In an innovation some have denounced as unconstitutional, a recent Maryland statute attempts to evade the electoral college system. The Maryland law will award the state’s electoral votes to the presidential candidate with the most popular votes nationwide — so long as a majority of electoral votes will be cast in the same fashion.
Those decrying the statute as unconstitutional, though, neglect the language of the Constitution and the history of the Electoral College.
In the words of James Wilson of Pennsylvania, who dreamed up the Electoral College, the delegates at the Philadelphia Convention in 1787 ‘‘were perplexed with no part of this plan so much as with the mode of choosing the President.”
Although Wilson and James Madison of Virginia argued for popular election of the president, other delegates resisted. The people were poorly informed, they complained, and could not be trusted. Popular election, according to George Mason of Virginia, makes as much sense as having a blind man choose colors.
The delegates’ debate over presidential selection careened wildly. Maybe Congress should choose the president? No, that would convert him into ‘‘the cringing dependent of powerful men.”
Perhaps three chief executives? Or maybe the state governors could choose the president? Four state delegations supported a president who served for life.
A big part of the problem was that the delegates did not grapple with the presidency until the final weeks of the convention. The presidency provisions, in Madison’s delicate phrase, were ‘‘not exempt from a degree of the hurrying influence produced by fatigue and impatience.”
So they chose the electoral system, with each state having the same number of electoral votes as its total of senators and congressional representatives. The Constitution states only that each state legislature will prescribe the method of choosing electors. That’s it. That’s all they wrote.
The delegates at Philadelphia expected the electors to be wise people who would vote for the best candidate available. Rarely, though, did they expect the electors to determine the election. George Mason predicted that 19 of 20 elections would be decided by the House of Representatives in a second round of balloting. (He was wrong about that, too.)
The elector system developed in ways not anticipated by those ‘‘greatest minds” who gathered in the summer of 1787. Early presidential elections were such a hash that the 12th Amendment in 1803 provided for separate balloting for the president and vice president. That repaired the worst of the problems.
For many years, a number of state legislatures chose electors, excluding the people from presidential elections. The practice developed of having electors ‘‘pledged” for a presidential candidate, though the Constitution does not require such pledges. As recently as 1960, two states picked unpledged electors who could support any candidate they wished.
Even today there is no uniform way of awarding electoral votes. Maine and Nebraska award theirs on a proportionate basis, while the other 48 follow a winner-take-all approach.
The new Maryland law aims at one grinding legacy of the elector system: the candidate with the greatest popular vote can ‘‘lose” the election.
That has happened four times: in 1824 when John Quincy Adams won in the House of Representatives, in 1876 when Rutherford B. Hayes won by a single electoral vote, in 1888 with Benjamin Harrison, and in 2000 with George W. Bush.
The Maryland statute is a clever approach to the problem. It does, as Lee complains, evade the requirement of a constitutional amendment. Perhaps that’s a bad idea. And it would feel odd for a state that voted overwhelmingly for Candidate A to cast its electoral votes for Candidate B because he won the national popular vote.
Odd, yes, but unconstitutional? Nope. Not even close.