One in a series of articles. You can read the whole series here.
Most of the time, the Electoral College system produces a winner who gets the most popular votes and whose legitimacy as the choice of the electorate is relatively clear. But the number of exceptions is not small, and the next one is always potentially around the corner.
As I mentioned at the end of the previous installment, the biggest reason that the Framers of the Constitution invented the Electoral College system is that they hoped, and even assumed, that the United States would be a country that would have politics without political parties.
Contrary to their hopes and expectations, the first two-party system developed during the George Washington administration (and even within the Washington administration). The first post-Washington election in 1796 was a partisan battle between Federalist John Adams (who had been Washington’s loyal vice president) and Anti-Federalist (also known as Democratic Republican) Thomas Jefferson (who had been Washington’s secretary of state).
In 1796, Adams was supported by a majority of the electors and won. But because of the Framers’ plan (which said that whoever got the second-most votes to be president would become vice president), he ended up with his opponent and political enemy Jefferson as his vice president. That hasn’t ever happened again.
The 1800 election was an Adams-Jefferson rematch. By this time the party system had advanced. In fact, hyperpartisanship -- in many ways comparable to or maybe worse than what we have at present -- took over. I mentioned in a previous installment that Pennsylvania Republicans (who control the Legislature and the governor's office at present) were considering earlier this year changing the way the state's electoral votes are awarded in hopes of helping the Republican ticket. Shocking, I know. But in 1800, six of the then-16 states changes the way their electoral votes were awarded, and in every case, the change was intended to advantage the presidential prospects of the Adams or Jefferson ticket (depending on which party controlled which state).
There were still no official nominating processes or tickets, but both parties had tickets and this time electors understood that they were supposed to vote for both members of the party ticket. Since the original Electoral College plan didn’t allow the electors to designate which person they intended to be president and which vice president, the Jeffersonians all wrote down the names of Jefferson and his running mate Aaron Burr of New York. Jefferson should have been clever enough to arrange for one elector to leave Aaron Burr’s name off his ballot. (The Adams electors did, but it didn’t matter.) So, even though none of the electors meant to vote for Burr for president, Jefferson and Burr ended up in an electoral vote tie, which threw the election into the House.
The Framers original plan also required the old, outgoing House to decide the presidential race. This is further evidence that they weren’t thinking the whole mechanism through.
In this case, that meant that the accidental tie between the two members of the Anti-Federalist would be decided by a House in which the Federalists held a majority of the seats. Oy. It took 36 ballots, but the House finally did the right thing and made Jefferson president.
A quick amendment
That disaster led quickly to a constitutional amendment, the 12th, ratified in 1804. This was the last substantial change in the constitutional portion of the Electoral College scheme. But it didn’t go very far to reconcile the system with political reality. The amendment was a mere tweak, which allowed the electors to indicate whom they were supporting for president and whom for veep. In case no one got an electoral vote majority, it reduced the number of top finishers whose names would be forwarded to the House from five to three. And in case no one got a majority of votes for vice president, the top two finishers would be forwarded to the Senate.
(This creates the weird -- to modern eyes -- possibility that you could end up with a president and vice president of different parties, or you could get a vice president who is chosen in the Senate but whose running mate -- the presidential nominee -- is tied up in a deadlock in the House. This mechanism is still in the Constitution and it's not really that far-fetched to think that it could happen. 
In the middle of 1992, independent candidate H. Ross Perot was running high in the polls against Bill Clinton and the first President George Bush. This created the possibility of a three-way split of electoral votes. Some of those screwy possibilities were in the air. Perot could have finished first in the popular and electoral vote but would have had no party members in the House to help him become president. Democrats controlled both houses of Congress. Clinton could have finished third in popular and electoral votes, but if the members of the House chose to support their party’s nominee, he could have become president anyway. And, truly weird, because the 12th amendment provides that only the top two finishers for vice president are forwarded to the Senate for selection, in the Clinton-Gore-finish-third scenario, the Democratically controlled Senate would have had to choose a vice president from between the Republican vice presidential nominee Dan Quayle and Perot’s running mate, Adm. James Stockdale.)
