覧覧
The Murky Proslavery Origins of the Electoral College [Commentary]

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. He welcomes comments at JURIST@law.pitt.edu