Why the Founders Chose the Electoral College Design

For the 2024 presidential election, political pundits predicted another split between the electoral votes needed to win the White House and the national popular vote. It would have marked the sixth time in American history of such an outcome. Critics and supporters of the Electoral College alike expected a debate in the weeks following the contest between Donald Trump and Kamala Harris. However, those fierce debates did not manifest after election counts indicated that Donald Trump won both. Nevertheless, the subject of how Americans conduct their presidential elections remains important to our civic insights. In the days following the 2024 election, I (Howard Muncy) sat down with Michael Maibach, an ardent defender of the Founders’ Electoral College design. We discussed the origins of the Electoral College, its purpose and history, and recent efforts to discredit the Framers’ unique design.

Howard Muncy: Let’s begin with a brief discussion about the mindset of the men who wrote the US Constitution. What was happening in Philadelphia in 1787?

Michael Maibach: When I give a speech about the Electoral College, I often begin by showing Jacques-Louis David’s famous 1787 painting of Socrates taking the hemlock. I ask the audience, “What’s going on here?” The old man, by majority vote of a jury, was condemned to death for asking questions of the youth and not honoring all the Greek gods. From this jury decision, there was no appeal. It was a simple democracy and swift justice. I then say, “Raise your hand if you are for free speech. And raise your hand if you think democratic majorities—either in juries or assemblies—can become tyrannical.” Two lessons here. The Founders were men of liberty. Indeed, they had a Liberty Bell cast in 1751. And they were deeply skeptical of simple majority rule because man’s nature is—and always will be—broken. To understand the Framers, one must marry them with these two ideas.

Plato was Socrates’ student who witnessed the trial and death of his teacher. From this experience, he writes in The Republic that “democracies always become tyrannical.” A form of majority tyranny took the life of his teacher. Plato’s student Aristotle then wrote the Politics. In it, he deems the cure for democracy a “mixed regime”—what we know as “checks and balances.” From his insights, the Romans created a republic, with a Caesar, a Senate, and republican assemblies: a rough form of the three branches of government we know today. This is outlined in Chapter 6 of The Histories by Polybius. 

I then share an Old Testament passage, Isaiah 33:22. It reads “God is the king, the lawgiver, and the judge.” Here we see the three branches 400 years before Aristotle. 

We then move to Montesquieu’s book The Spirit of the Laws of 1748. Our Founders studied the Bible as well as these books to assist in fashioning the checks and balances of our Constitution—what I call “triangles of freedom.” The Constitution was written in the first instance to ensure liberty by limiting governmental power. As Hamilton wrote in Federalist No. 84, “The entire Constitution is a Bill of Rights.”

HM: Let’s now discuss the Electoral College found in Article II of the Constitution. How does it fit into the American system of checks and balances that you just described? Tell us about its inspiration, its purpose, and how it shapes presidential elections today.

MM: The Electoral College was a solution to a problem the Founders faced in Philadelphia in 1787. The Founders first agreed that Congress would have a House based on population. Because of the “Connecticut Compromise” struck by Roger Sherman and James Madison, the Senate would allow two members per state. Next, they added a federal judiciary. There were trade wars and other problems among the states. Initially, federal courts were meant to resolve interstate legal contests.

With the outline of these two branches agreed, adding the third branch, the executive, became contentious. The delegates wanted an independent executive (and commander-in-chief), but how to choose that person was unclear. They did not agree on the Electoral College design until the last week of the Convention. Do we want to have an election by popular vote, a national popular vote as we would say today? No, because it would always be a person from New York, Boston, Philadelphia, or Virginia. Those were the population centers at the time. Virginia had ten times the population of Georgia, for example. They decided that if Congress elected the president there would be no executive “check” on the other two branches. 

Finally, they agreed to have each state vote for president, and then aggregate their presidential electoral votes to decide the winner. Each state would have a number of electors equal to their total members in the House and Senate. In effect, the Electoral College is a recreation of citizens in the same number as the US Congress but assembled in state capitals only to vote for president and then end their service.

