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The mode of
appointment of the Chief Magistrate of the United States is almost the only part
of the system . . . which has escaped without severe censure. . . . I venture
somewhat further, and hesitate not to affirm that if the manner of it be not
perfect, it is at least excellent.
--Alexander
Hamilton1
The United States
is quickly approaching its first presidential election since the eventful
election of 2000. The story of that election is still fresh in our memory.
George W. Bush won the presidency, but only after weeks of controversy in
Florida. His win made him the first President in more than 100 years to
attain the White House despite a popular vote loss,2 and
it led to renewed calls for abolition of America's unique presidential
election system, colloquially referred to as the Electoral College.3
Some academics
have criticized the Electoral College for years. It has been called an
"anachronism" that "thwarts" democratic principles,4
"constitutional stupidity,"5or
even a "dangerous game" with "many built-in pitfalls"
that are "bound to destroy us."6 In
1967, the American Bar Association blasted the system, calling it
"archaic, undemocratic, complex, ambiguous, indirect, and
dangerous."7
The negative
views of today's academics are starkly at odds with the universal admiration
for the system at the time it was created. Alexander Hamilton, for instance,
publicly deemed the Electoral College "excellent.8
Other delegates at the Constitutional Convention agreed with him: They viewed
the Electoral College as one of the new Constitution's great achievements.
Today's unenthusiastic views would almost certainly surprise these early
patriots.
The Constitution's Election Process
Modern-day American presidential elections are governed by the
12th Amendment to the U.S. Constitution,9
which was adopted and ratified by the states in 1804. The 12th Amendment
modified the Constitution's original Article II election procedure to provide
for the current system of one-ticket voting for the President and Vice
President.10
It is perhaps easiest to think of the current election procedure
in two phases: first, the Electoral College vote, and second, the contingent
election procedure, which is used only if no candidate wins a majority of
electoral votes.
The Electoral College Vote. The Constitution provides for a presidential election among the
states, rather than among individuals. In this election, each state is
granted a certain number of representatives, called electors, to cast votes
on its behalf.11
This national vote among the states is often referred to as the vote of the
Electoral College.
States are allocated one elector for each of their
representatives in Congress.12
Each state therefore automatically receives a minimum of three votes, as it
is entitled to at least two Senators and one Congressman, regardless of
population.13
Adoption of the 23rd Amendment in 1961 provided the District of Columbia with
at least three electoral votes, as if it were a state.14
There are currently 538 total electors. Following the 2000 census, California
has the most electors (55), while seven states plus the District of Columbia
have the minimum number of electors (3).15
State legislatures decide how to appoint electors for this
national election,16 and
it is generally agreed that the legislatures may appoint electors in any
manner that they choose.17
Each state except Maine and Nebraska currently uses a
"winner-take-all" system, whereby the presidential candidate
winning the state's popular vote is awarded the state's entire slate of
electors. Maine and Nebraska each give two electoral votes to the winner of
the state's popular vote and select the remaining electors by congressional
district.18
The Electoral Count Act of 1887,19 as
updated through the years, currently provides an election timeline: Election
Day is the Tuesday following the first Monday in November in any given
presidential election year.20
Each state certifies a slate of electors based upon the outcome of its
popular vote. These electors assemble in their state on the first Monday
after the second Wednesday in December.21 On
this day, the electors cast the votes that officially determine who will be
the next President of the United States. Congress meets in joint session to
count these votes on the following January 6.22
To be elected President, a candidate needs a majority of these
states' electoral votes, which are cast in December. He does not need a
majority of the direct popular vote cast on Election Day.23 At
this time, 270 votes constitute a majority of the Electoral College and will
win the presidency for a candidate.24
The Contingent Election. If no
candidate wins a majority of the Electoral College vote, the Constitution
provides a backup method for presidential selection. This procedure is often
referred to as the Constitution's contingent election procedure. In this
secondary election, the House selects a President and the Senate selects a
Vice President.25
In the House vote for President, each state delegation is
granted one vote.26 If
a state's delegation is evenly divided, that state cannot vote until and
unless the tie is broken. A President is elected when one candidate wins a
majority of the votes of state delegations (currently 26). State delegations
may vote for any one of the top three presidential candidates in the
electoral vote, and re-votes are taken until a majority is achieved. A
similar procedure is employed for election of the Vice President, except that
each Senator is granted one vote and only the top two vice presidential
candidates from the electoral vote are candidates in the Senate vote.
