THE BLOG
02/01/2013 02:57 pm ET Updated Apr 03, 2013

The Electoral Vote Changes: Follow The Constitution

Today, many Democrats and self-proclaimed progressives seem outraged by talk of the Republican Party planning to change the method used to allocate Electoral College votes in some states. Take Michigan, for example. The Democratic candidate has beaten the Republican candidate in Michigan's statewide popular vote in six consecutive elections -- that's 20 years of dominance from 1992 through 2012. No GOP candidate since George H.W. Bush in 1988 has carried Michigan. How else can the Republicans get any of Michigan's electoral votes unless they change the rules? And just how undemocratic, even un-American, can this be if it's been done before -- by the Democrats?

From 1856 -- the first time the Republican Party ran a presidential candidate in Michigan -- through 1888, nine consecutive elections over 32 years, the Republican won the statewide popular vote in Michigan. Democrats came up empty. In advance of the 1892 election a Democratic Michigan legislature changed the rules to award electoral votes by Congressional district. This is exactly what today's Michigan Republicans may be considering. What happened? In the 1892 election the Republicans won the Michigan popular vote -- for the 10th straight time! -- but the Democrats were awarded five of Michigan's 14 electoral votes. Was that wrong? Un-democratic? Un-American? Surly not. All the Democratic Party did was to play by the rules laid out in the Constitution. We all know, of course, that our beloved Constitution -- the document we credit for American Exceptionalism -- doesn't even mention a popular vote election to choose a president.

Come on, raise your hand if you think our Constitution contains a single word about a popular election for the office of President of the United States. Sorry, but nowhere does it say there must be an election of any kind outside the Electoral College.

Article II, Section 1 of the Constitution specifically gives the states the power to select their presidential electors as each state sees fit. They don't even have to do it all the same way -- and historically they haven't. The Electoral College system never intended that the winner of a national popular vote would become the next president. How could it if the system never called for an election in the first place? The popular vote -- a term that will not be found anywhere in the Constitution -- is a politically meaningless invention. It does not decide who becomes president. And when there is a popular vote election, what weight does it carry? How important is it? Consider this, four times -- 1824, 1876, 1888, and 2000 -- the candidate winning the national popular vote did not become president. These results did not offend the constitution. Life, and government in America went on undisturbed. The Republic was not lost. How vital to our Founding Fathers was the idea of a national popular vote election? Did they even consider the idea? Come on, raise your hand if you think our most esteemed Founding Fathers won "elections" to become president.

The three most revered original American revolutionary patriots, George Washington, John Adams and Thomas Jefferson, each became president. They were our first three presidents winning consecutively in 1789, 1792, 1796, 1800 and 1804. For the initial 20 years of this republic these three great men were our only Chief Executives. Yet, not one of them ever even contested a national popular vote election. When Washington "ran" in 1789 and again in 1792, only Pennsylvania and Maryland held popular vote elections to choose their electors. John Adams won in 1796 with popular elections held in only two states, Pennsylvania and Georgia. After two elections, by 1796 Maryland had already called it quits on a popular vote. Thomas Jefferson "ran" for president in 1800 when only Rhode Island and Virginia held popular vote elections. By then even Pennsylvania had enough. And even in 1804, for Jefferson's reelection, only six of the now 17 states decided to choose their electors by having a popular vote election. What did all the other states do? Constitutionally, whatever they pleased -- but nearly all had their state legislature pick the electors.

In 1824 we had the first of our four "loser-winners" when John Quincy Adams, after finishing well behind Andrew Jackson in the popular vote, was elected not by the Electoral College, but by a vote of the House of Representatives. That result was, and is still considered by many, a disgrace, a violation of the popular will. But was it? Did the popular vote really tell the whole story? In 1824, six of the 24 states (DE, GA, LA, NY, SC, VT) did not have a popular vote election for president, and six more states (IL, KY, MD, MO, ME, TN) allocated their electors by district, not based on who won the statewide popular vote. Isn't that exactly what some Republicans may be thinking about now? And hasn't that produced outrage from non-Republicans? Where was the outrage in 1824, or every election that preceded it? How can following the constitution -- the way we have done in the past -- so enrage people to protest? Many say changing the rules, even when proper and legal, is unfair. What's fair? What's not?

As late as 1848 -- 72 years after the founding of the United States -- Massachusetts instituted a rule that required a presidential candidate to win at least 50 percent of the popular vote to win all the state's electors. And of course that didn't happen in a three-way race in 1848. So, the Massachusetts legislature took the task of elector selection for themselves and awarded all 12 electoral votes to the Whig Party despite the fact that the Free Soil Party and Democratic Party candidates received 54.6 percent of the popular vote. Where was the outrage then?

Although allocating electors by Congressional district ended after 1832, some 60 years later Democrats in Michigan returned to that system. And there was nothing undemocratic or un-American and certainly nothing unconstitutional going on. Put simply, legally changing the elector selection method is a deeply ingrained part of the American electoral experience. No one should be shocked or surprised, or especially outraged, at contemporary attempts to seek this kind of electoral advantage. This is our national heritage, the exceptional natural legacy of our constitutional system. If you don't like it, feel free to amend the Constitution. It's been done before, often for issues a lot less important.

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