How Much Difference Does the Small State Advantage in the Electoral College Really Make?

EV_map_081104-1400ZOne of the many unusual features of the Electoral College established by Article II, Section 1, of the United States Constitution is the provision that specifies that each state shall have “a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

The one obvious consequence of this provision is to enhance the influence of the smaller states in the selection of the president.   Because of this provision, smaller states are disproportionately represented in the Electoral College.  For example, the 12 smallest states today—Alaska, Delaware, Hawaii, Idaho, Maine, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, Vermont, and Wyoming together account for only 17 (of 435) representatives in the House, or 3.9% of the total.  However, in the Electoral College, thanks to the “Senate bump,” the same states account for 41 electoral votes, or 7.6% of the total of 538.

Would the history of American presidential elections have been different, had this non-democratic element not been added to the Electoral College formula in 1787?  What if Electoral votes were calculated only on the basis of the number of representatives in the House of Representatives?  Have some presidential candidates been elected only because they captured the electoral votes of a disproportionate number of small states?

It turns out that the answer to the last question is yes, although the results of only three of the fifty-six presidential elections have been effected.  Not surprisingly, the three affected elections are also the three closest in American history.

The first was the Hayes-Tilden Election of 1876.  Widespread voter intimidation and corruption in the South made it impossible to determine which of the conflicting returns from South Carolina, Florida, and Louisiana were accurate, and Congress ended up establishing a special Election Commission composed of Senators, Representatives, and Supreme Court justices to sort out the mess.  Apart from the merits of the Commission’s decision, the official count produced the closest finish in history, with Hayes edging Tilden by a single electoral vote, 185-184.  However, Hayes carried 21 states to Tilden’s 17.  Had it not been for the assignment of two additional electoral votes to each state, Tilden would have prevailed, the rulings of the Electoral Commission notwithstanding, 150-143.

The second affected election occurred in 1916 when Democrat Woodrow Wilson ran for reelection against Charles Evans Hughes who stepped down from the Supreme Court to run for president.  In an election in which Wilson’s slogan was the ironic “He kept us out of war,” Wilson edged Hughes by a margin of 23 electoral votes, 277-254.  In sharp contrast to the late twentieth and twenty-first century pattern, the Republican Hughes’ support was concentrated in urban areas in the North and Midwest, while Wilson was strongest in the smaller states of the West and South.  Wilson ended up carrying 30 states to Hughes’ 18, and if the two additional votes were to be subtracted for each state, Hughes would have prevailed 218-217.

The third election was the 2000 presidential election in which George W. Bush defeated Al Gore, albeit not without great controversy, by a margin of 271-266 electoral votes.  (The total electoral vote was 537  because one Gore elector refused to cast his ballot.)  As in 1916, but with the parties switched, Bush carried most of the smaller states while Gore’s support was stronger in the larger, more urban states.  With the two electoral vote bump removed, Gore would have won 225-211.

If we view the “Senate bump” in the Electoral College as undesirable, nothing short of a constitutional amendment can completely remove it.  A dramatic increase in the size of the House of Representatives, which is within the power of Congress, could have almost the same effect, in that the value of the extra two votes would be minimized, if there were, say, 870 members of the House of Representatives rather than 435.  However, a much larger House of Representatives does seem to be an item on anyone’s political agenda.

That the Electoral College with its strange features has survived for more than two centuries (and with no modification since 1804) is more than anything else a tribute to the stability of American politics and the narrowness of the American political spectrum.  Compared to most European countries, the left and the right in American politics are so close together that presidential elections usually have little real effect on the direction of the country.  The Electoral College may produce an occasional unfair result, but so far the consequences of the unfair results have not been significant enough to inspire a large numbers of Americans to demand change in the current system.

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President for a Day

Atchison_David_Rice_-_Plattsburg_MO_3Today marks the 161st anniversary of the one-day Presidency of the United States of David Rice Atchison. Atchison’s story, once well-known, has been reduced to an item of trivia for American history buffs.

By common agreement, the Presidential term of James Knox Polk ended at noon on March 4, 1849. March 4 was a Sunday that year, and the decision was made to delay the inauguration of Zachary Taylor, the hero of the recently concluded Mexican-American War and the newly elected President, until Monday, March 5. Polk completed his final presidential duties on Sunday morning and then departed from Washington that afternoon.

Who then was President between noon on March 4, when Polk departed, and noon of March 5 when Taylor finally took the oath of office?

Under the presidential succession statute in effect in 1849, the President Pro Tempore of the Senate was to assume the office of President of the United States if neither the President nor the Vice-President were able to do so. During the 30th Congress, David Rice Atchison, a senator from Missouri, had been the President Pro Tem of the Senate, and on the morning of March 5, 1849, he was reelected to the same post for the 31st Congress. Legend has it that Atchison spent the day of March 4 in bed, recovering from his participation in several parties held on the evening of March 3.

At the time, no one seemed to have noticed that the office of President had fallen vacant, and there is no contemporary evidence that Atchison himself suggested to anyone that he was the President. However, later in life — Atchison was only 32 on March 4, 1849, and he lived until 1886 — he frequently claimed that he had been President of the United States for one day.