The Founders spent months of extensive deliberation on the topic
of presidential election: They deemed it one of the most difficult issues
facing the Convention. When the Electoral College proposal was completed,
they viewed it as a unique and commendable solution that would satisfy the
many--apparently contradictory--goals of the new republic.
Origins of the Electoral College
Contrary to modern perceptions, the founding generation did not
intend to create a direct democracy. To the contrary, the Founders
deliberately created a republic--or, arguably, a republican democracy--that
would incorporate a spirit of compromise and deliberation into
decision-making. Such a form of government, the Founders believed, would
allow them to achieve two potentially conflicting objectives: avoiding the
"tyranny of the majority" inherent in pure democratic systems, while
allowing the "sense of the people" to be reflected in the new
American government.27
Moreover, a republican government, organized on federalist principles, would
allow the delegates to achieve the most difficult of their tasks: enabling
large and small sovereign states to live peacefully alongside each other.
The authors of the Constitution had studied the history of many
failed democratic systems, and they strove to create a different form of
government. Indeed, James Madison, delegate from Virginia, argued that
unfettered majorities such as those found in pure democracies tend toward
tyranny.Madison stated it this way:
[In a pure democracy], [a]
common passion or interest will, in almost every case, be felt by a majority
of the whole; a communication and concert results from the form of government
itself; and there is nothing to check the inducements to sacrifice the weaker
party or an obnoxious individual. Hence it is that such democracies have ever
been spectacles of turbulence and contention; have ever been found
incompatible with personal security or the rights of property; and have in
general been as short in their lives as they have been violent in their
deaths.28
Alexander Hamilton agreed that "[t]he ancient democracies,
in which the people themselves deliberated, never possessed one feature of
good government. Their very character was tyranny; their figure,
deformity."29
Other early Americans concurred. John Adams, who signed the Declaration of
Independence and later became President, declared, "[D]emocracy never
lasts long. It soon wastes, exhausts, and murders itself. There never was a
democracy yet that did not commit suicide."30
Another signatory to the Declaration of Independence, Benjamin Rush, stated,
"A simple democracy . . . is one of the greatest of evils."31
Despite these strong statements against democracy, the Founders
were also strong advocates for self-government, and they often spoke of the
need to allow the will of the people to operate in the new government that
they were crafting. "Notwithstanding the oppressions & injustice
experienced among us from democracy," Virginia delegate George Mason
declared, "the genius of the people must be consulted."32
James Madison agreed, speaking of the "honorable determination which
animates every votary of freedom to rest all our political experiments on the
capacity of mankind for self-government."33
The delegates, then, faced a dilemma. Their fierce opposition to
simple democracy ran headlong into their determination to allow the people to
govern themselves--and they knew that voters in small states would need to be
free to govern themselves, just as would citizens in large states. The
Founders reconciled these seemingly conflicting needs by creating a
republican government, organized on federalist principles, in which
minorities would be given many opportunities to make themselves heard.
The Electoral College was considered to fit perfectly within
this republican, federalist government that had been created. The system
would allow majorities to rule, but only while they were reasonable,
broad-based, and not tyrannical. The election process was seen as a clever
solution to the seemingly unsolvable problem facing the Convention--finding a
fair method of selecting the Executive for a nation composed of both large
and small states that have ceded some, but not all, of their sovereignty to a
central government. "`[T]he genius of the present [Electoral College]
system,'" a 1970 Senate report concluded, "`is the genius of a
popular democracy organized on the federal principle.'"34
An 18th Century Solution in
21st Century America
Much has changed since 1787. The Founders could not have
foreseen the rapid technological advancements, massive federal bureaucracy,
and increasingly populist attitudes that characterize American life today.
Could it be that the Electoral College, although once an ingenious solution
to many 18th century problems, has today become merely an anachronism--and a
potentially dangerous one at that?
The Electoral College undoubtedly operates in a different
society from the one that existed in 1787. Yet the Electoral College has shown
an amazing ability to adapt to modern-day America. It may sometimes operate
differently than expected, but it still serves the political goals it was
intended to serve. In truth, its operation in modern times may be even more
valuable.
