19. WEIGHING THE ALTERNATIVES:
REFORM OR DEFORM?
Judith Best
Alexander Hamilton began Federalist No. 68 by awarding Electoral College credits to the Framers. He noted, "The mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure or which has received the slightest mark of approbation from its opponents." The modern reader is astonished! Since then, there have been more than seven hundred proposals to change or abolish the Electoral College. In fact, more constitutional amendments have been proposed on this subject than for any other part of the Constitution.
At the time Hamilton was right, because the Electoral College was that rare type of compromise that actually addressed the concerns of all. For those who wanted an independent and energetic executive, it provided a method of selection that left the president independent of any unified and continuously existing body—such as Congress. The College exists for only one day, each set of electors meeting separately in its own state capital. Thus it addressed the concerns of those who feared corrupt bargains between candidates and the selecting body. It also eliminated the need to limit the president to one long term in order to preserve the energy of the office. By requiring electors to cast two votes for president, one for a man not from their own state, it addressed the favorite son problem and gave the College a nominating function as well as a selecting function. By tying the number of electors to a state's congressional representation and by establishing the state unit rule in the House contingency election, it addressed the fears of the small states. Special state electors also answered the objections of Southern states where the right to vote was limited by slavery. And supporters of popular choice, such as James Wilson and James Madison, correctly anticipated that the states would soon use popular
However, the Framers failed to anticipate the emergence of political parties, and the result was that the method had to be changed early in our history, with the Twelfth Amendment, to create separate votes for president and vice president. This meant the College lost its nominating function. And where there is a will, there is a way. The large, populous states and the two major parties had the will to increase their influence and found the way in the unit rule, giving all of a state's electoral votes to the candidate who won a statewide plurality. The electoral system evolved and grew in a symbiotic relationship with the two-party system. The system as we know it fully emerged in the 1830s, by which time all the states except one used the unit rule and the political parties had developed national nominating conventions.
Attacks on the College began early, and Election 2000 has renewed demands to change or abolish it. According to its critics, the defects of the system are as follows: it can produce a runner-up president; it has a bias in favor of a two-party system; faithless electors could subvert an election; the House contingency election is at best awkward, at worst a potential source of corrupt deals or deadlock; and finally, because it is federal, because people cannot combine their votes with those of like-minded partisans across state lines, and because almost all states use the unit rule, it is unfair and undemocratic. A constitutional amendment would be necessary to abolish the Electoral College, and there are four such proposals on the table today: direct election, the national bonus plan, instant runoff balloting, and the automatic plan. In addition, there are two proposals that could be put into effect by state legislatures: the district plan and the proportional plan.
No election system is perfect—nothing made by men ever is. Every election plan has its own costs and benefits. Nonetheless, the Electoral College has borne the test of time. Its defects are few, its virtues many. Through two world wars, a great depression, and even a civil war, it has produced a constitutionally elected and constitutionally recognized president. This is rare stability. It is not perfect, and it may be possible to improve it. However, we must weigh the benefits against the costs of change.
The first step in cost-benefit analysis is to carefully define your goals. A presidential election is not simply a popularity contest or an exercise in self-expression. Selecting a president is not like choosing a king's champion or a prom queen—as if we had only one goal, choosing the strongest or the most beautiful. The goals of the election are many. The immediate purpose of the election is to fill the office—but more, to fill it with a president who can govern a continental, heterogeneous country because he can build a broad, inclusive, cross-national coalition. This requires a political
Reform has an evil twin called Deform. Since the presidency is but one part of a complex and coordinate governing structure, all reformers must test their reforms against the fundamental structures they propose to change. Our Constitution is an organic arrangement of interdependent parts. It is like the solar system where the whole is dependent on each planet being in its place, and if you change a part, you change the whole. The separation of powers and the federal system, the fundamental structural principles of the Constitution, are the center, the sun, around which everything else in the Constitution rotates. The electoral vote system is the paradigm of that solar system because it is both democratic and federal. We do have a popular vote system in the states. The solar system test is the test that all reform plans must pass.
