6. REFORM?
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).
20. THE ELECTORAL COLLEGE:
A FATALLY FLAWED INSTITUTION
Lawrence D. Longley
The Electoral College is a highly imperfect method of electing the president of the United States. At best it distorts campaign strategy and poorly represents the popular will. At worst it can create a political and constitutional crisis in determining who should be president. My argument is simple: the 2000 election, like any election, vividly illustrates the distortions and imperfections of this fatally flawed means of determining the American president. Further, as in 2000 or a future election, the Electoral College has the potential for creating a serious electoral crisis, deeply eroding the security of our democratic processes.
THE ELECTORAL COLLEGE AT ITS BEST
The Electoral College means of presidential election is of great significance, even when it produces a clear decision. The Electoral College is not a neutral and fair counting device for tallying popular votes cast for president in the form of electoral votes. Instead it invests some votes with more significance than others, according to the state in which they are cast. As a result, these distortions of popular preferences greatly influence candidate strategy: certain key states, their voters, parochial interests, political leaders, and unique local factors, are favored. This focusing on certain key battleground states—and the writing off of other states—could be easily observed in the recent 2000 presidential campaign.
The Electoral College election of the president also discriminates among types of candidates. Independent or third-party contenders with a regional following have great opportunities for Electoral College significance, while independent or third-party candidates with broad-based but nationally distributed support may find themselves excluded from winning any Electoral
In short, at best the Electoral College is neither neutral nor fair in its counting of the popular votes cast for the president of the United States. The problems of the Electoral College at its best can be summarized as follows.
1. The electoral college is a distorted counting device.
There are many reasons why the division of electoral votes will always differ from the division of popular votes. Among these are the apportionment of electoral votes among the states on the basis of census population figures that do not reflect population shifts except every ten years or more; the assignment of electoral votes to states on the basis of population figures rather than on a voter turnout basis; the allocation of a "constant two" electoral votes equally to each state regardless of its size; and the winnertake-all system for determining a state's entire bloc of electoral votes on the basis of a plurality (not a majority) of popular votes.
The census-based determination of electoral votes allotted each state ensures, for example, that the Sun Belt states of Arizona and Florida, which grew rapidly during the 1990s, will not have this new population growth reflected in their electoral vote total until the presidential election four years after the 2000 census—or fourteen years later. The Electoral College vote's neglect of voter turnout, either over time or among states, maintains the same number of electoral votes for each state despite possible increases in voter participation or, alternatively, continued low levels of voter participation. It is a curious feature of the Electoral College that high turnout in a state is ignored while low levels of voter participation are rewarded.
It is the constant two and winner-take-all characteristics of the Electoral College, however, that are the sources of its most significant distortions. The extra two electoral votes, regardless of population, which correspond to each state's two senators, provide an advantage to the very smallest states by giving them at least three electoral votes, whereas their population might otherwise entitle them to barely one. The importance of the winner-takeall feature overshadows all the other distortions: by carrying New York or California—even by the narrowest margin of popular votes—a candidate will win all of that state's thirty-three or fifty-four electoral votes. As a consequence,
2. Candidate strategy is shaped and determined by these distortions.
Strategists for presidential candidates know well the importance of these distortions of the Electoral College: any serious presidential candidate will spend inordinate time in the largest states. An additional day of campaigning, an extra expenditure of money, a special appeal—any of these might be pivotal in terms of winning an entire large bloc of electoral votes—in the case of California in the 2000 election, fully 20 percent of the 270 electoral votes needed to win. Candidates and their strategists do not look at the election in terms of the national popular vote but rather in terms of popular votes that might tilt an entire state's winner-take-all bloc of electoral votes.
In a race involving three significant candidates—as was the case in both 1992 and 1996 (especially 1992)—the plurality win and winner-take-all features take on special importance. A candidate in a three-way division of the vote does not need 50 percent of California's votes to win its huge bloc of 54 electoral votes. Forty percent or even 35 percent might well do it. A close three-way division of popular votes in a large state increases even further the pivotal value of that state.
3. The importance of a state's parochial interests, political
leaders, and unique local factors is magnified by the Electoral College.