The Benefits of Federalism. Critics of the Electoral College allege that the country's
presidential election process does more to trample the rights of individuals
than to protect federalism. In this context, they often cite the
"winner-take-all" method employed by most states, claiming that it
causes the votes of some individuals to be "wasted."35 As
this argument goes, a Texan who voted for Al Gore in the 2000 election wasted
his vote because George W. Bush was awarded the state's entire slate of
electors under the winner-take-all method. Gore did not win so much as one
electoral vote from Texas, despite winning nearly 2.5 million of that state's
popular votes during the election. 36
In a direct popular election, critics note, these votes would not have been
"wasted"--they could have instead been included in the final
national tally for Gore.
Such arguments, however, are a bit disingenuous. These votes
were not wasted. They were simply cast on the losing side of a popular vote
within the state. If the 2000 election had been conducted based on nationwide
popular vote totals only, would people claim that any vote for George W. Bush
was "wasted" because Al Gore won the popular vote? Of course not.
The votes for Bush were cast in an effort to win. In the event of a loss,
they would simply have been votes for the losing candidate--just as in any
other election (such as an election for Governor or Senator).
The primary effect of America's federalist presidential election
process is to protect the freedom of individuals--particularly those in small
states and sparsely populated areas. Perhaps the best method of demonstrating
the benefits of federalism is to expose the evils suffered without it.
As the system stands today, presidential candidates have no
incentive to poll large margins in any one state. Winning 50.1 percent of the
votes in a state is as effective as winning 100 percent of the votes.
Presidential candidates therefore tour the nation, campaigning in all states
and seeking to build a national coalition that will enable them to win a
majority of states' electoral votes.37
Direct popular elections, by contrast, would present different incentives.
Suddenly, winning 100 percent of the votes is better than winning 50.1
percent of the votes. In fact, it may be easier to rack up votes in a
friendly state than to gain 50.1 percent of votes in each of two states of
similar size, although the payoff would be essentially the same.
The result? Democrats would almost certainly spend most of their
time in the large population centers in California and New York. Republicans
would campaign in the South and Midwest. Large cities would be focused on
almost exclusively as the candidates seek to turn out as many votes as
possible in "their" region of the country. Small states, rural
areas, and sparsely populated regions would find themselves with little to no
voice in presidential selection. In this scenario, a handful of states (or
heavily populated cities) win, while the remaining states and less-populated
areas suffer significantly.38
Many critics dispute this description of the two types of
elections. They contend that the current system does not encourage
presidential candidates to tour the nation, but instead encourages a focus on
mid-sized "swing" states. "Safe" states and small states,
they allege, do not receive nearly as much attention on this national tour.
There is an element of truth in this observation. Yet to the
degree that safe states do not receive a proportionate amount of attention
during campaigns, the logical conclusion is that those states, by and large,
must already feel that one of the two presidential candidates represents
their interests fairly well. When a candidate ceases to adequately understand
and represent one of "his" state's interests, the discontent in
that state is usually expressed pretty quickly.
Consider the situation in West Virginia in recent decades.
Democrats considered West Virginia a safe state for years; thus, the state
probably saw less post-nomination campaign activity from 1960-2000 than it
might have otherwise. However, in 2000, the Bush campaign recognized an
opportunity to gain a foothold in the state due to concern about the impact
of Gore's environmental policies on the coal-mining industry and his support
for gun control.39
Bush took advantage of this discontent, and he spent more than $2 million
communicating his message to West Virginia's voters.40
When election results were tallied, Bush became the first Republican since
1928 to win an open race for the presidency in West Virginia.41 In
2004, West Virginia is no longer considered a safe state for Democrats.
A second argument made by critics is similarly flawed. Although
the winner-take-all system causes large states (especially large swing
states) to elicit more attention than small states, these critics erroneously
compare the amount of campaigning in small versus large states under the
current system. They should instead compare the treatment of small states
under the current system against the treatment they would receive under a new
one. Today, small states undoubtedly receive less attention than large states
(unless, of course, the large state is considered a safe state). However, a
direct vote system would magnify, not improve, this problem because it would
encourage a focus on highly populated areas. Small states would likely never
receive as much attention as their larger neighbors. The goal is not to
eliminate this disparity, but to minimize its severity. Under the Electoral College
system, the states are as evenly represented as possible, given that they are
not all the same size.