A side note related to having an independent executive: while George Washington said nothing on the floor of the Constitutional Convention, in private conversations, we can assume that he asked his fellow delegates, “Have you ever been on a ship in a storm without a captain? Because for seven years I led the Revolutionary Army against the greatest military in the world. I had thirteen captains under the Articles of Confederation. We need a single commander in chief, especially in time of war.”   

HM: I have heard the Electoral College framed as a contest of running not one election, but fifty. You have made a sports analogy involving the World Series that has stuck with me better than most as a practical explanation of how the votes are counted and matter. Can you share that?

MM: The World Series is about winning the most games, not the most runs. In the 1960 World Series, the Pittsburgh Pirates defeated the New York Yankees four games to three. No one has ever contested that result. But did you know that in those seven games, the Pirates had a total of twenty-seven runs and the Yankees had fifty-five—more than twice as many runs? Is that fair? Most sports use this rule of games—not points—such as the path to the Super Bowl and various stages of March Madness. 

The Electoral College is similar. Only two modern presidents—Kennedy and Carter—did not win the majority of states. Even Lincoln in 1860 with four candidates running won eighteen of the thirty-three states: a majority that legitimized his presidency even though his popular vote total was the lowest in US history at 39.8 percent.

HM: In 2006, critics of the Electoral College launched the National Popular Vote Interstate Compact (NPV). How does that work? Does it pose a real danger to the Electoral College system?

MM: It poses a danger to the Electoral College and to the Constitution itself. The progenitors of the NPV were frustrated that Al Gore had won the popular vote in 2000, but George W. Bush won the electoral vote. While Gore won only 0.5 percent more of the popular vote than Bush, the NPV seeks to be a workaround for the Electoral College. The states that sign on to the NPV Compact agree that no matter how the voters in this state vote, we the state government will instruct our presidential electors to vote for whoever wins the national popular vote. 

Once a sufficient number of states join the NPV so that the Compact has 270 electors in total, it will go into effect during the next presidential election. So far, seventeen states and DC have signed up for a total of 209 electors. My role at Save Our States is nonpartisan. But the fact is that all seventeen legislatures and governors who have adopted the NPV are in one party. If enough states join the NPV to bring the total to 270 electors, it will create a constitutional crisis on election night—a crisis that the US Supreme Court will have to resolve.

The NPV is an unconstitutional compact under the Compact Clause of the Constitution. That Clause—Article I, Section 10, Clause 3—does not allow states to form compacts without the approval of Congress. Remember, the nine small states in Philadelphia in 1787 feared that the larger states, the most populous states, would control everything and combine against the smaller states. Look at the remarks at the Convention by Gunning Bedford, a delegate from Delaware. He begins by saying to the larger states, “Gentlemen, I don’t trust you.”

HM: Some seem to think that the Electoral College system favors one party over the other. Is this true?

MM: From 1904 through 2020, we elected thirty presidents: fifteen Democrats and fifteen Republicans. The Electoral College is not partisan; it is an “election by the states” and it has served us well. It should not be a partisan issue. Unfortunately, one of our two major parties has made it so.

HM: Do you agree that the Electoral College encourages a two-party system and discourages, or even squeezes out, third-party candidates?

MM: We have a two-party system in the United States for one reason: the Electoral College. Eugene V. Debs ran three times for president, once winning 19 percent of the vote but zero electors. In 1992, Ross Perot received 20 percent of the popular vote and also won no electors. What he did was help Bill Clinton defeat George Bush. All but two US states use a winner-take-all all approach. The winner-take-all system says to candidates, “If you are not on one of the two major teams, you are not going to have a chance of winning.” 

That said, if every state disaggregated their electors the way Nebraska and Maine do, it might be a different story. In 2012, Mitt Romney would have defeated Barack Obama if all fifty states had used the Maine and Nebraska approach. This is because Romney won more congressional districts. Our winner-takes-all system has given us a two-party system. And in a republic of more than 300 million people, this is a significant advantage. 

