This is the first of a series of four informative articles on the Electoral College written by Alex Li of the League of Women Voters Berkeley Albany Emeryville.

Every four years, Americans across the country turn out to participate in our hundreds-year-old tradition of electing a president. At the heart of this ceremony is the Electoral College, the process by which electors portioned to each state decide who becomes president. And so, every four years, Americans confront a democratic system that is both hallowed and fragile.

A House Divided

From its start, the Electoral College was not engineered to capture the popular will of the people. The Electoral College arose from the 1787 Constitutional Convention as a concession to Southern interests. There were fears that an uninformed populace would elect a demagogue to the presidency and that the president would be liable to the erratic impulses of the people. However, the concerns of the southern slaveholding delegation were “the real demon dooming direct national election,” as described in TIME magazine. Slavery, more than anything else, shaped the system used to this day to elect the president of the United States.

According to the 1790 U.S. Census, the South’s enslaved population represented 34% of the South and about 93% of the nation’s enslaved population were in just 5 Southern states. Meanwhile, by the time of the Constitutional Convention, five Northern states (Pennsylvania, New Hampshire, Massachusetts, Connecticut, and Rhode Island) had begun the process of abolishing slavery while Vermont had become the first state to abolish the institution completely. The effect of the divide was put bluntly by James Madison. He wrote, “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 Negroes.” The Electoral College as opposed to a national popular vote in Madison’s view “seemed on the whole to be liable to the fewest objections.” In other words, the South feared that Northern voting power would result in the emancipation of the slaves whom the Southern economy was wholly dependent on and the abolition of the institution that formed the basis of life and culture in the antebellum South.

The Electoral College was the solution. An Electoral College system would base representation on total population, rather than total enfranchised population. In the Electoral College, the number of votes each state has is the state’s combined number of senators and representatives to the House. The 3/5 compromise was leveraged to count slaves in the population determining a state’s number of representatives to the House even though they had no actual voting power. Thus, the size of the South’s congressional delegation increased by 42%, and the South’s enfranchised (white, landowning) population was granted disproportionate influence. Massachusetts Congressman Samuel Thatcher complained that “the representation of slaves adds 13 members to this House in the present Congress, and 18 Electors of President and Vice President at the next election.” Perversely, the greater the enslaved population, the greater the power held by enfranchised white residents. That concept remains true today. The more people disenfranchised, the more power is held by those who are not; the more people of color oppressed under mass incarceration, felony disenfranchisement, and voter suppression, the more power is held by enfranchised white residents.

It is a myth that the Electoral College was built to balance political stability with democracy. It is a myth that the Electoral College was built for the protection of small states. To illustrate my point, delegates from South Carolina, a large state at the time with about 250,000 residents, supported the Electoral College not because they represented a small state, but because 100,000 (43%) of their residents were enslaved. The primary conflict during the Constitutional Convention was not between small states and large states. It was between slave states and free states. As Yale professor of constitutional law Akhil Reed Amar puts it, “the deepest political divisions in America have always run not between big and small states, but between the north and the south, and between the coasts and the interior.”

Time and again, the Electoral College, as designed, has failed to facilitate civil and accurate elections. In 1800, Thomas Jefferson tied with Aaron Burr in the Electoral College, leaving the election to the House of Representatives and very nearly leading to civil violence by outraged Jefferson supporters. In the end, Jefferson won the presidency. But, in Professor Amar’s words, “Thomas Jefferson metaphorically rode into the executive mansion on the backs of slaves.” Up until Abraham Lincoln’s election in 1860, there was an almost uninterrupted trend of Southern, slaveholding presidents.

The failure of the Electoral College in 1876 was particularly controversial and impactful. Samuel Tilden won a majority of the popular vote, but 20 electoral votes were disputed in Florida, Louisiana, and South Carolina. The fate of the 20 electoral votes was left to an Electoral Commission which awarded those votes to Rutherford B. Hayes. In exchange for the presidency, Hayes agreed to withdraw federal troops from the post-Civil War South. The result: the end of Reconstruction and the beginning of Jim Crow.

1824, 1876, 1888, 2000, 2016: in each of these elections, the wrong person was named president. Each of these elections produced a president who had not won the popular vote.

–Alex Li

Part 2  Legitimacy, Legitimacy, Legitimacy