One interesting twist to the arguments raised by Electoral
College critics focuses on the reality that even if small states benefit from
the Electoral College, they do so at the expense of the individuals who
reside in small states. This complaint can be confusing because it sounds
like the opposite of another complaint--that the two vote add-on for small
states (giving all a "guaranteed minimum" of three electoral votes)
creates a bias in their favor. The two extra electoral votes given to all
states, regardless of population, do create an advantage for those states. As
a statistical matter, however, the advantage plays in favor of the state as a
whole, rather than the individual voter. By contrast, the mathematical
advantage granted by the winner-take-all system plays in favor of individual
voters in the larger states. These voters have a statistically higher
probability of materially affecting the outcome of the election.42
As a purely statistical matter, perhaps this assessment is
accurate. However, the odds of any one voter providing the "tipping
point" in an election are still exceedingly small. Further, any
individual disadvantage for those who reside in small states is outweighed by
the larger advantage given to the state as a whole.
In sum, the nation conducts democratic, popular elections--but
they are conducted at the state level, rather than the national level.
Professor Charles R. Kesler of Claremont McKenna College explains: "In
truth, the issue is democracy with federalism (the Electoral College) versus
democracy without federalism (a national popular vote). Either is democratic.
Only the Electoral College preserves federalism, moderates ideological
differences, and promotes national consensus in our choice of a chief
executive."43
Moderation and Compromise .
Presidential candidates must build a national base among the states before
they can be elected. They cannot target any one interest group or regional
minority. Instead, they must achieve a consensus among enough groups, spread
out over many states, to create a broad-based following among the voters. Any
other course of action will prevent a candidate from gaining the strong base
needed to win the election. The necessity of building such a national base
has led to moderation and a strong two-party system in American politics.
Some see this trend toward moderation and a two-party system as
a liability. They argue that certain points of view on the far left or far
right do not have representation. Some voters do identify with a third party
more than they identify with one of the two major parties. Democratic
theories try to satisfy the choices of all voters, but not to the point of
destabilizing democratic majorities and democratic government itself. A
system that favors a stable two-party system, but allows minority parties to
vie for control, has a definite benefit over a system that favors many
minority parties: Hand in hand with the Electoral College, it tends to
prevent the rise to power of extremist groups and radical minorities. Instead,
American public policy tends to remain in the middle--not too far left, not
too far right.
Some proponents of a direct election system dispute this
analysis. Removing the Electoral College, they argue, would not undermine the
two-party system.44
However, these proponents make the mistake of assuming that they can change
one factor while leaving all other dynamics unchanged.45
Predictions of what would happen in a direct election system should assume
that it is at least possible that changing the election procedure will cause
more than one aspect of the political process to change. Indeed, one has only
to look to history or comparative governments to see how easily such a system
could disintegrate into multi-candidate races, which would, in turn, devolve
into a system of regular runoffs or fractious coalition governments.
Consider the election of 1992. One of the primary factors that
prevented some people from voting for Perot was that they felt their vote
would be "wasted." A vote for Ross Perot is a vote for Bill
Clinton, voters were told. Now imagine the 1992 election without an Electoral
College. Suddenly, the incentives change. Clinton no longer has to be beaten;
he just needs to be held under some pre-determined percentage (40% in most
proposals for change). To get in the runoff, Perot voters do not need to win;
they simply need to overtake George H.W. Bush. A vote for Perot is no longer
wasted. The Reform Party has a specific, achievable goal with which to
motivate its supporters.
In the actual 1992 election--even with all the disincentives
inherent in the Electoral College system--Perot received 18.9 percent of the
popular vote. Bush received 37.4 percent of the vote, and Clinton received
43.0 percent. Had this election been a direct popular election, it would have
been only three percent away from triggering a runoff. With such incentives,
would not Perot supporters have had a much easier time getting voters to
switch their candidate? Once one runoff has been triggered, why would
multiple third parties not jump into the race in future elections?
As such a situation became the norm, more and more candidates
would be motivated to enter presidential contests. Support from a smaller and
smaller percentage of the population would be needed to qualify for the
runoff. Over time, candidates would become more and more extreme and
uncompromising. Professor Judith Best explains this dynamic:
[T]he splintering of the vote
works against the moderate candidates and works to the advantage of the
immoderate, extreme candidates. It does this because the middle is where the
inclusive coalitions can be built. By undermining coalition building prior to
the general election, a runoff fragments the middle, not the extremes; the
extremes are rarely fragmented--fanatics have solidarity.46
Direct popular election proponents sound plausible when they
argue for election of the President by a "majority" of the people.