The average EU republic has nine parties. Just imagine if we had nine parties in the US House. We would be changing speakers every time a major issue divided the legislative coalition.

By contrast to our Electoral College system, of the twenty-seven European Union republics, only two have a national popular vote: Cyprus and France. Parliaments elect their heads of government in the other twenty-five. Winston Churchill was never on the ballot of all Englishmen, only his local constituency. In this sense, our system of fifty state elections for president is far more “democratic” than almost all republics around the world.

HM: Let’s examine the Electoral College’s history. In 1824, we had four presidential candidates: John Quincy Adams, Andrew Jackson, Henry Clay, and William Crawford. While Jackson won the most popular votes, none of the four won a majority of the Electoral College vote. The election was thrown into the US House. Are there other examples that have really put the Electoral College to the test?

MM: In the twentieth century, every president won both the Electoral College and the national popular vote. But in the nineteenth century, we had three minority-vote presidents. 

You have already mentioned the 1824 election. As for 1876, no one will ever know who won that election. The reason is that because of Reconstruction, we still had federal troops occupying three states: South Carolina, Florida, and Louisiana. During the voting, there was a great deal of violence in the South as freed slaves were allowed to vote for the first time. Many localities had contested results, and the federal troops turned in the results that they were given. Because neither Hayes nor Tilden had enough electoral votes apart from those states, a congressional commission was formed to select a winner. The commission included five senators, five representatives, and five Supreme Court justices. This involved seven Democrats, seven Republicans, and one independent. That commission chose Republican Rutherford B. Hayes over Democrat Samuel Tilden. 

In being selected, Hayes agreed to withdraw federal troops from the South. This ended Reconstruction and set the stage for Jim Crow. This also led to the passage of the Electoral Count Act of 1887 just before the election of 1888, another close election. In 1888 Harrison defeated Cleveland by 0.6 percent of the vote but won twenty of the thirty-eight states. 

Finally, we have the elections of 2000 and 2016. In both of those elections, the winners, Bush, and Trump, won thirty of our fifty states while their opponents won a majority of the popular vote.

Lincoln only won in 1860 because there were four candidates: two Democrats and one independent. They divided the vote. Lincoln only got 39.8 percent of the vote, but he won eighteen of the thirty-three states—a majority of the states. For this reason, his election was seen as legitimate. Here, we see the deep value of the Electoral College vote as the nation headed for civil war. Lincoln had a mandate from the states.

HM:  I have always thought that the election of 1912 was interesting and could have resulted in an electoral split. In that election, there were three heavyweights from the twentieth century—Roosevelt, Taft, and Wilson. However, Wilson won that election in an electoral landslide.

MM:  Wilson only won 41.8 percent of the popular vote, but the electoral votes of forty states! This is because 50.6 percent of Americans split their votes between Roosevelt and Taft. Third parties do not win in America. Neither do divided parties. That consequential election set the stage for the Sixteenth and Seventeenth Amendments—the income tax and the direct election of senators. Both undermine American federalism. Significant tax dollars were directed to DC and US Senate races became nationalized. Today 80 percent of campaign funds in US Senate races come from outside those states, for example.

HM: Modern critics of the Electoral College say it was created to protect southern slavery. Is that right or wrong?

MM: In 1776, slavery and the slave trade existed in every nation of the world and had done so across centuries. Slavery was not invented in 1619 in Virginia. The British, Spanish, and Portuguese brought slavery to the New World in the seventeenth century, long before America was an idea.

While the Founders did not, in their day, abolish slavery, they began the public debate about its end, beginning with the Declaration of Independence. In 1787, Congress passed the Northwest Ordinance, which banned slavery in those new territories. 

