Right off the bat, the Electoral College system, so carefully devised by the founders, failed. Their dream that a president would be carefully selected by a cadre of wise, thoughtful men (the “electors”) chosen by the legislatures of the several states, immediately foundered on the inescapable need of political leaders to form themselves into political parties. In the case of the new America, it was the Federalists, headed by the likes of John Adams, and the Democratic-Republicans, led by Thomas Jefferson.
It started with the perversely unique election of 1800, when Jefferson and Aaron Burr ran against Adams and Charles Pinckney. In that election, it was clearly understood by all that Jefferson was the presidential candidate and Burr the vice-presidential. When the electors met to decide, they voted 73 to 65 in favor of Jefferson and Burr, defeating Adams and Pinckney. It should be noted that they voted, not as the independent “wise men” envisioned by the drafters of the Constitution, but in lockstep as demanded by their respective political parties (whether that is constitutionally required is the subject of two Supreme Court cases likely to be decided this month).
However, in one of the great political betrayals in American history, Burr announced that he had been, after all, secretly running for president all along. That created a constitutional catastrophe because the Constitution then provided that the electors shall cast two votes without distinguishing between president and vice president, and that the presidential winner would be the man receiving the most electoral votes, as long as it was a majority. Therefore, because they had run as a team, the electoral votes for Jefferson and Burr tied at 73, with neither receiving the required majority. So it was that the decision was thrown into the House of Representatives with each state to cast its single vote. For 35 ballots, the House was deadlocked between these two candidates, with the Federalists backing Burr. Finally, on the 36th ballot, Alexander Hamilton, himself a Federalist leader, threw his support to Jefferson, breaking the tie and enabling Jefferson to win the prize.
That debacle led, in 1804, to the adoption of the 12th Amendment requiring the electors to vote separately for president and vice president, which is the rule today. But that fix did nothing to cure the two critical failures of the Electoral College: the risk of a perverted election when more than two viable candidates sought the presidency; and the greater risk of elections that result in the defeat of the candidate who captures a majority of the popular vote.
Both corruptions came roaring forward in the election of 1824. By that time, 18 of the then 24 states had moved to the popular election of electors (all of the remaining states would eventually follow). There were four presidential candidates: Andrew Jackson, John Quincy Adams, Henry Clay, and William Crawford. Jackson clearly won the popular vote — 11 percent more than Adams — as well as a lead in the electoral vote. But Jackson did not have a majority of electoral votes, and so the contest was sent to the House of Representatives, with each state casting one vote. There Clay threw his support to Adams, giving him a majority of the states, thus electing him president. Jackson, livid beyond words, called it “barefaced corruption.” But the result stood. Jackson, of course, gained his revenge four years later when he decisively defeated Adams’ bid for re-election.
In 1876, our Electoral College system caused a debacle that had a chillingly destructive impact on African Americans. In that election, Samuel Tilden received a majority of both the electoral and popular votes for president, and thus should have been easily elected. But it was not to be. His opponent, Rutherford Hayes, challenged the legitimacy of Tilden electors from three southern states — Florida, Louisiana, and South Carolina — and then promised that, if elected, he would end Reconstruction by removing federal troops from the South. The legislatures from those states immediately acquiesced and changed their electors, thus electing Hayes and, more importantly, beginning the death knell of free African American voting in the South.
As we moved on to the 20th Century, the Electoral College system continued to do its destructive work. In 1912, Theodore Roosevelt, then the former Republican president, ran against the incumbent Republican president, William Taft, and Woodrow Wilson, the Democrat. With these three well known candidates, the election could have been thrown into the House of Representatives, but, happenstantially, it was not because Wilson received an overwhelming 82 percent of the electoral votes despite achieving only 42 percent of the popular vote.
Throughout the recent century, the nation continued to skirt close to a House election when viable third-party candidates gained large numbers of electoral votes. So it was in the 1968 contest among Richard Nixon, Hubert Humphrey, and George Wallace, and again in 1992 among Bill Clinton, George H.W. Bush, and Ross Perot. Such luck is not necessarily ours forever, especially in an era where it is increasingly likely that one or both of our current political parties might divide and germinate, just as the Republicans came out of the Whigs in 1856.
And then, here in the 21st Century, we continue to see the specter of the election of presidential candidates who lose the popular vote: Al Gore over George W. Bush in 2000, and, of course, Hillary Clinton over Donald Trump in 2016.
There is absolutely no reason to believe that either of these abominations — elections by the House of Representatives or elections of candidates who lose the popular vote — will not continue to happen. What, if anything, can and should be done about it will be the subject of my final article.
Sherwin Markman, a graduate of the Yale Law School, lives in Rock Hall, Maryland. He served as an assistant to President Lyndon Johnson, after which was a trial lawyer in Washington, D.C. He has published several books, including one dealing with the Electoral College. He has also taught and lectured about the American political system.