The Framers at the Constitutional Convention were initially uncertain regarding how the President should be elected. For most of the convention, they favored appointment by Congress, but fears that the President would become too dependent on Congress persuaded them to entrust his selection to an independent body of electors – the Electoral College. In the Framers’ expectation, however, the Electoral College would just identify and nominate potential candidates; the House of Representatives would do the actual electing, selecting the winner from among the top candidates nominated by the College. Moreover, the Framers envisioned that the choice of President would be made on meritocratic, not partisan, grounds. After the Washington administration, however, national political parties emerged, transforming the Presidential election into a partisan contest. In this newly partisan environment, each party assumed the responsibility for selecting its nominee, and they initially did so through informal discussions among prominent party leaders.

The Electoral College can misfire, electing a president who loses the popular vote (as in 2000 and 2016), but the presidential nomination process can misfire as well, producing a nominee (as in 1952 or, more recently, 2016) who is less popular among party voters than other candidates in the party. The cause of this is the byzantine web of state laws and party rules governing the process. This book explores those rules, enabling us to make sense of the process and understand how presidential candidates have been selected throughout American history. Surprisingly, for much of American history, the major party’s nominees were chosen by party leaders, not ordinary voters, and even today, the process is far less democratic than many imagine. Not every voter is able to participate in the process, and not every vote is weighted equally. This book examines the evolution of the rules governing the nomination process and how those rules contribute to the increasing ideological polarization of our politics today.

This is the first of two chapters that relate the myriad ways in which state government has impeded true democracy in the United States. In this chapter, the focus is on those counter-majoritarian distortions that are hardwired into the Constitution. These structural barriers to majority rule include equal representation of small states and large states in the US Senate; the Electoral College; the constitutional provision under which a majority of state delegations to the US House of Representatives choose the president when there is no Electoral College majority; and the processes for appointing federal judges and amending the Constitution.

It is not possible to argue that the framers wisely created the electoral college and provided a sound basis for selecting the president in the twenty-first century. The electoral college does not work at all as the framers anticipated. Electors rarely exercise discretion and are condemned when they do. Instead, they are agents of political parties, which did not exist in 1787. The House has not selected the president since 1824. In addition, most of the motivations behind the creation of the electoral college are simply irrelevant today. Legislative election is not an option, there is little danger that the president will be too powerful if directly elected, voters have extraordinary access to information on the candidates, there is no justification at all for either electors or state legislatures to exercise discretion in selecting the president, defending the interests of slavery is unthinkable, and the short-term pressures have long dissipated. Those delegates who wanted electors to exercise independent judgment or be selected by state legislatures would soon be disappointed, and there is no support—and no justification—today for either option. In addition, the broad thrust of constitutional revision over the past two centuries has been in the direction of democratization and majority rule.

The presidential elections of 2016 and 2020 were two of the most disconcerting in American history. In 2016, the winning candidate lost the popular vote by 3 million votes and never obtained the support of the public. In 2020, the incumbent president lost by 7 million votes. Instead of conceding defeat, he exploited the complex system of certifying the results to prolong the denouement of the election, attempting to subvert the U.S. democratic process. Both elections raise serious doubts about democracy in America. At the core of these misgivings is the electoral college.

A core justification for the electoral college, and its violations of political equality, is that it is necessary to protect important interests that would be overlooked or harmed under a system of direct election of the president. Yet such claims are based on faulty premises. States—including states with small populations—do not embody coherent, unified interests and communities, and they have little need for protection. Even if they did, the electoral college does not provide it. Contrary to the claims of its supporters, candidates do not pay attention to small states. The electoral college actually distorts the campaign by discouraging candidates from paying attention to small states and to much of the rest of the country as well. Instead, they devote their attention to competitive states. It is also the case that people of color do not benefit from the electoral college, because they are not well positioned to determine the outcomes in states. As a result, the electoral college system discourages attention to their interests. It does, however, provide the potential for any cohesive special interest concentrated in a large, competitive state to exercise disproportionate power.

The electoral college is an extraordinarily complex mechanism for selecting a president. State and national laws drawn to implement the electoral college system have only added to the complexity—and the risks of a malfunction. The allocation of electoral votes among the states may not accurately represent the citizens resident in those states. Electors are not wise elites, and they may make errors or violate their charges when casting their votes. The constitutional provisions and laws required to implement the electoral college are open to multiple interpretations and may well involve Congress and the courts in partisan wrangling over which candidate won a state and which electoral votes to count. Their decisions may misrepresent the public’s wishes. Donald Trump’s attempts both to create alternative slates of electors and to reject certified electors from states won by Joe Biden could only occur because there was an electoral college. The absence of a right to vote in presidential elections is certainly inconsistent with our notions of democracy. Similarly, the selection of the ultimate choosers of the president—electors—by party committees is contrary to our notions of transparency and popular participation. Allowing a state legislature to choose the winning slate of electors of a state makes a mockery of popular selection of the president.

The electoral college violates political equality. It is not a neutral counting device. The use of the unit-vote system, the allocation of electoral votes among the states, differences in voter turnout among the states, and the vagaries of the size of the U.S. House of Representatives allow the electoral college to favor some citizens over others, depending solely upon the state in which voters cast their votes for president. As a result, popular votes do not directly translate into electoral votes, and the candidate receiving the most popular votes may lose the election, as has happened twice in the twenty-first century. Thus, the electoral college is not just an archaic mechanism for counting the votes. It is an institution that aggregates popular votes in an inherently unjust manner. In addition, electors may violate their oaths to support their party’s candidates, and many U.S. citizens are disenfranchised.

Chapter 3 looks at how the Southern minority used the three-fifths clause, the Electoral College, and parity in the Senate to protect itself from “tyranny” of the Northern majority. Even with the three-fifths clause, the South could not overcome the North’s increasing population advantage. Nonetheless, the three-fifths clause’s “slave bonus” did limit the South’s losses in the House. While the South’s determination to have the number of slave states equal the number of free states ensured that the North would not have a majority. Both parity in the Senate and the three-fifths clause inflated the South’s representation in the Electoral College. Of these two proslavery constitutional provisions, parity in the Senate provided greater protection to the South. Northerners understood only too well the political benefits the three-fifths clause and parity in the Senate conferred upon the South. Antislavery advocates bristled at this, while conservatives believed it was the result of the Founders’ grand plan. Both Northerners and Southerners realized that the three-fifths clause and parity in the Senate added to the difficulty of securing congressional approval of an antislavery amendment. In 1850, the South lost parity in the Senate, never to regain it.