In the end, Perot faded and got no electoral votes. Clinton won a gigantic 370-168 electoral vote majority and became president, despite having won only 43 percent of the popular vote.
The last presidential election that actually was thrown into the House was 1824, a brief period in U.S. political history when no clear two-party system existed. It turned into another illustration of the dangers of the Electoral College system.
War of 1812 hero Andrew Jackson got the most popular and electoral votes but didn’t have a majority, so the top three electoral vote finishers were forwarded to the House.
Speaker of the House Henry Clay of Kentucky finished third in the popular vote but a close fourth in electoral votes. If Clay had finished in the top three in electoral votes, he might have become president (considering that he was speaker of the House and the choice was to be made in the House). Clay ended up supporting the second-place finisher, Secretary of State John Quincy Adams. And, with Clay’s help, Adams was “elected” by the House. Adams then appointed Clay to be his secretary of state (which at that point in history was the launching pad for presidential candidates). Clay and Adams were haunted for the rest of their careers by the suspicion that they had made a “corrupt bargain” to deprive Jackson of the presidency.
Although four men (including JQA) became president without finishing first in the popular vote, Jackson is the only one ever to be deprived of the presidency after finishing first in the electoral vote (although Jackson got his revenge four years later by winning an outright electoral college majority over Adams).
But even Jackson had not won a majority of the popular vote in 1824. Thanks to the Electoral College system, one candidate who won an actual majority of votes cast was still deprived of the presidency. This was 1876, an election that is strangely little-known other than to political history buffs. In my mind, it was the most messed-up presidential election ever, even compared to 1800 and 1824.
This was the end of the post-Civil War Reconstruction era. Union troops still occupied Southern states. Race, the treatment of freed slaves and bitterness over the war were all in play. The Republicans had won four straight presidential elections. In 1876, Republicans nominated Ohio Gov. Rutherford B. Hayes and the Democrats nominated New York Gov. Samuel B. Tilden. Tilden won the national popular vote by a solid 51-49 percent and a margin of three quarters of a million votes, and on Election Day appeared to have a fairly solid electoral vote majority. But the desperate Republicans identified three states that were close enough to contest. And in all three, Republicans controlled the state government and therefore the vote-counting. The Republicans needed to steal all three to generate a one-vote Electoral College majority for Hayes.
Rival reports
This led to all three states sending rival reports to Washington of who had won. Things got so bad that a special 15-member commission of senators, representatives and Supreme Court justices was set up to decide the election. The commission was supposed to be balanced but turned out to have eight Republicans and seven Democrats. All of the key votes ended being decided along strict party lines and Hayes was inaugurated, although for the rest of his life Democrats referred to him as “Rutherfraud” B. Hayes and as “his Fraudulency” instead of “His Excellency.”
What does this have to do with the Electoral College system? Simple. Republicans didn’t have any hope of stealing three-quarters of a million votes to make Hayes the popular-vote winner. But thanks to the Framers’ strange system, they didn’t need to. They just had to flip three very close states which required a much more manageable level of fraud.
Only four presidential elections have been decided in favor of the popular vote loser. But in pretty much every close election, the shift of a few disputed votes in a key state or two would change the electoral vote outcome. George W. Bush defeated John Kerry in 2004 by three million popular votes nationwide, a margin of more than two percentage points. That’s no landslide, but a solid win.
But Bush carried Ohio by just 120,000 votes and Ohio had enough electoral votes to change the outcome. Some people still think Bush stole Ohio by some funny vote-counting. I don’t. My point is that if Kerry had managed to win Ohio, he would have won the election despite losing the popular vote by three million. (And George W. Bush would have become the only man to win the presidency while losing the popular vote and then lose it while winning the popular vote.)
This is all possible because of the Electoral College system. If it is left in place, as it very likely will be, it’s only a matter of time before it happens again.
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