January 4, 2021
Bob Buckley, partner at White, Graham, Buckley & Carr, is a regular columnist for The Examiner of East Jackson County. In his latest column, Buckley examines the most intriguing parts of the Electoral College’s history, including the Great Compromise of 1787, the original language around slave states and the current debate about its relevancy in determining the next president.
The article, The Complicated History of the Electoral College, was published in the Dec. 25 edition of The Examiner. An excerpt from the article is below.
The Electoral College has met, and Joseph Biden received more than 270 electoral votes to be elected president of the United States. There is currently a debate over whether the Electoral College method of electing president should be continued.
In 2020, Biden won the popular vote and received enough votes to win the Electoral College vote. Five times in American history, the person who received the most popular votes lost the Electoral College vote. It happened most recently in 2016, when President Trump was elected.
Many wonder how we arrived at this point where a candidate can receive several million more votes, yet lose the election. It all began when the framers of our Constitution were deciding how to elect a president. It is said that at the time our forefathers were trying to decide how to elect a president. No country did so with a popular vote.
Many thought Congress should elect the president, while others thought it should be by popular vote. Instead, it was decided that each state should select electors based on the number of representatives and senators each state had.
It was called the Great Compromise, which occurred after extensive debate in 1787. The less populous states were fearful that the more populated states would control all legislation. Thus it resulted in every state having two senators and a number of representatives based on proportional representation. Under Article II, Section 1, Clauses 2 and 3, the legislature of each state determines the manner of how the electors are selected equal to the number of senators and representatives to which the state is entitled in Congress. Congress determines the time of choosing the electors and the day on which they shall give their votes, which day shall be the same throughout the United States.
The number of representatives in each state is determined by the census. Thus the number can change in each state, as it did after the 2010 census. Missouri lost a representative and went from nine to eight representatives; New York and Ohio lost two representatives each. Seven states, in addition to Missouri, lost one vote. Six states gained one representative, including Arizona, Nevada, and South Carolina. Florida gained two seats, and Texas gained four.
Forty-eight states appoint all electors on a “winner takes all” basis. Maine and Nebraska award the electors by congressional district and then give the other two electoral votes for their senators on a statewide basis.
Another historical aspect of the Electoral College was consideration of the number of slaves in Southern states. The Southern states wanted the slaves to be counted so they could have more electoral votes. Of course, slaves could not vote, but the Southerners wanted to count them anyway. The “three-fifths compromise” led to each slave being counted as three-fifths of a person. The Constitution might not have been approved without this compromise. Of course, it has no application today.
One of the major complaints of the Electoral College is the fact that states such as Wyoming, Montana, Alaska, Delaware, Vermont, North Dakota and South Dakota are guaranteed three Electoral College votes for their two senators and one representative. This leads to a single representative in the smaller states representing fewer citizens than those in more populous states such as California, Florida and Texas.