The distortions of the Electoral College lead candidates to focus on large, swingable states in order to win their large blocs of electoral votes, and the best way of appealing to these states is, of course, to concern oneself with the issues and interests specific to that state. As a consequence, candidates always will be exceedingly articulate about the problems of Pennsylvania's coal fields or California's defense industry or New York City's crime rates. A special premium is also placed on the role of key large-state political leaders whose enthusiastic efforts might be significant in determining that state's outcome. In the 2000 election, Mayors Rudolph Giuliani of New York, Richard Daley of Chicago, and Richard Riordan of Los Angeles as well as Governors George Pataki of New York, George Ryan of Illinois, and Gray Davis of California were consulted—and courted—by the candidates, as were the leaders of the California Hispanic and the New York Jewish
In contrast, other states and their distinctive interests are neglected. Smaller states, where candidate effort resulting in a narrow plurality win could at most tilt only three or four electoral votes, generally are ignored. There is also a lack of candidate attention to states of any size that are viewed as "already decided." Candidates have no incentive, under the Electoral College, to waste campaign time or resources on a state or region already likely to go for—or against—them. In short, Delaware, for example, a very small state, is unlikely to be contested vigorously by any candidate because of its size; likewise, many of the southern and Rocky Mountain states may well be conceded to the Republican candidate and many of the northeastern and Pacific Coast states conceded to the Democratic contender as a consequence of being "written off" by all the candidates.
In short, the Electoral College focuses candidates' attention and resources on those large states that are seen as pivotal and away from voters in other states that are too small or that are seen as too predictable in outcome. The political interests of the large, swingable states are more than amply looked after; those of the other states are relatively neglected.
4. The Electoral College differs in impact on different types of candidates.
Besides distorting vote counts, the Electoral College discriminates among candidates. The two major party nominees start off on a relatively equal footing as far as the Electoral College goes; each enjoys roughly comparable potential in the large, swingable states (the much-heralded Republican "Electoral College lock" having been picked and thus effectively junked by Bill Clinton's decisive Democratic Electoral College successes in the 1992 and 1996 presidential elections). Independent or third-party candidates, however, differ greatly in their potential in the Electoral College.
Regionally based independent or third-party candidates—for example, Strom Thurmond in 1948 and George Wallace in 1968—can enjoy real benefits from the Electoral College. Because of their concentrated regional strength, they can hope to carry some states and, with these popular vote pluralities, their entire blocs of electoral votes. Their popular vote need not constitute even an absolute majority in a state: a simple plurality of votes will suffice.
Independent or third-party candidates with broad-based but nationally distributed support, in contrast, are sharply disadvantaged by the Electoral College. Without plurality support somewhere, such a candidate may be completely shut out from any electoral votes. Such was precisely the case of independent candidates John B. Anderson in 1980 and H. Ross Perot
The problem here is more than just a profound unfairness to nationally based independent or third-party candidates when their millions of popular votes result in no electoral votes. A major factor limiting the support of these very same contenders is the view that a popular vote for them is wasted. As the campaign comes to its conclusion, millions of voters who might be inclined to vote for these candidates may well decide not to do so because of the Electoral College. Voters may reason, My preferred candidate isn't likely to carry my state. Instead, one of the other, major party candidates certainly will. I had better vote for one of them (or against one of them by voting for the other). I want to have my vote mean something in the election.
There is, however, a way that a "third-place" contender with wide national appeal can be of significance in a presidential election, even should he or she not be in a position to win electoral votes. The candidate's votes may be decisive in tilting some of the large, closely competitive states and thereby tilting the outcome of the national election between the major party candidates, as Ralph Nader did in 2000.
In short, the electoral college at best treats candidates unequally and creates enormous potential difficulties for many independent or third-party candidates, difficulties that a possible additional candidate may or may not be able to overcome in subsequent elections. Whatever their level of success, however, independent or third-party candidates can have great significance in electoral outcomes because of the powerful impact of relatively few popular votes in tightly contested large, marginal states, where the determination of blocs of electoral votes may ride on small and shifting state pluralities.
5. Faithless electors may further distort the popular will.
The last problem of the Electoral College at its best—in other words, while still producing a clear decision—is the potential occurrence of faithless electors. In eight of the fourteen most recent elections, we have seen electors deciding, after the November election, to vote for someone other than the candidate for whom they were expected to vote. In each of these instances, however, the defections were both singular in occurrence and insignificant in outcome. Nevertheless, they constitute a disturbing distortion of the popular will. When one of the District of Columbia's three Democratic electors decides, as in 2000, not to vote for the District's popular vote winner, Al Gore, the voters of D.C. have lost a portion of their franchise.
Individual electors who defect for whatever reason—strongly held issues or personal whim—have been of minor significance in the past. Faithless electors, however, might proliferate in an election, producing a very close electoral vote tally in which a few shifting electoral votes could change the outcome, as in 2000. In any case, the occurrence of faithless electors, even on an occasional basis, is one more way in which the Electoral College fails—even when definitive in its choice—to reflect the popular vote faithfully and accurately. The Electoral College is not a neutral and fair means of electing the president. Neither, as we shall now see, is it a sure way of determining who shall be president.
THE ELECTORAL COLLEGE AT ITS WORST
The Electoral College does not result inevitably in a clear determination of the election outcome. Rather, the result of the popular vote, when transformed into the electoral votes that actually determine the president, may be uncertain and unresolved through December and even into January.