THE DIRECT ELECTION PLAN
The most popular reform plan is direct election;[1] polls indicate that 60 percent of the people support it because they think it is more democratic. Every vote would be cast and counted as if there were one big national ballot box. The plan would establish a direct, nonfederal election, and the candidate who won the most popular votes, aggregated nationally, would be president if he achieved a 40 percent plurality. If no candidate attained the 40 percent plurality there would be a popular vote runoff election between the top two candidates. This runoff provision is included because the plan empowers multiple "third" parties. Without some minimum percentage, a candidate with a 30 or 20 percent plurality could win—not enough for a president to govern.
Its advocates argue that it prevents runner-up presidents and faithless electors, has a better contingency system, and is more fair and democratic because it is a national head count undistorted by state boundaries, by the
What could be said against such a plan? Actually quite a lot. It is true that it gets rid of the faithless electors, but there are less drastic ways to accomplish that. It is true that direct election would prevent a runner-up president, but that is rare and occurs only sometimes when the election verges on a draw. We have had six such elections and only two runner-up presidents. (The first time, in 1888, there was no outcry. The second time, in 2000, within a month after the inauguration, President Bush had high approval ratings, and most reformers were focusing on updating voting machines, creating a uniform ballot, and setting uniform closing times.) It may not happen often, but why not make it impossible? The answer is, direct election may get rid of the possibility of runner-up presidents but at rather great costs.
Too many people think that if you have a direct election all you do is assure that the man with the most votes wins and just about everything else will remain the same. But as every sports fan knows, when you change the rules you change the game; you change how and where it will be played; you change the game strategies and the talents of those who can play it well. In politics as in physics there is such a thing as a critical mass. In presidential elections numbers of votes are necessary but not sufficient. To create the critical mass necessary for a president to govern, his votes must be properly distributed. He cannot simply promise everything to one region or group (the populous eastern megalopolis, or white Christians) and ignore the rest of the country. To illustrate: Why are professional football teams required to win games in order to get into the playoffs and win the Super Bowl? Let's change the rules for the playoffs and select the teams that have scored the most points during the regular season. Football fans can tell you what would happen. Teams would run up the score against their weakest opponents, and the best teams in the most competitive divisions would have the least chance to get into the playoffs. The win-games principle is the best test of the teams' talents and abilities. The win-states principle is the best test of the candidates' abilities to govern.
As direct election removes the state barriers to combining votes, it removes the quarantine on fraud and court contests. If the direct election plan had been in effect in Election 2000, we would have had fifty Floridas. The conventional wisdom is wrong: the Florida problem was not caused by the Electoral College; rather it confined the interminable recounts and court challenges to one state. In any close election, direct election would mean every ballot box in the country would be opened for multiple recounts and court challenges.
As for contingency elections, we have not had one since the current system evolved in the 1830s. Under direct election they would be the norm. This is because direct election will destroy the two-party system. The winstates requirement of the Electoral College discourages national, regional, and sectional third parties as well as single-issue and ideologically extremist candidates because their supporters cannot combine their votes across states lines. It provides a carrot and a stick for national coalition building. The carrot is the incentive it gives the major parties to respond to the complaints voiced by or the new ideas advanced by third parties. Doing so helps them to build a majority and thus to win. It provides a stick compelling third parties to compromise some of their more radical views in order to become part of a major-party coalition. If they refuse to compromise they get nothing. Compromise is the lifeblood of politics.