In reality, however, a President elected by the majority of citizens will
rarely be achievable. A majority, after all, will never agree on an ideal
candidate. Given an open choice, individuals would fracture their votes
across many candidates. Runoffs would proliferate, and Presidents would
essentially be elected by the initial 20 or 25 percent of voters who got them
into the runoff. Presidents would always know that at least 75 to 80 percent
of the people originally voted for someone else.
Given the general inability to obtain majority consensus, the
Electoral College provides the country with the next best alternative.
Electing Presidents by states' votes, rather than individuals' votes, creates
a method of electing a President who is a good compromise candidate for the
majority of Americans.47 The
Electoral College requires moderation, compromise, and coalition building
from any candidate before he can be successful. Direct elections and a system
of runoffs discourage such behavior.
Stability and Certainty in Elections. Historically, most elections have not been close in the
Electoral College, even when the popular vote is close. The Electoral College
system, when combined with the winner-take-all rule, tends to magnify the
margin of victory, giving the victor a certain and demonstrable election
outcome.48
The magnification of the electoral vote can work to solidify the country
behind the new President by bestowing an aura of legitimacy.
The election of 1960 was one such close election. John Kennedy
won only 49.7 percent of the popular vote, compared to Nixon's 49.5 percent.
However, Kennedy won 56.4 percent of the electoral vote, compared to Nixon's
40.8 percent. Eight years later, this magnification effect worked in favor of
Nixon. Although he won the popular vote by less than one percent, he won 55.9
percent of the electoral vote to Hubert Humphrey's 35.5 percent. This
magnification effect increases dramatically as popular vote totals spread
apart. For instance, in 1952, the winning candidate won 55.1 percent of the
popular vote, but a much larger 83.2 percent of the Electoral College vote.
In 1956, the difference was 57.4 percent (popular vote) to 86.1 percent
(electoral vote). In 1964, it was 61.1 percent (popular vote) to 90.3 percent
(electoral vote).
Presidential elections since 1804 have generally seen wide
margins of victory in the Electoral College. These margins have gotten wider,
on average, through the years as the winner-take-all rule has been adopted by
more states and the two-party system has solidified. Since 1804, only two
elections--those in 1876 and 2000--were won by fewer than 20 electoral votes.
Six elections were won by fewer than 50 electoral votes: Four of these were
held in the 1800s. Of the 26 elections held between 1900 and 2000, 17
Presidents have been elected after winning the electoral vote by a margin of
200 votes or more.
These consistently wide margins of victory in the Electoral
College have come about despite the fact that the margin between the top two
candidates in the popular vote was less than 10 percent in 14 of the 26
elections held since 1900. This margin exceeded 20 percent only five times
since 1900.
A direct popular election, by contrast, would not grant
certainty nearly as often. Close popular votes, such as those discussed
above, could easily result in demands for recounts on a national scale.
America rarely has close electoral votes. It does, however, have close
popular votes fairly consistently. Do Americans really want a presidential
election system that could result in hotly contested recounts nearly every
election?
The Electoral College provides yet another benefit: It reduces
the incidence of fraud and error. Obviously, no system can completely
eliminate the element of human error. Neither can any system eradicate the
tendency of some dishonest individuals to cheat. An election system can,
however, minimize the extent to which these factors affect elections.49 The
Electoral College defends against fraudulent behavior and human error in two
ways: First, the system makes it difficult to predict where stolen votes will
make a difference. Second, to the degree that fraud and errors do occur, the
Electoral College makes it possible to isolate the problem to one state or a
handful of states. The country is given a clear set of problems to resolve
one way or another before moving on to a definitive election outcome--much as
it knew in 2000 that the election would be certain once Florida's disputes
were resolved.50
Today, both the electoral and the popular votes must be
extremely close before voting disputes and recounts are threatened. By
contrast, a direct popular election would require only a close popular vote
before these scenarios became possible. National recounts and legal
challenges would be a constant possibility, particularly because of the
increasing likelihood of multiple candidacies, lower individual vote totals,
and smaller margins among candidates. Moreover, a direct popular vote system
would increase, rather than decrease, the incentive for fraud. Any stolen
vote would have at least some effect, regardless of its location. Party
officials and supporters in states in which that party clearly dominates have
the greatest ability to rig election rules and get away with cheating on
behalf of their party's candidate. Under the Electoral College system,
however, they have the least incentive or need to cheat for their presidential
candidate. Using a direct election system, dishonest officials in one-party
states have both the ability and incentive to cheat, creating potential
resentment, suspicion, and hatred from other states and from the citizens of
their own state. The Electoral College minimizes the impact of fraud,
isolating it to the one or two states where the vote was close, disputed, and
relevant to the Electoral College balance.
