The Role of States, as States, in the Electoral College

Of all those whose predictions were dashed by this year’s presidential outcome (“Trump is headed toward a major loss” his Oct. 19 headline blared), few have been more exercised than the Washington Post’s E.J. Dionne (“white identity politics and male self-assertion triumphed” he railed the day after). Yesterday, in a piece titled “America will soon be ruled by a minority,” he joined the chorus now condemning the “undemocratic” Electoral College—in the name of the Founders, no less, the very men who created it. Ever the good progressive, he fails to appreciate the role states were meant to play in ordering our public affairs.

This round, of course, it’s the disparity between the Electoral College vote and the popular vote that animates Dionne: “For the next two and probably four years,” he writes, “a majority of Americans will be governed by politicians largely elected by a minority of us.”

The inherent illogic of our practices, and the fact that they have nothing to do with the founders’ intentions, is underscored by this contradiction: We are supposed to ignore the national popular vote but deeply respect Trump’s narrow 77,000 popular-vote advantage in the three states that will tip the electoral college his way. (original emphasis)

Having thus implied that the Founders intended us to be ruled by popular majorities, Dionne writes next, curiously, that the Constitution itself “makes no mention of popular votes because the framers never expected there to be any. They saw the electoral college as a deliberative body chosen by state legislatures.” Well, which is it? Did the Founders intend the president to be elected by national popular vote or by the Electoral College?

What the Constitution does say in relevant part is that “Each State shall appoint, in such 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.” (emphasis added) At the nation’s outset, to be sure, more state legislatures than not appointed electors; but early on that balance began shifting toward selection of electors by popular vote. Moreover, if Dionne’s touchstone is the “founders’ intentions,” what better evidence than in Hamilton’s Federalist 68, “The Mode of Electing the President”: “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 [tasks].” (emphasis added)

So that tips the balance toward popular election of electors, by state, not nationally. And therein lies the genius of the Framers. They were no friends of direct democracy. Indeed, they feared undiluted majoritarian rule almost as much as royal rule. They put liberty first, with democracy as one, but only one, means toward securing it.

At the end of the day, however, it is those countermajoritarian provisions that most exercise Dionne. Thus, he goes next after the Senate, which “compounds the minority government problem,” and then after Article V’s amendment procedures, which enable small states, he says, to block electoral college reform.

In so arguing, Dionne stands in the long tradition of his progressive forebears who sought to reduce the role of the states, thereby to enhance centralized national power. Thus in 1913, at the height of the Progressive Era, they pushed through both the Sixteenth Amendment’s income tax, which vastly expanded federal power, and the Seventeenth Amendment’s direct election of Senators, which reduced the power of state legislatures.

The direct election of the president by a national popular vote would have similar effects by vastly increasing the power of a few large states—Democratic Party bastions, Dionne frankly admits—at the expense of the rest of the country. It would be one more step toward the direct democracy progressives have always sought, which the Founders meant to check, through federalism, in the name of individual liberty.