A plebiscite alone encourages third parties because now they can combine the votes of their supporters across state lines and thus make a clearer statement. Add to this a 40 percent runoff rule, and you have a recipe for amultiparty system with frequent contingency elections. The popular runoff allows many third parties to win something in return for their support in the runoff—a seat on the Supreme Court, a cabinet post, a promised veto on some policy. And such deals could be cut in secret. So we would have candidates of the black party, the Hispanic party, the gay rights party, the labor party, the pro-and antiabortion parties, the military party, and the left-handed vegetarians party. Not only is this likely to deepen our political divisions, we would see recounts and court challenges in all the states, first to determine if any candidate won 40 percent of the national popular vote and if not, which candidates would be in the runoff. Then there would be more recounts and court challenges to determine who won the runoff. Probably the Speaker of the House would become acting president because no winner could be declared by January 20.
The reason the Electoral College does not produce contingency elections and supports the two-party system is the magnifier effect of the unit rule. To illustrate: in 1992 Clinton won the popular vote by 43 percent, but this was magnified by the unit rule to 69 percent of the electoral vote. Perot, who won 19 percent of the popular vote, did not win a single electoral vote because he did not win a single state. We have had five elections when there were strong third-party candidates, and in each one the magnifier effect produced an electoral vote landslide for the winning candidate. Even when the popular vote verges on a draw, in all but two cases it produced an electoral vote winner. And it has never denied victory to a candidate who won a majority of the popular vote.
The unit rule does give an advantage to large states, but that is somewhat balanced by the guaranteed minimum of three electoral votes to small states. It also increases the influence of minorities who are often the swing
The unit rule does not misrepresent the popular vote because that is recorded and published for all the world to see. So we know that Clinton was a two-time minority president: in neither election did he achieve the support of a popular majority. Instead it gives us a swift, sure decision, filling the office in a timely manner.
The major argument against direct election is that it does not pass the solar system test because it destroys the balance in our entire Constitution. The Constitution created a democratic, federal republic. To say that our government is federal is to say that the national government is constructed from representatives of people who live in and vote in separate states. It is to say that no votes in any national election can be combined across state lines. The Constitution itself was ratified under the federal principle. We are a nation of states. We have a community-based politics, not an identitybased politics. This system makes the distribution of the votes as important as the number of votes. The Framers wanted a president who could unite the nation, one whose popular vote support was both sufficient and properly distributed so that he could govern the whole country. They did not want a system in which the people in the largest and most populous states would choose the president without regard for the people in the smaller states.
The principle underlying the direct election plan is the assertion that the federal principle is unfair and undemocratic in presidential elections. But this means that the entire Constitution is undemocratic and unfair. Attacks on the legitimacy of the federal principle cannot be confined. They must and will extend to the Senate and the House and to the amendment process. Why should a state with half a million people have the same representation in the Senate as a state with twenty million? And why should a state with half a million people have a vote equal to a state with twenty million people on constitutional amendments? If the president should be elected by national plebiscite because he represents us all, why shouldn't we have a national plebiscite on constitutional amendments that rule and limit us all? And why shouldn't we have a national plebiscite on Supreme Court justices who interpret our Constitution?
The Framers knew the answer to these questions: majority tyranny. The will of the people is not the same as the will of the numerical majority, for the majority is only a part of the people. The Framers wanted to prevent
Because the foundation of all three branches of the national government is federal, the system is in balance and the separation of powers is preserved. If the president alone were exempted from the federal principle, he would be a Caesar. He could claim to be the only authentic voice of the people, and the balance of power would tip dangerously to the president and away from Congress. Further, if the president were exempted from the federal principle, he would be insensitive to state and local issues, thus destroying the balance between legitimate local and national interests. The federal principle is essential to the solar system of checks and balances that supplies "by opposite and rival interests, the defect of better motives." The attack on the federal principle in presidential elections is an attack on the entire Constitution.
