The electoral college system for choosing the President was based upon the protection of slavery and a distrust of democracy. That system has allowed the loser of the popular vote to win the Presidency in five of our 56 Presidential elections. Such a system would be illegal in any state or local election. But it is contained in the Constitution. Can a section of the Constitution itself be unconstitutional? The answer is yes.
We are all aware by now that we do not vote directly for a candidate in a Presidential election. We vote for electors who will (presumably) vote for the candidate who won the popular vote in the state, when the college meets after the election. Under Article II, Sect. 2 of the Constitution (later modified by the Twelfth Amendment), the number of electors is determined by combining the number of members of the House of Representatives in each state and its two Senators.
But the number of representatives was established in the Constitution by adding to the regular population, "three fifths of all other Persons." The "other Persons" of course were the slaves. So the Southern states were able to add to their free population (totaling 1,925,677 in 1790) an additional 654,121 slaves (392,472 of whom were counted under the three/fifths rule). That system entitled those States to obtain fourteen more representatives than they would have obtained if the apportionment of representatives was based only on the free population. In 1793, for example, Southern slave states had 47 of the 105 House members, but they would have had only 33, had seats been assigned based only on free populations.
That discrepancy carried over to the electoral college. Southern states also received extra electoral votes because it had additional members of Congress under the three/fifths system. Indeed, as Garry Wills tells us in his book "Jefferson, the Negro President," Adams would have won the 1800 election over Jefferson but for the three/fifths rule.
Not only was the electoral college system based on slavery, it was also based upon a distrust of democracy. Alexander Hamilton in Federalist No 68, explained that the "immediate election [of the President] should be made by men most capable of analyzing the qualities adapted to the station." We cannot trust the decision to the people themselves. Rather, a "small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations." Hamilton raised the danger of what he called "tumult and disorder." If the people voted directly for President, there is the probability that an election will "convulse the community with . . . extraordinary or violent movements."
It was true that the people vote directly for their governor. But those elections are suspect. "Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union."
We no longer leave our elections to a "small number of persons, selected by their fellow-citizens from the general mass" who "possess the information and discernment requisite to such complicated investigations." We no longer have slavery or the three/fifths rule. So both evil origins of the rule are gone, but we still have the rule. Why?
The reason lies in the evils of our federal system. Under the electoral college structure, smaller states have enormous political leverage. Wyoming has a population of 584,153 and has three electoral votes, which means that each Wyoming elector represents 194,717 voters. California has a population of 38,800,000 and has 55 electoral votes so each elector represents 705,454 voters. So each Presidential vote in Wyoming is worth 3.6 times more than each vote in California.
If this discrepancy occurred within each state -- if the voters in one county had 3.6 times the voting power of voters in another county -- that would violate the equal protection clause, as the Supreme Court announced many times. In one of the earliest cases dealing with this subject, Wesberry v. Sanders, the Supreme Court announced: "We hold that . . . [the Constitutional requirement that] Representatives be chosen 'by the People of the several States' means that as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's." The Court wrote in Bush v. Gore, "Having once granted the right to vote on equal terms, the State may not . . . value one person's vote over that of another." In another case, Board of Estimate of the City of New York v. Morris, the Court wrote: "The equal protection guarantee of 'one person, one vote' extends not only to congressional districting plans, not only to state legislative districting. . . Both state and local elections are subject to the general rule of population equality between electoral districts." So the one-person, one vote rule applies to every election in the United States, except for the vote for President.
What can we do about it? Can a Constitutional provision be unconstitutional? The answer is yes, if a later Constitutional amendment undermines the earlier provision. The Eleventh Amendment prohibits any law suit in federal court against a State. But the Fourteenth Amendment provides that no State "shall deny to any person. . . the equal protection of the laws." Section 5 of the Amendment allowed Congress to pass laws to enforce that provision. In 1964, Congress passed Title VII of the Civil Rights Act. That law prohibited employment discrimination on the basis of race or gender by any employer, including the States, even in the face of the Eleventh Amendment. In Fitzpatrick v. Bitzer, the Supreme Court upheld the law even if it meant that States could be sued in federal court: "the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of § 5 of the Fourteenth Amendment."
If the Fourteenth Amendment overrules some restrictions of the Eleventh Amendment, it can also overrule requirements of the Twelfth Amendment. In 1954, the Supreme Court held in Bolling v. Sharpe, that the federal government is subject to the same equal protection requirements as the state governments, even though the equal protection clause of the Fourteenth Amendment does not mention the federal government. The due process clause of the Fifth Amendment (which does apply to the federal government) contains equal protection guarantees as well, even if they are not specifically mentioned. The Court said in Weinberger v. Wiesenfeld, "This Court's approach to Fifth Amendment equal protection claims [covering the federal government] has ... been precisely the same as to equal protection claims under the Fourteenth Amendment."
The right to vote in a federal election should therefore be protected by the same "one-person, one vote" established in state elections. The 3.6 vote discrepancy in the electoral college should be subject to the same equal protection analysis that the Supreme Court has applied in state and local elections. We must end this historical anomaly. Citizens in the adversely affected states should bring the matter to a federal court.
Leon Friedman is a professor of Constitutional Law at the Maurice A Deane School of Law at Hofstra University.