Hamilton claims that the process by which the President is elected is one of the least controversial aspects of the proposed Constitution. Of course, this is after the issue was a highly controversial issue at the Constitutional Convention. What Hamilton fails to discuss is that the election of the President by popular vote was a divisive issue, since some delegates were concerned that an ill-informed people would make poor choices, while the position was also painted as something akin to monarchy by others. The model that Hamilton discusses in this Paper,
which has escaped without severe censure, is the result of a compromise. The compromise resulted in the Electoral College, which was tasked with choosing a president. Its members were formed by people elected in each State every four years. It was to be the Electoral College, not the popular vote of the people, that ultimately counted. Each State is allocated a number of Electoral College votes based upon the number of representatives it has in the House and the Senate. This means that large states have more Electoral College votes from the House of Representatives, but all States receive two votes from the Senate, regardless of their population. Today, there are 538 electoral votes, and the first candidate to get 270 votes is considered the new president, even though the formal vote of the Electoral College is then to take place, which formally ratifies the outcome. The votes of the Electoral College are formally counted by the Vice-President in the Senate on January 6 of the year following the presidential election.
After the 2016 election some never-Trumpers pinned their hopes on Faithless Electors – Electors who voted against their party – in order to overturn the result of the election. This movement was called the
Hamilton Electors after this Federalist Paper, and while some electors did change their vote, there was nowhere near the 35 votes needed to award Hillary Clinton the presidency.
Hamilton is at pains to praise this compromise system, but the problems with it became evident with the presidency of Donald Trump. First, the 2016 election demonstrated that the Electoral College system did not necessarily represent the will of the people. Trump lost the popular vote by the largest margin in history for a candidate who nevertheless gained the majority of Electoral College votes to become President. Part of the problem lies in the overrepresentation of States with small populations. Each State must have one House of Representatives vote at least, regardless of population, and two Senatorial votes, since all States are allocated two senators. So, the minimum number of votes is three, regardless of population. Further problems with the system became apparent after the January 6 attempted insurrection in 2021. President Trump and his lawyer, John Eastman attempted to use the weaknesses of the system to merely reject the electoral college votes of Joe Biden, thereby sending the vote back to the House of Reprsentatives, where Trump would have one. This scheme failed because Vice-President Pence refused to do this on the basis that he had no constitutional power to do so. But Trump's attempts to overturn the results of the election were multi-faceted. The exploitation of the Electoral College system also included attempts to certify false slates of electors from crucial States, in an attempt to either overthrow Biden's votes, or to cast doubt upon the outcome of the election. There have been attempts to abolish the Electoral College – for instance the ‘Every Vote Counts Amendment’ of 2005 and the ‘Two-round system’ proposed in 1970 – but so far the system remains.
The following represents Hamilton’s justifications for the system, since he had the task of defending the Constitution against anti-Federalist criticism.
Hamilton argues the advantages of electing a president through a small number of representatives: they would be capable of analysing the qualities of the candidate; they could take time to deliberate; their choice would be governed by reason and would be well-informed. This implicitly suggests the Electoral College (Hamilton doesn’t call it that in this Paper) did not represent a popular vote: electors could, upon careful consideration and deliberation, vote contrary to the will of the people. This is the basis of the term
In fact, one might read Hamilton’s argument in this Paper to mean that there was no intention that a popular vote was meant to represent a direct choice of the people at all; rather, that it was a vote for people they most trusted to make a well-considered choice on their behalf. This is implicit in Hamilton’s argument that the selection of electors would
be much less apt to convulse the community with any extraordinary or violent movements, than the choice of one who was himself to be the final object of the public wishes.
This reading is further supported by Hamilton’s next justification, that foreign influence would be less likely to have effect on a newly conferred Electoral College, to which current members of Congress and others profiting under the government were excluded and whose members would be unknown before the vote, than on established bodies of government. Hamilton assumes that a real decision was to be made by the Electoral College, which needed to maintain its integrity against foreign influence.
Further to this is the assumption that it is possible that no candidate might achieve
a majority of the whole number of votes to become President. In Federalist 66, Hamilton expressed a belief that this circumstance will
frequently occur. The Constitution made the provision that in those circumstances, the House of Representatives would choose the President. Nevertheless, the House of Representatives have only been given this task twice, in 1800 and 1824. (In the case of the Vice-President, this would fall to the Senate). The point is, there was no assumption that the popular vote to elect members for the Electoral college from each State was meant to flow into a forgone decision for president by those voters, according to this paper.
This is again suggested in Hamilton’s belief that the system
will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications (Donald Trump held no public office before becoming president) and that
there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue. Hamilton seems to envisage an ideal republic of steady men who would only elect the best man (for it was only men at the time) for the job, like Plato’s Republic with its philosopher rulers, thereby guarding against the worst excesses of the mob, which some Founding Fathers feared. It follows his belief from earlier in the Paper that these Electors would be well-informed and deliberate in their choice.
That is not how the system works today. The 2016 election was the first time that multiple electors turned against the popular vote and became Faithless Electors, although there have been over 160 instances in the last two hundred years. In 2016 three of these electors were either invalidated or forced to vote in line with their party.
Hamilton ends his Paper by discussing the Vice President, whom he says must not be appointed from the Senate, since that would create the need for a contingent vote, but also because the Vice-President would sometimes need to take over the role of the President. For this reason, the appointment for Vice-President needed to be determined in the same vote as the president. This was altered in 1804 by the 12th Amendment, which directed that the Electoral College had to cast two votes, one for president and one for Vice-President, since it became clear that two candidates could otherwise gain the same number of votes.
28 November 2019
Revised and updated 2 July 2022