What determined how many votes each state would have in Congress?

One 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.”

Índice Show

Constitutional Framing
14th Amendment
Current Practice
For Further Reading

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.

How are Electoral Votes Allocated?

Each of the 50 states receives electoral votes equal to its total congressional (Senators + Representatives) delegation. Since all states have two Senators and a minimum of one congressional district, the fewest number of electoral votes a state can have is three. Although not a state, the District of Columbia (DC) receives 3a electoral votes. Therefore, the total electoral votes is 538, reflecting 100 Senators + 435 Representatives + 3 for DC.

The number of congressional districts in each state is determined by its Census population. The last Census was in 2010, the next will be in 2020. Once each state’s Census population is finalized, a calculation (called The Method of Equal Proportions) generates the new number of districts for each state. Since the number of districts is fixed by law at 435, states essentially gain or lose representation (and electoral votesb) based on population change relative to the total change in population for the countryc.

While the next Census will be based on the population as of April 1, 2020, the numbers will not be official in time to be used for that year’s presidential election. Therefore, any changes to electoral votes will be effective with the 2024 election.

(a) The 23rd Amendment (ratified 1961) granted electoral representation to the District of Columbia. The Amendment specified that DC would receive the same number of electors as if it were a state but no more than the number of electors of the least populous state.

(b) As an aside, since congressional districts are proportional to population but Senate seats are not, the net effect is that states with lower populations are over-represented in the Electoral College while those with the most population are under-represented. So California, despite having the most electoral votes, is actually the most under-represented state in each presidential election.

(c) For purposes of apportionment, the population of each state is considered to be the resident population plus overseas U.S. military and federal civilian employees (and their dependents living with them). The population of DC is not included.

“Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative…”
— U.S. Constitution, Article I, section 2, clause 3

“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

— U.S. Constitution, Amendment XIV, section 2

The Constitution provides for proportional representation in the U.S. House of Representatives and the seats in the House are apportioned based on state population according to the constitutionally mandated Census. Representation based on population in the House was one of the most important components of the Federal Constitutional Convention of 1787.

Origins

The American Revolution was, in part, a contest about the very definition of representation. In England, the House of Commons represented every British subject regardless of whether the subject could actually vote for its membership. In this sense, most people living in areas under British rule—including North America—were only “virtually represented” in Parliament. American colonists, who were used to controlling their local affairs in the directly-elected colonial legislatures, lacked a voice in Parliament and resented the British policies imposed on them. Thus, they rallied behind the now familiar motto: “No taxation without representation!”

After the war, the founders struggled to design a system of government to better represent the inhabitants of the new country than did the British model which once governed them. The Articles of Confederation created the first national congress to represent the interests of the states: each state would appoint between two and seven delegates to the congress, and each state delegation would have one vote.

Constitutional Framing

/tiles/non-collection/i/i_origins_proport_repres_hres_127_14_th_nara.xml 14th Amendment, Center for Legislative Archives, National Archives and Records Administration The 14th Amendment declared that all persons born or naturalized in the U.S. were citizens and that any state that denied or abridged the voting rights of males over the age of 21 would be subject to proportional reductions in its representation in the U.S. House of Representatives. Approved by the 39th Congress (1865–1867) as H.J. Res. 127; ratified by the states on July 9, 1868.

The Constitutional Convention addressed multiple concerns in the process of designing the new Congress. The first was the relationship of the least populous states to the most populous. The battle between big and small states colored most of the Convention and nearly ended hopes of creating a national government. Pennsylvania Delegate Benjamin Franklin summed up the disagreement: “If a proportional representation takes place, the small States contend that their liberties will be in danger. If an equality of votes is to be put in its place, the large States say their money will be in danger. When a broad table is to be made, and the edges of planks do not fit the artist takes a little from both, and makes a good joint.” The “good joint” that emerged from weeks of stalemate was called the “Great Compromise” and created a bicameral legislature with a House, where membership was determined by state population, and a Senate, where each state had two seats regardless of population. The compromise enabled the Convention, teetering on the brink of dissolution, to continue.

The Convention determined that a Census of the population conducted every 10 years would enable the House to adjust the distribution of its Membership on a regular basis. The method, however, proved controversial. Southern delegates argued that their slaves counted in the population, yielding them more Representatives. Northern delegates countered that slaves were property and should not be counted at all. The result was the notorious “Three-Fifths Compromise,” where slaves were counted as three-fifths of a free person. Having originated in tax policy, this rule was defended during the Convention as a necessary compromise given the “peculiar” state of slaves as both property and “moral” individuals subject to criminal law. Virginia’s James Madison wrote in Federalist 54 that the reasoning appeared “to be a little strained in some points” but “fully reconciles me to the scale of representation, which the Convention have established.”

Representation was also linked to taxation. Before federal income taxes or tariffs, the states contributed to the national government with local taxes, often flat poll taxes on each citizen. Since constitutional framers had to provide for the funding of the new government, they debated the proper relationship between representation and taxation. Several delegates argued that geographic size or useable farmland were better measures of state wealth than mere population. Delegates, however, settled on proportional contributions based on population and, by extension, the number of Members in the House of Representatives. Large states, with more human capital, should contribute more revenue to the national government and also have more seats in the legislature as a result. This fulfilled the promise of the American Revolution: taxation with representation.

14th Amendment

The 14th Amendment to the Constitution, ratified after the Civil War, began to remedy the “original sin” of the Constitution, and ordered the Census to fully count every individual regardless of skin color. While it was a step in the right direction, it did little to ease the country’s racial tensions. Moreover, instead of directly providing for the enfranchisement of African Americans, the amendment stipulated that only males over the age of 21 could not be discriminated against when voting unless they had participated in rebellion against the Union or “other crime.” Women were not enfranchised until 1920, when the 19th Amendment stipulated that “the right of citizens of the United States to vote shall not be denied or abridged . . . on account of sex.” In 1971, the 26th Amendment enfranchised those 18 years of age and older. The latter amendments, however, did not alter congressional apportionment.

Current Practice

Congress has capped the number of Representatives at 435 since the Apportionment Act of 1911 except for a temporary increase to 437 during the admission of Hawaii and Alaska as states in 1959. As a result, over the last century, congressional districts have more than tripled in size—from an average of roughly 212,000 inhabitants after the 1910 Census to about 710,000 inhabitants following the 2010 Census. Each state’s congressional delegation changes as a result of population shifts, with states either gaining or losing seats based on population. While the number of House Members for each state is determined according to a statistical formula in federal law, each state is then responsible for designing the shape of its districts so long as it accords with various provisions of the Voting Rights Act of 1965, which seeks to protect racial minorities’ voting and representation rights.

For Further Reading

U.S. Census Bureau. U.S. Department of Commerce. “About Congressional Apportionment.” http://www.census.gov/population/apportionment/about/.

Eagles, Charles W. Democracy Delayed: Congressional Reapportionment and Urban–Rural Conflict in the 1920s. Athens, GA: University of Georgia Press, 2010.

Farrand, Max, ed. The Records of the Federal Convention of 1787. Rev. ed. 4 vols. (New Haven and London: Yale University Press, 1937).

Madison, James, Alexander Hamilton, John Jay. The Federalist Papers. (New York: Penguin Books, 1987).

Reid, John Phillip. The Concept of Representation in the Age of the American Revolution. (Chicago: University of Chicago Press, 1989).

Rossiter, Clinton. 1787: The Grand Convention. (New York: Macmillan, 1966)(.

Tate, Katherine. Black Faces in the Mirror: African Americans and Their Representatives in the U.S. Congress. (Princeton: Princeton University Press, 2003).