At the time of the Constitutional Convention, all thirteen states had slaves. The Three-Fifths Compromise was a debate between those who wanted slaves counted for purposes of representation in the US House, and those who wanted the opposite. The compromise was that slaves were counted as three-fifths for congressional apportionment. The new Constitution permitted the Congress to outlaw the slave trade in 1808. Jefferson signed the law that made this happen.

The Constitution was adopted to help thirteen sovereign states become a nation. We needed a federal court system, we needed a currency, we needed a military, and we needed free trade among the states. The drive to have a constitution was all about those goals, not about slavery. The French, British, and Spanish were still in North America seeking ways to divide our new nation. Agreeing on a national charter was vital to the long term success of the American Revolution.

HM: Do you predict anything in the next twenty years that is either hopeful or concerning about this aspect of our Constitution?

MM: We have a Constitution—the world’s oldest. Do we have citizens who understand it and love the way it guards our liberty? Civic education starting at home and in grammar schools is vital to the health of our republic. We must explain why we have a Constitution, how it works, how it keeps us free, and how it gives voice to minority viewpoints. The Founders feared tyrannies, especially majority tyrannies. We remain free not because of the Bill of Rights, but because of the dynamic checks and balances in our national and state constitutions. 

John Adams said that this is a constitution only for a faithful people. In his farewell address, George Washington said the same thing. We must believe that while all people are broken, they are capable of forgiveness and redemption. 

In his farewell address, Ronald Reagan said that the ideas of freedom are not transferred in the bloodstream. They are reaffirmed by every generation. How we secure our freedom under this Constitution must be taught, studied, and honored. After a forty-year business career, I am investing my time in defending American federalism and the Constitution’s Electoral College design. We must sustain this Constitution.

HM: Any additional thoughts that you would like to share?

MM: The Founders were men of the Newtonian Age. There were three portraits in Jefferson’s library: John Locke, Francis Bacon, and Isaac Newton. Jefferson wrote that this was “my trinity of the three greatest men the world has ever produced.” Newton was the father of modern scientific physics. The strongest bridge is a truss bridge, which is a set of triangles. The strongest geometric figure is the triangle. We see this in Isaiah 33:22, that God is the king, the lawgiver, and the judge.

The Founders created a republican clock, a set of countervailing powers in our three branches. The Constitution’s guarantee clause required that each state also have a republican form of government complete with the three branches. Federalist No. 51 by Madison speaks of our “compound republic.” I call these “Triangles of Freedom.”

When people ask, “Are you for democracy?” I say “Yes, times three.”  A law must pass the House and the Senate and be signed by the President. We have triangles of freedom in our court system. The district court, the appellate court, and the Supreme Court. We also have this in the corporate world. Corporations have managers, boards of directors, and outside auditors. It is the same with nonprofits. Anywhere you see human flourishing you see “triangles of freedom.” 

I often end my speeches by saying, “Let’s close on a positive note—the sinking of the Titanic in 1912.” People laugh as I project a chart showing the stages of the sinking of that famous ship. I remind the audience that the ship’s designer did not close the top of each compartment. Thus, when the water filled one compartment it spilled into the next, eventually sinking the ship.

In the 2000 presidential election, we saw the need for a Florida recount. What occurred? The voters in forty-nine states stood by while Florida recounted their votes. Our fifty-state compartments were each sealed. The result was then agreed. In sharp contrast, if we had a close national popular vote could we recount 150 million ballots in fifty states, each with unique election rules? And with the subsequent litigation in each state, would we ever agree on a winner?

HM: Are there books and scholars that you recommend for further study?

MM: Here are a few:

The Federalist (Hamilton) Nos. 68 and 69

Judith Best’s book, The Case Against Direct Election of the President: A Defense of the Electoral College. 

Gary Gregg’s Securing Democracy: Why We Have an Electoral College. 

Tara Ross’s The Indispensable Electoral College: How the Founders’ Plan Saves Our Country from Mob Rule. 

Key scholars include my teachers, Herbert Storing and Martin Diamond. Walter Berns is also excellent on this subject.

Image by rrodrickbeiler and licensed via Adobe Stock.