THE NATIONAL BONUS PLAN
Another reform, proposed by a task force of the Twentieth Century Fund, is the national bonus plan.[2] The supporters of this plan want to prevent a runner-up president, get rid of faithless electors, support the two-party system, and preserve the federal principle of the Constitution. The plan would abolish the office of elector, and the electoral votes would be cast automatically. It would create a bonus of 102 electoral votes (two for each state and the District of Columbia) to be awarded to the winner of a plurality of the national popular vote. The unit rule would be mandated for the state electoral votes. The national electoral votes and the state electoral votes would be added together, making a new total of 640 electoral votes, and an absolute majority of 321 would be required to win. If no candidate won an absolute majority, there would be a runoff between the two top candidates within thirty days, and the candidate who won the electoral vote majority in the runoff would be president.
All the goals of this plan are desirable. The question is whether the plan could actually achieve these goals. Remember, when you change the rules, you change the game. This plan surely would change campaign strategies, and it could do so in a way that undermines the federal principle. If you need 321 electoral votes to win, and you can get 102 by winning the national
This plan could produce a president who won far less than 40 percent of the popular vote. A candidate could do this in a multicandidate race if he won the eight largest states and the bonus votes with pluralities of 33 to 35 percent. Instead of isolating and limiting the recount and court challenges problem, this plan makes it pandemic. The 102 electoral vote bonus for winning the popular votes means that in close elections every ballot box would be infected. The bonus votes are well worth the demand for recounts and court challenges. And we already know that this problem could not be resolved in thirty days in the single state of Florida. Imagine the time it would take in the entire country.
And there could be many close elections because, despite the intention to support the two-party system, the plan could undermine it. It does this with its national runoff provision. It is the very existence of a runoff election that provides the incentive for multiple parties to enter the race. They can win something by trading on their support in the runoff. A runoff creates a second-chance psychology among voters: I'll cast a "send-them-a-message" vote in the general election because there's a reasonable possibility I'll have a second chance in a runoff. The "win-something" and "second-chance" psychologies can destroy the two-party system.
The bonus plan has been around for more than twenty years, and it has not picked up much support because it reduces the value of the electoral votes of the small states. The bonus votes are more valuable than the combined votes of twenty-two states and the District of Columbia. Because it only takes thirteen states to defeat a constitutional amendment, its chances are slim and none.
INSTANT RUNOFF VOTING
The latest fad reform proposal is instant runoff voting, sometimes called the Irish Ballot.[3] Former presidential candidate John Anderson is a leading advocate of this plan. Under this plan, the Electoral College would be abolished, and voters would rank their preferences for all candidates—first choice, second choice, … fourteenth choice. If no candidate wins a majority of the popular votes, the last-place candidate is eliminated, and the
This may work well enough in a small homogeneous country such as Ireland, but could it work here, in a heterogeneous continental country? Would people who could not handle the butterfly ballot have a chance of getting this right? We usually have twelve to fifteen candidates on the ballot. Most are fringe candidates who poll less than fifty thousand votes. In a close election do we want the supporters of these candidates to decide the winner? And are the supporters of such candidates likely to have picked one of the two major party candidates as their second choices?
Further, are we going to require people to cast second, third, and fourteenth choices? Given a secret ballot, how would you enforce this? Suppose many people refused to list any second choice. Or suppose they cast their second-choice votes for some total nonentity candidate, votes not even for a Nader or a Buchanan but for one of the twelve or more truly fringe candidates. This plan destroys a two-party system because it encourages and empowers small parties and gives fringe party voters a strategic advantage. This system is mind-bogglingly complicated. No one will be surprised to learn that the plan was invented by an MIT professor in 1870. It raises concerns that the candidate who wins may not be the candidate who got the most votes or who really was the second choice of most people in the country.
THE AUTOMATIC PLAN
The automatic plan[4] is designed to remove one danger in the existing system—the faithless elector. It would abolish the office of elector, and the electoral votes would be cast automatically. For almost all of our history the office has been ministerial and ceremonial, and the clear expectation of the voters has been and is that the electors must be faithful. The first faithless elector was Federalist Samuel Miles, in 1796, and he provoked the now famous retort: "Do I chuse Samuel Miles to determine for me whether John Adams or Thomas Jefferson shall be President? No! I chuse him to act not to think." One hundred million voters today would agree.