The question of whether or not Atchison had actually been President was raised by a handful of commentators in January 2009, when Chief Justice Roberts botched the oath of office taken by President Obama. Obama retook the oath, correctly, the following day, but if a proper recitation of the oath is a prerequisite to becoming President of the United States, then who was President on January 20, and who was president on January 21? (Since Vice-President Biden had been sworn in at that point he presumably would have been next in line.)

There are, however, a number of problems with the claim that Atchison was President of the United States on March 4, 1849. First of all, he failed to take the oath of office, and the Constitution specifically states that the President must either swear or affirm the prescribed oath.

Even more problematic is the fact that Atchison was technically not the President Pro Tempore of the Senate on March 4, 1849. Under the practices of the day, the office of President Pro Tempore of the Senate was understood to expire when the current Congress recessed for the final time. The first order of business for the new Congress was to elect a new President Pro Tem, although it was not unusual for the Senate to reelect the previous holder of the position.

The Thirtieth Congress recessed on March 3, 1849, so Atchison’s term ended the day before Polk’s presidential term expired at noon. Moreover, his new term as President Pro Tem of the Senate during the 31st Congress did not begin until the morning of March 5. Consequently, if Atchison was eligible to serve as President, it was only during the time between his swearing in on the morning of March 5, and Taylor’s taking the oath of office at noon.

Actually, by this logic, Atchison’s already truncated presidency would have ended with the swearing in of Vice-President Millard Fillmore shortly before noon, and Fillmore’s presidency would have ended a few minutes later when Supreme Court Chief Justice Roger Taney swore in President Taylor. Ironically, Atchison terminated his own presidency (under this theory) when he, as the newly elected President Pro Tem of the Senate, swore in Vice-President Fillmore. (Fillmore, of course, became President “again” in July 1850, when Taylor died in office.)

As it turns out, the Sunday presidential inauguration problem has occurred a number of times in American history. Logically, it should occur once every 28 years or so, since there are seven days to the week and inaugurations occur every four years.

The problem first occurred on March 4, 1821, when James Monroe was President. His inauguration for his second term was delayed for one day, and no one at the time appears to have noted any gap in the presidency. John Gaillard of South Carolina, who served as President Pro Tem continuously from January 25, 1820, to December 2, 1821, never claimed to have been President on March 4, 1821.

The second incident was the one involving Taylor and Atchison. The third came in 1877, following the Hayes-Tilden race, the most contested presidential election in American history. Although the results of the election were not finally determined until Friday, March 2, Hayes, for religious reasons, refused to be sworn in on Sunday, March 4. Several Republicans, including outgoing President Ulysses S. Grant, feared that disgruntled Democrats might attempt to disrupt the inauguration ceremonies, so they encouraged Hayes to take the oath of office as soon as possible. Consequently, Hayes took the oath of office on Saturday, March 3, the day before the end of Grant’s term. He also took the oath a second time (without incident) at a public ceremony on Monday, March 5.

In 1917, Woodrow Wilson delayed his second inauguration until March 5, but as had been the case with Monroe a century earlier, there was no evidence of contemporary claims that the presidency had fallen vacant.

In 1933, the 20th Amendment to the Constitution moved the presidential inauguration date to January 20. The first conflict with the new date came on Sunday, January 20, 1957. President Eisenhower, who had been reelected the previous November, took the oath of office privately on Sunday, and then was publicly inaugurated the following day. Ronald Reagan took the same approach when the date of his second inaugural fell on Sunday, January 20, 1985. Either President Obama or his replacement will have to deal with this issue in three years, as January 20, 2013, will fall on a Sunday.

The logical answer here is that the newly elected President becomes President on the appointed day, whether or not he (or she) has an inaugural ceremony or takes the required oath. The supposed problem of a gap in the presidency in 1849 should remind us that for all of their wisdom, the Founding Fathers did not think of everything, and there are times when the Constitution requires us to use common sense to implement its central provisions.

A picture of the Plattsburg, Missouri tombstone of David Rice Atchison—which proclaims him “President of the United States for One Day”—can be found here.

I am indebted to Sean Samis for calling this anniversary to my attention earlier today.

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Contract Rights Under Assault

Barack_Obama_pledges_help_for_small_businesses_3-16-09In 1789, as the inchoate American government was climbing out of the mountainous debt left over from the Revolutionary War, a thorny political problem emerged.  While most of the chattering class was consumed with the debate over whether the states’ war debt should be federalized, another far more visceral controversy arose.  Because the Continental Congress lacked funds during the war, the Revolution was funded partly by wealthy private citizens who invested in bonds.  As a result of the lack of governmental money, many American soldiers were given worthless IOUs at the end of the war, as states scampered for a way to give the patriots their back pay.  Many of these soldiers panicked, and sold their IOUs to speculators for as little as fifteen cents on the dollar.  The problem was, once the federal government began repaying the debt, the value of the bonds soared.  So who should get the money: the patriots who fought bravely for their country and only sold the IOUs because of fear they would get nothing from their government, or the speculators?

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