Addressing Alternative Proposals
Direct popular election is not the only alternative to the Electoral
College that has been proposed. Two other proposals are also worthy of
discussion: (1) The "District Plan" would award electoral votes by
congressional district, rather than by state; and (2) The "Proportional
Plan" would divide states' electoral votes proportionally, according to
the popular vote outcome within the state. Individual legislatures are free
to adopt most such plans now. It is telling that so few have done so.
District Plan. The District
Plan would award electoral votes based upon congressional district. The
candidate with the most votes in any congressional district would win that
district's one electoral vote. The two Senate "add-on" votes in
each state would then be treated as "at-large" votes and awarded to
the state's popular vote winner. Maine and Nebraska already operate under
this system. The proposal would require other states to join them. Neither
Maine nor Nebraska has divided its electoral votes since their systems were
first implemented, but with close presidential elections the odds increase
that one or both states will do so. 51
Proponents of the District Plan argue that the system preserves
the small-state advantage, while allowing diversity within the states to be
reflected in the national election totals.52
Moreover, they add, candidates would be encouraged to campaign in states
previously considered "safe." Greater voter participation would
result, they argue, because every voter would feel that his vote counts.
Other Electoral College critics dismiss the District Plan, arguing that the
plan fails to address the "problem" of a popular vote winner failing
to win the presidency.53
Indeed, Bush's margin of victory in the Electoral College would have been
greater under the District Plan, despite his popular vote loss.54
The District Plan retains some of the advantages of the current
Electoral College arrangement. America's presidential election system should
encourage national coalition building, and campaigning by districts would
certainly work toward this goal.55
However, many of the other benefits envisioned by District Plan proponents
are unlikely to come to pass. Greater voter participation is improbable,
particularly in lopsided or "safe" congressional districts--and
most congressional districts are safe. This so-called reform may actually
have the opposite effect from what was intended in states that are close
overall but have congressional districts that are not. Even worse, the
primary incentive created by the District Plan is an increased motivation for
gerrymandering. State boundaries have one significant advantage over
congressional district boundaries: They are reasonably permanent and cannot
be changed by an incumbent class of officials.56
Another problem created by the District Plan is that it diverts
attention from statewide and national issues. It discourages candidates from
addressing issues that appeal to the state as a whole and might encourage
candidates to visit district rich, high-population centers to the exclusion
of rural districts. Moreover, if a state votes in pieces, consequential
issues would fall out of the larger debate in favor of local grievances.
Focusing on a few swing districts would repeat on a fragmented scale the
"swing state problem." Candidates might visit only a few close
districts and ignore areas considered safe.
Despite these arguments against the District Plan, the current
system allows a state to switch to the District Plan if it decides that doing
so would be beneficial within its borders--and it may do so without the
necessity of passing a constitutional amendment. Moreover, the state can
switch back to a winner-take-all system if implementing the District Plan
causes more problems than it solved (as it is likely to do). Constitutional
amendments are not completed--or undone--nearly as easily.
Proportional Plan. Under the
Proportional Plan, the Electoral College would be retained, but the electoral
votes in each state would be allocated based upon the percentage of the
popular vote won. Some versions of this plan call for whole electoral votes
to be divided in the interest of accuracy.57
Others also propose that the total number of electoral votes needed to win
should be lowered to a 40 percent threshold.58
Proponents argue that the plan would preserve the states'
Electoral College strength, but that the results would be closer to the
national popular vote outcome.59
They further argue that the voices of minority voting groups would be
reflected in the final election tally because even ballots cast for
third-party candidates could be reflected in the national results. Presidents
could be elected without winning the popular vote, but such an outcome would
be less likely than under the current system. Other Electoral College
opponents deem even the small remaining possibility of a "popular vote
loser" President to be unacceptable.60
The Proportional Plan is yet another option that sounds good on
the surface, but that creates problems in practice. First, constant fighting
would erupt over election tallies. After all, a swing of one-tenth of a
percent in one or several states could change the outcome of the election.
Potentially, at least one electoral vote in each of the 50 states would be
open to dispute every presidential election year.61
Worse, because this type of election is so similar to a direct popular
election system, it contains many of the same downfalls: multiple
candidacies, close elections, runoffs, greater potential for fraud, and
greater incentives for extremist candidates to join the fray. Definitive
election outcomes are discouraged. Close vote totals and challenges to
election outcomes would become the norm.
