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Vox, November 2016

Every four years, we elect a president in this country, and we do it in a strange way: via the Electoral College. The reasons for the Electoral College are unclear to most people. On the surface, it appears anti-democratic and needlessly complicated.

Why not rely on a popular vote, as almost every other democracy does? If a popular vote makes sense for gubernatorial elections, why doesn’t it make sense for presidential elections? What did the American founders have in mind when they erected this ostensible firewall against majority will?

Professor Akhil Reed Amar is the Sterling professor of law and political science at Yale University. A specialist in constitutional law, Amar is among America’s five most-cited legal scholars under the age of 60.

He’s also written extensively about the origins and utility of the Electoral College, most recently in his new book, The Constitution Today.

In the wake of last week’s election, I reached out to Amar to get his thoughts on the justness of our current system. I wanted to know why the Electoral College exists, whether it’s anti-democratic by design, and if he believes there’s any chance of the electors intervening this year.

Our conversation, lightly edited for length and clarity, follows.

Sean Illing

Let’s start with this: Why does the Electoral College exist? Is it exclusively about federalism and slavery?

Akhil Reed Amar

There are several standard stories that I learned in school, and then there's an emerging story that I find more explanatory. I learned in school that it was a balance between big and small states. But the real divisions in America have never been big and small states; they're between North and South, and between coasts and the center.

The House versus Senate is big versus small state, but from the beginning big states have almost always prevailed in the Electoral College. We've only had three small-state presidents in American history: Zachary Taylor, Franklin Pierce, and Bill Clinton. All of the early presidents came from big states. So that theory isn't particularly explanatory.

Then there's the theory that the framers really didn't believe in democracy. But they put the Constitution to a vote, they created a House of Representatives that was directly elected, they believed in direct election of governors, and there are all sorts of other democratic features in the Constitution. So that theory isn't so explanatory.

There is an idea that democracy doesn't work continentally because there are informational problems. How are people on one part of the continent supposed to know how good someone is on another part of the continent? But once political parties appear on the scene, they have platforms. And ordinary people know what they stand for, and presidential candidates are linked to local slates of politicians. So that problem is solved.

So what's the real answer? In my view, it's slavery. In a direct election system, the South would have lost every time because a huge percentage of its population was slaves, and slaves couldn't vote. But an Electoral College allows states to count slaves, albeit at a discount (the three-fifths clause), and that's what gave the South the inside track in presidential elections. And thus it's no surprise that eight of the first nine presidential races were won by a Virginian. (Virginia was the most populous state at the time, and had a massive slave population that boosted its electoral vote count.)

This pro-slavery compromise was not clear to everyone when the Constitution was adopted, but it was clearly evident to everyone when the Electoral College was amended after the Jefferson-Adams contest of 1796 and 1800. These elections were decided, in large part, by the extra electoral votes created by slavery. Without the 13 extra electoral votes created by Southern slavery, John Adams would've won even in 1800, and every federalist knows that after the election.

And yet when the Constitution is amended, the slavery bias is preserved.

Sean Illing

So this raises an obvious question: Why do we still have the Electoral College? What’s the utility now?

Akhil Reed Amar

Well, inertia is one reason. It's the system that we have. A constitutional amendment is a very difficult thing to accomplish. As a matter of public education, most people are not taught the slavery story. They're taught that the Electoral College was about, say, federalism and institutional checks.

They're not told that the Electoral College was not the framers’ finest hour. ...
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