The Electoral College and Majority Rule: Restoring the Jeffersonian Vision for Presidential Elections

Posted: 11 Nov 2017

See all articles by Edward B. Foley

Edward B. Foley

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: November 9, 2017

Abstract

The 2016 election contravened how the Electoral College, as revised by the Twelfth Amendment in 1804, was supposed to work: one-third of Donald Trump’s electoral votes, 101 of 304, came from six states where he received less than 50% of the popular vote. Based on the experience of the first four presidential elections, which included states using different forms of runoffs if no candidate received a popular-vote majority, the authors of the Twelfth Amendment never envisioned that states would award all their electors to a candidate with only a plurality of popular votes statewide. Congress, then controlled by allies of Thomas Jefferson, wanted the Amendment to produce a victorious president who—like Jefferson himself—had majority support among voters in the states that formed the president’s Electoral College victory.

An analysis of all presidential elections before 2016 shows only three (1844, 1884 and 2000) in which the Electoral College winner was the candidate who would have lost if the election had conformed to the Jeffersonian vision for how the Twelfth Amendment was supposed to work. In all three, the aberration from the Jeffersonian vision was attributable to malfeasance in a single state: fraud in New York in 1844 and 1884, and the butterfly ballot (and related administrative misdeeds) in Florida in 2000. In each instance, it was easy to overlook that “plurality winner-take-all” contravenes the original Jeffersonian vision, because avoiding the particular state-specific malfeasance would have produced the appropriate Jeffersonian winner. By contrast, in 2016 the six-state deviation from the original Jeffersonian premises of the Twelfth Amendment—none of which is attributable to fraud or any other kind of localized administrative error—shows the need for a different kind of structural fix.

States can restore the Jeffersonian vision by returning to runoffs, as used originally, or adopting Instant Runoff Voting (which, by giving voters ballots that let them rank preferences among candidates, enables a runoff to occur without need for a second round of voting). Each state currently has the constitutional power to put either option in place for that particular state in the next presidential election; it does not require a constitutional amendment or multi-state compact. If just Florida and Michigan had adopted this reform before 2016, it would have changed the outcome of the election—assuming, as is plausible, that Hillary Clinton would have won runoffs there.

Suggested Citation

Foley, Edward B., The Electoral College and Majority Rule: Restoring the Jeffersonian Vision for Presidential Elections (November 9, 2017). Ohio State Public Law Working Paper No. 429, Available at SSRN: https://ssrn.com/abstract=3067992

Edward B. Foley (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

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