It’s easy enough to explain why “The Electoral College” exists, if you think that it does. Dating back to when the pro-Slavery South had to be electorally over-represented—relative to the anti-slavery North in the period leading up to the Civil War—”The Electoral College” was, like the notorious three-fifths, one of the many compromises that tried to keep the union united (until they didn’t). Arguments against “The Electoral College” tend to flow easily out of this explanation: like the rest of the union-preserving compromises that led up to the Civil War, it was intended less to express the public will than to control and limit and shape it. If the ideal is one person, one vote—and if the winning candidate should be the one who gets the most votes—then it will scan as a scandal that “The Electoral College” can, and has, produced presidents who have received fewer votes than their opponents.
Is it a scandal? Trump and George W. Bush were elected with fewer votes than their opponents, and it could happen again; some votes count more than others, and to this dis-proportion, we give the name “The Electoral College.” All the votes in one state go to one candidate—a winner-take-all system that disenfranchises the loser’s voters—while less-populated states are given more influence than their population size should warrant, since each state gets a number of electors equal to the number of its congressional representative, and that number is weighted by the intentionally undemocratic Senate.
(“If elections were open to all classes of people, the property of landed proprietors would be insecure,” as Madison put it, arguing against mass democracy; “our government ought to secure the permanent interests of the country against innovation [and] to be so constituted as to protect the minority of the opulent against the majority. The Senate, therefore, ought to be this body.”)
This is the shape the debate usually takes, presuming that The Electoral College (like the Senate, itself) is a relic of the much less democratic system that the original founders had wanted, surviving by the force of inertia, built-in friction against change, and the aura of tradition. Not everyone knows all of this, because not everyone knows that our elections even work this way (or that the Senate was explicitly designed to curb “elections open to all classes of people”). And not everyone even disagrees with it. The faction of “we’re not a Democracy, we’re a Republic” people—who coincidentally tend to be Republicans, not democrats—would assert that this is precisely how it’s supposed to work.
But when we argue about whether or not The Electoral College is a good thing, this is how we tend to argue the question: is it a good thing that the founders established our elections in a not-quite-fully-democratic way, and we should, thus, conserve it? Or is it a bad thing, and we should change it to a more democratic system?
What we don’t tend to ask is whether it’s a thing at all, or argue that it exists.
I’m not going to argue that it’s a bad thing; I’m more interested in why we pretend it is a thing in the first place. The argument that it’s a good thing presumes its thingness—since it can only be good if it exists—but the words “electoral college” cannot be found in the Constitution, nor in the 12th Amendment that modified it in 1804. And though the framers delegate to the states the job of selecting a group of electors to vote for president—and most of the states eventually selected direct voting as the way these electors would be selected—the phrase “electoral college” would not be written into federal law until 1845, a full fifty-seven years after the first presidential election. Today, everyone agrees that “The Electoral College” exists and is a thing—and, in a sense, that makes it true—but try to picture it. Where is it? Who is it?
This is because the process of electing a president never worked much like the founders had intended (nor is “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” much of an intention anyway). But what we do now—and what was done in the mid-19th century—is significantly different than what the founders had imagined, something that’s true at every stage of the nation’s history: our presidential elections have always been ad hoc and improvised, building on but modifying past precedent, and, so, always looking different than they did previously or would later. Indeed, to describe what a presidential election actually now consists of—multi-year campaigns, party primaries, debates, selecting a vice president, polling, election day, official concession calls, etc—is to compile a list of things no one in late 18th century had anticipated or prepared for, and a list of things that we often do differently each time.
For example, the original scheme had been for each of the electors to vote for two men (obviously men); after the votes were counted, the president would be the person with the most votes and vice president would be the one with the second highest. But the founders had expected this would mostly be a nominating round; if no candidate received a majority—which is what they expected would happen most of the time—then the selection would pass to the House of Representatives, who would select from this list of names. In fact, this very rarely happened. Instead of the House deciding 19 out of 20 elections—as George Mason famously predicted—it only happened twice, in 1800 and 1824, and it would be hard to imagine it happening again.
The reason is simple: the parties (who are mentioned nowhere in the constitution) swiftly took over the nomination process—and if you go through the state laws on the selection of electors, you will find that all of them essentially describe how each political party will select their slate of electors—which makes it massively more likely that one candidate will accumulate a simple majority in the first round. Each party narrows the choice down to one, and if there are only two candidates—because there are only two parties—a tie is the only (massively unlikely) way to prevent a simple majority. But if the most central and fundamental fact of American politics—our two-party system—is nowhere to be found in any founding documents, how “traditional” can the rest of it be?
In such a context, it’s hard to think of “The Electoral College” as a constitutional relic that has survived many changes; because nothing else is the same, the thing we use that phrase to describe is, itself, a function of those changes. It might be the same thumb on the scale, but the scale keeps changing.
“Thingness” is rhetoric, an assertion of inertness; a stone stays a stone unless something breaks it.
But, ironically, things only become things when we make them into things, and without a name and a categorical imaginary—and the rhetorical assertion of it—a thing can’t be a thing to accrue qualities, history, or consequences. And so, people appeal to the thingness of “the” Electoral College because they want to fetishize the inertness of a very particular aspect of what is otherwise a hot mess of an ever-changing process, to insist on the sanctity of the one aspect of an otherwise totally renovated and non-original structure. Under the guise of conserving the Founders’ much-trampled and discarded intentions, then, they will argue that this thing which was made should not be unmade, disguising themselves in so doing as traditionalists, originalists, and conservatives. Though it’s the sort of unwieldy and eccentric system that no one would design, today—they might admit, in moments of generosity—nevertheless, there it is, and unless we unmake it, there it will remain.
But like elections, stones are only things if we snapshot them into a single moment of time; you have to expand your frame only a little to see a stone as a thing that happens because of what happens around it, the geological interaction between rivers and volcanoes and backhoes and a Makita PW5001C 4-Inch Hook and Loop Electronic Wet Stone Polisher. Like the Electoral College, stones only become things when they are made. And those who insist it to be an autonomously-existing thing, do so because without that rhetorical act of naming it would cease to be a noun and it would become something more like an adjective for anti-democratic, or an adverbial form of doing elections in an undemocratic way. If it wasn’t a thing, in other words, it might be a scandal.
Aaron Bady
