THE ELECTORAL COLLEGE IS UNCONSTITUTIONAL

Voting is among the most powerful tools an American citizen possesses because it reaches government power at its source. An individual cannot command the military, appoint judges, sign legislation, or personally remove an officeholder. The ballot is the citizen’s means of deciding who receives those powers. The Supreme Court has called voting a “fundamental political right” because it is “preservative of all rights.” A presidential system that can count the people’s votes, identify the candidate preferred by more citizens, and place someone else in office puts an eighteenth-century mechanism in direct tension with the constitutional importance later attached to the franchise. (Constitution.gov)

The Electoral College entered the Constitution in 1787 under circumstances that later constitutional development transformed. Slavery was legal. Women possessed no nationwide voting right, and states could restrict the franchise by race, property, taxation, and sex. State legislatures selected senators. The delegates worked within the Enlightenment, drawing heavily from Locke and Montesquieu as they shaped ideas about consent and republican government into institutions. The Declaration had already supplied the principle in 1776: government derives its “just powers from the consent of the governed.” (National Archives)

The Convention still accepted a political order in which millions of governed people supplied no political consent through the ballot. Its debates also exposed distrust toward citizens who could vote. Roger Sherman argued that the people should have as little immediate involvement in government as practicable. Elbridge Gerry warned of an “excess of democracy.” George Mason later argued that the country’s size left ordinary voters without enough knowledge of national candidates, comparing popular presidential selection to asking a blind person to judge colors. In 1787, political information crossed the country through print, letters, riders, and ships. (National Park Service)

The proposed electors supplied a filter. Hamilton later described them as people with the “information and discernment requisite to so complicated an investigation.” They were expected to evaluate presidential qualifications, exercise judgment, and protect the selection process from intrigue. Their role rested partly on the belief that a smaller body could make a better-informed final decision than the general electorate under the conditions then prevailing. (Founders Online)

Madison’s Convention notes expose a deeper problem. On July 19, 1787, he said that “The people at large” were “the fittest in itself” to choose the executive. He then identified a serious obstacle. Suffrage was broader in the North, while enslaved people in the South could not vote. Direct popular election therefore denied Southern states presidential strength based on their enslaved populations. Madison recorded the solution plainly: “The substitution of electors obviated this difficulty.” (Founders Online)

That solution converted disenfranchised human beings into presidential power. Electoral votes were tied to congressional representation, and House representation incorporated the Three-Fifths Clause. Enslaved people received no presidential vote while increasing the electoral strength of the states that enslaved them. The mechanism accommodated a political order built around exclusion instead of requiring presidential power to arise equally from the governed. (National Park Service)

The Constitution later dismantled those circumstances. The Thirteenth Amendment abolished slavery in 1865. In 1868, the Fourteenth established national citizenship and equal protection while reshaping representation and voting; 2 years later, the Fifteenth barred racial denial or abridgment of voting rights. Later amendments protected the franchise against sex discrimination and federal poll taxes, then extended age protection to citizens 18 and older. The electorate expanded while political equality gained enforceable constitutional protection. (Constitution.gov)

Another original intermediary disappeared in 1913. State legislatures had selected United States senators because the original Constitution deliberately placed the Senate farther from direct popular control. The Seventeenth Amendment superseded that choice and required senators to be “elected by the people.” Constitutional text therefore provides its own precedent for replacing an original indirect election mechanism as the constitutional order develops. (Constitution.gov)

Presidential electors remain, while the purpose attributed to their independence has largely vanished. Political parties now choose elector slates. Their names may never appear on the ballot. Citizens see presidential candidates and vote for them, while state law converts those ballots into the appointment of a party-selected slate. The electors later cast the constitutional votes for President, and states may bind them to their pledges. The supposedly discerning intermediary has become largely a device for transmitting a decision already made through the popular vote. (National Archives)

The information conditions that once supported filtering have disappeared as well. Presidential candidates now appear directly before a national electorate. Their records, debates, speeches, court proceedings, policies, and conduct can circulate nationwide almost instantly. A mechanism partly justified by the public’s inability to know national candidates remains after that barrier ceased to define presidential politics.

Modern constitutional law moved toward equal political power. Equal Protection doctrine produced the principle of “one person, one vote,” and the Supreme Court treats voting burdens seriously because the franchise is fundamental. Even the Court’s 2020 decision in Chiafalo stated that state power over presidential electors remains subject to other constitutional constraints and specifically identified the Equal Protection Clause as one such limit. The appointment of electors therefore does not sit outside the Constitution’s later guarantees. (Constitution.gov)

Yet the Electoral College still translates presidential votes through geography. Electoral votes combine population-based House seats with 2 Senate-based votes for every state. Most states then award their entire slate to the statewide winner. A narrow victory can capture every elector while millions of opposing ballots produce no electoral representation from that state. The national result can therefore depart from the preference of the greatest number of voters. (National Archives)

It has happened 5 times. Andrew Jackson led the popular vote in 1824 and lost after the contest went to the House. Samuel Tilden led in 1876, Grover Cleveland in 1888, Al Gore in 2000, and Hillary Clinton in 2016. The Constitution permits every ballot to be counted while giving the national popular total no controlling force over who becomes President. If no candidate receives an electoral majority, the Twelfth Amendment sends the decision to the House by state delegation, where every state receives 1 vote regardless of population. (History, Art & Archives)

Congress nearly removed the system in 1969. The House approved direct popular election by 338 to 70 with broad bipartisan support. Senate majorities later voted to end debate on abolition, 54 to 36 and 53 to 34, yet the larger cloture threshold then required stopped the proposal from advancing to the states. The Electoral College survived despite overwhelming House approval and repeated Senate majorities seeking abolition. (History, Art & Archives)

The constitutional case rests on what changed after 1787. The country abolished the human bondage that shaped electoral power, expanded the franchise, made equal protection constitutional law, removed indirect Senate election, and recognized voting as fundamental. The premises surrounding electors also collapsed as national information became immediate and elector independence yielded to party pledges.

Voting is the citizen’s peaceful power over government. It determines who receives authority that the citizen does not personally possess. A constitutional right carrying that importance cannot reach the presidency only to surrender its final force to a mechanism designed under circumstances of exclusion, unequal representation, and distrust of direct public judgment. Americans already cast presidential ballots and live under the power those ballots are supposed to choose. The Electoral College preserves a power to overrule that choice. A government cannot derive its just powers from the consent of the governed while reserving a mechanism that can count that consent and then reject it.