There have not been many faithless electors; out of approximately twenty-one thousand electoral votes cast, only twelve to fifteen have been faithless. Faithless electors have acted to protest or to advocate some policy or simply to get their names in the papers. Nonetheless, the office is potentially dangerous and unnecessary. The parties have taken over their nominating function, and modern communications have destroyed the argument that the people do not know enough about candidates from other
This reform passes the solar system test because it upholds both the separation of powers and the federal principle. It would simply turn what has been, since the 1830s, a de facto, direct, popular, federal election into ade jure one. I strongly support this reform, and almost no one opposes it in principle. It has not picked up steam because some think the problem can be addressed by the political parties, who choose their candidates for the office of elector and should take care to guarantee their loyalty. They conclude that it is not worth the effort to pass a constitutional amendment. Others want to abolish the federal principle in presidential elections, and this proposal not only falls far short of their goal, it also might destroy any momentum for more radical change. Further, most versions of the automatic plan would constitutionalize the unit rule and thus lose the support of proponents of the district and proportional plans. Finally, it would mean a loss of power for the state legislatures, and some are jealous of their presidential selection prerogatives.
THE DISTRICT PLAN
There are two reforms that do not require a constitutional amendment because they would not abolish the Electoral College: the district plan and the proportional plan.[5] The common purpose of these plans is to prohibit the unit rule. The states are free to choose either plan, since the state legislatures have plenary power to decide how their electoral votes will be cast. Very few have done so. To be effective, these plans would have to be imposed by a constitutional amendment.
The district plan gives one electoral vote to the candidate who wins a popular vote plurality in each congressional district and two electoral votes to the candidate who wins a popular vote plurality in the whole state. Two small states, Maine (four electoral votes) and Nebraska (five), used this plan in Election 2000.
Proponents of this plan say that it more accurately reflects the popular will in the state and encourages voter turnout. They say supporters of the minority party in a state may be discouraged by the unit rule. Take, for example, New York: before Election 2000, it was clear that Gore would win the state: the votes of Bush supporters in the rural upstate counties would be overwhelmed by Gore's strong support in New York City. Proponents of this plan conclude that the supporters of a statewide minority candidate are disfranchised by the unit rule and that it increases the influence of
One objection to the district plan is the odious and probably insurmountable problem of gerrymandering the districts. Many forms of gerrymandering have been prohibited by law and by decisions of the Supreme Court, but gerrymandering is still practiced today, and now the legislatures have computers to find ways around the laws. Other problems are that it is more likely than the current system to trigger a contingency election in the House of Representatives or to produce a runner-up president. A CQ Researcher analysis in December 2000 of the ten elections from 1960 through 1996 pointed out that if it had been in place, the district plan would have elected runner-up Nixon in 1960 and would have produced an electoral vote tie between Ford and Carter in 1976, thus sending the election to the House of Representatives. If this were not enough, the district plan would undermine the two-party system because it is much easier for multiple third parties to win electoral votes in a district system than under the unit rule. Finally, it makes recounts and court challenges more likely in close elections—first statewide to determine who won the constant two statewide electoral votes and then in multiple districts.
The district plan may be adopted by a few more states, but it is not likely to be adopted widely. Democrats will not support it because it currently favors Republican candidates in close elections. The 2000 election revealed a deep urban/rural divide in the country. Gore won by big percentages in urban areas, in a mere 676 counties; Bush won in 2,477 counties. Further, most medium and large states will not adopt this plan because they know that the unit rule does in fact increase those states' influence in presidential elections, thereby balancing the advantage the small states have with the constant minimum of three electoral votes. Many small states will soon understand that scattering their votes in districts only reduces their impact on the election. Unless the district plan were mandated for all states by a constitutional amendment, which is not going to happen, it is going nowhere.