Colorado, however, is currently considering adoption of this
plan. A Colorado citizens' organization--financed by a group from San
Francisco and funded by a Brazilian millionaire who resides part-time in
California62--recently
collected enough signatures to place a referendum on its November 2004
ballot.If passed, this referendum would supposedly replace Colorado's
winner-take-all system of casting electoral votes with a system of
proportional allocation, making Colorado the only state to enact such a
method in presidential elections.63
The referendum, however, has a glaring flaw. It purports to let
Colorado voters decide the method of allocating the state's electoral votes,
despite the fact that the Constitution gives this power to state
legislatures, not state citizens.64 For
constitutional purposes, the difference is very real. If the referendum
passes, the most likely result is a series of court challenges in Colorado.
Proponents of the referendum argue that state statutory and constitutional
provisions make the people equivalent to the legislature when they act
through referendum or initiative. Therefore, they conclude, passage of a
referendum or other citizen initiative is a perfectly legal and valid manner
of changing electoral vote allocations in the state.
These proponents, however, have forgotten the Supremacy Clause
of the U. S. Constitution: State laws and constitutions may not trump the
U.S. Constitution. The U.S. Constitution is the supreme law of the land and
preempts all other laws. That same Constitution explicitly designates each state's
legislature as the entity with authority to decide the manner of appointing
electors. States (whether by referenda or other means) may certainly delegate
legislative power to citizens for state purposes, but they may not delegate
the state legislature's constitutionally mandated duties in the national
presidential election process.
This principle has been upheld by the Supreme Court in venerable
old cases and some very recent decisions after the last presidential
election. Speaking about an Ohio plan that would allow the people to act in
place of the legislature for certain purposes related to ratifying
constitutional amendments, the Court observed in 1920 that the Founders wrote
the constitutional language based upon their wish to "secur[e] deliberation
and consideration before any change [to the Constitution] can be
proposed."65 In
short, the Court held, when the Constitution says "the
Legislature," it means "the Legislature." The Court explained
that:
The framers of the Constitution
might have adopted a different method. Ratification might have been left to a
vote of the people, or to some authority of government other than that
selected. The language of the article is plain, and admits of no doubt in its
interpretation. It is not the function of courts or legislative bodies,
national or state, to alter the method which the Constitution has fixed.66
In even simpler terms, however, the Court also pointed out what
almost any middle-school child should know: A Legislature is a representative
body, not the people themselves.
What did the framers of the
Constitution mean in requiring [action] by `Legislatures'? That was not a
term of uncertain meaning when incorporated into the Constitution. What it
meant when adopted it still means for the purpose of interpretation. A
Legislature was then the representative body which made the laws of the
people.67
This principle applies to the constitutional process for
electing a President, just as it applies to the constitutional amendment
process.68
State legislatures certainly may choose a proportional method of
electoral vote allocation if they deem such a method to be in the best
interest of their state. However, if one state acting on its own
(particularly a small state) were to enact a proportional method of
allocating electoral votes, the primary effect of its action would be to
significantly dilute its voting strength as compared to the other states
because no presidential candidate will spend much time in a state in which he
is likely to influence only one swing electoral vote. No wonder so few states
have enacted anything like this before. State legislatures will better serve
their citizens if they leave the winner-take-all system in place.
Conclusion
America's election systems have operated smoothly for more than
200 years because the Electoral College accomplishes its intended purposes.
America's presidential election process preserves federalism, prevents chaos,
grants definitive electoral outcomes, and prevents tyrannical or unreasonable
rule. The Founding Fathers created a stable, well-planned and carefully
designed system--and it works. Past elections, even the elections of
Presidents who lost the popular vote, are testaments to the ingenuity of the
Founding Fathers. In each case, the victor was able to succeed only because
his opponent did not build the national coalition that is required by the
Electoral College. In each case, smaller states were protected from their
larger neighbors. In each case, the presidential election system functioned
effectively to give the country a President with broad-based support.
Alexander Hamilton was right when he described the Electoral
College in The Federalist No. 68. Perhaps the Electoral College is
imperfect--but a perfect solution is doubtless unachievable. Nevertheless,
the presidential election process devised by the Framers is certainly
excellent.
Tara Ross is a lawyer in Texas and the author of Enlightened Democracy: The Case for the Electoral College (World
Ahead Publishing, November 2004).
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