THE PROPORTIONAL PLAN
The proportional plan has had its adherents for some time and for the same reasons given by supporters of the district plan—more accurate reflection of the popular vote and encouraging participation. It would assign a state's electoral votes on the basis of the percentage of the popular votes
And it would destroy our two-party system because it feeds and nourishes multiple third parties. Many third parties would win electoral votes. It is likely that Nader would have won some in Election 2000, and certainly Perot would have won many in 1992. Given the deep anger of many Democrats at Ralph Nader, who, they believe, was a spoiler candidate in 2000, it is likely the proportional plan will embitter many people and widen our political divisions. Like the district plan, this plan has no real chance of being widely adopted and for the same reasons.
CONCLUSION
The question is: does our presidential election system have a sound heart, or does it need major surgery? On the basis of cost-benefit analysis, it beats all but one of the alternatives. All of the reforms, except the automatic plan, create more problems than they solve. All the others undermine or destroy our moderate, stabilizing two-party system. All the others open the door to multiple recounts and court challenges. All, except the automatic plan and instant runoff voting, make contingency elections more likely. All, except the automatic plan, abolish the unit rule. This rule is a majority forcing and shaping device that gives candidates the incentive to build broad, cross-national, inclusive political majorities that allow a president to govern.
On the basis of fundamental principle it is the clear winner. All of the reforms, except the automatic plan, fail the solar system test. All the others would deform our Constitution because they all abandon or weaken the federal principle in presidential elections. The federal principle is the fulcrum
Alexis de Tocqueville called the federal principle "a wholly novel theory which may be considered as a great discovery in modern political science." The federal principle is an alloy. We create alloys because we want to combine the advantages and avoid the weaknesses of two different things. Steel alloys can make things simultaneously stronger, lighter, and tougher. Tocqueville intuitively understood the federal principle is an alloy because he says its advantage is to unite the benefits and avoid the weaknesses of small and large societies. It unites the strength and wealth of large societies with the liberty found in small ones. In fusing the two it creates a flexibility and diversity otherwise not found in large powerful societies. Tocqueville was right. It was "a great discovery." Let us preserve it.[6]
NOTES
1. On the direct election plan, see Judith A. Best, The Case against Direct Election of the President: A Defense of the Electoral College (Ithaca: Cornell University Press, 1975); Judith A. Best, Choice of the People? Debating the Electoral College (Lanham, Md.: Rowman and Littlefield, 1996); Neal Peirce and Lawrence Longley, The People's President: The Electoral College in American History and the Direct-Vote Alternative (New Haven: Yale University Press, 1981).
2. On the national bonus plan, see Twentieth Century Fund, Winner Take All: Report of the Twentieth Century Fund Task Force on Reform of the Presidential Election Process (New York: Holmes and Meier, 1978); Best, Choice of the People? 62–63.
3. On instant runoff voting, see David Wessel and James R. Hagerty, "Tired of Recounts? Try Ireland's Approach to Runoff Voting," Wall Street Journal, Nov. 14, 2000, at A18.
4. On the automatic plan, see Best, The Case against Direct Election of the President, 21, 43–44; Peirce and Longley, The People's President, 177–81.
5. On the district and proportional plans, see Best, The Case against Direct Election of the President, 17–19, 43–44; "Electoral College: Should It Be Abolished? Should It Be Changed?" CQ Researcher, vol. 10, no. 42 (Washington, D.C.: CQ Press, December 8, 2000); Michael J. Glennon, "When No Majority Rules: The Electoral College
6. Other sources include After the People Vote, ed. Walter Berns (Washington, D.C.: AEI Press, 1992); "Electoral College: Anachronism or Bulwark of Democracy?" Congressional Digest, vol. 80, no. 1 (Washington, D.C.: Congressional Digest Corp., January 2001); The Electoral College and Direct Election of the President: Hearings before the Senate Comm. on the Judiciary, Subcomm. on the Constitution, 102d Cong., 2d sess. (1992).