1. In a very close electoral vote count,
ambitious electors could determine the outcome.
Individual electors have defected from voter expectations in the past for highly individual reasons. In the case of an Electoral College majority resting on a thin margin of a few votes, electors seeking personal publicity or wanting to bring attention to a pet cause could withhold—or threaten to withhold—their electoral votes from the narrow electoral vote leader. Uncertainty and suspense over whether there would be an actual electoral vote majority when the electors voted in mid-December could, as in the election of 2000, make the period of forty or so days following the November election a period of political disquiet.
2. An election can produce a divided verdict, one candidate receiving the most
popular votes and the other candidate winning the election in electoral votes.
An electoral outcome with a divided verdict might be conclusive in the sense that the candidate with the majority of electoral votes would become president, with little question of outright popular upheaval. The Electoral College would be seen at its worst, however, in the effect of such a "dividedverdict" election on the legitimacy of a president. Should, as in the election of 2000, a person be elected—or reelected—as president despite clearly having run second in popular preference and votes, the result would be a presidency weakened in its ability to govern and lead the American people. A divided-verdict election is, of course, entirely possible in any election with
3. An election that is undecided on election night may be decided through
deals and actions by the electors at the mid-December Electoral College meetings.
The most frequently expressed fear about the Electoral College concerns the possibility of a deadlock in which no candidate wins an electoral vote majority on the basis of the election night popular vote results. Most analysts assume that in this case an undecided election would go directly to the House of Representatives in January. In fact, it is entirely possible that an apparent Electoral College deadlock, based on the November returns, would set off a sequence of unsavory deals and actions involving the electors themselves.
Should an election produce an apparent election night Electoral College deadlock, a dramatic chain of events dictated in large part by the Constitution would be set into action. The forty-odd days between the election day, in early November, and the day on which the electors meet in their respective capitals in mid-December, would be a period of speculation, conjecture, and crisis. Most electors would certainly follow party lines, but some might deviate from party expectations and vote for a clear popular vote winner or to help a candidate (even one from the opposing party) who had almost achieved an electoral vote majority, in order to resolve an otherwise deadlocked election. Certainly, these nearly six weeks would be a period of intense uncertainty and unease as obscure presidential electors decided the outcome of the presidential election.
Such an occurrence is entirely possible in any close election, especially should a third-party or independent candidate be able to carry one or more states (even by thin pluralities) and thus remove that state's electoral votes from those available to the major party candidates to forge an electoral vote majority. The presidency then would be decided not on election night but through deals or switches at the Electoral College meetings in mid-December or on the basis of the later uncertainties of the House of Representatives.
4. If the Electoral College fails to produce a majority in
December, the election of the president will take place in January under
the extraordinary procedure of selection by the House of Representatives.
Election of the president by the House of Representatives would be an exceedingly awkward undertaking. According to the Constitution, voting in the House would be by equally weighted states, with an absolute majority of twenty-six states needed for a decision. The House would choose from
Representatives would be in a great quandary as the House started to vote on January 6. Many would vote strictly along party lines, totally ignoring any strength that might have been shown by an independent or thirdparty candidate. Other House members might feel it appropriate or even politically necessary to vote for the candidate (the opposing major party contender, or even an independent candidate) who had carried their districts. Some members might even feel influenced by the national popular vote result or by who had received the most popular votes in their states. In other words, should an election be thrown into the House, representatives would vote in different ways for a number of different reasons. A final outcome would be difficult to predict, despite whatever partisan divisions existed.
As a result of the 2000 congressional election, the House is controlled by the Republican Party both narrowly through its total number of seats and, more important for our purposes, in terms of state delegations. Twenty-eight state delegations (the absolute constitutional minimum necessary for presidential election is twenty-six) have Republican majorities. Despite this majority of state delegations controlled by Republicans, House voting for president following the 2000 election would have been at best confused and unpredictable as members sorted out conflicting pressures of party, constituency, political self-interest, and personal preference.
Personal preference would have been especially significant in the case of representatives from the smallest states. Seven states (Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming) have but one representative; each would be able to cast one of the twenty-six House state votes that could elect the president. These seven individuals, representing slightly more than 4 million citizens, would be able to outvote the 177 House members from the six largest states—California, Florida, Illinois, New York, Pennsylvania, and Texas—who represent a total of more than 100 million citizens—twenty-five times more. The inequities are even starker for the 600,000 residents of the nation's capital, the District of Columbia. Lacking any voting representation in the House of Representatives, they would have no votes at all in the House election of the president of the American people.
5. A final and definitive decision by the
House in January is by no means certain.
If called on to choose a president, the House would commence its deliberations and voting on January 6, only fourteen days before the constitutionally mandated inauguration day, January 20. Such a House vote would
If no president has been elected by the House of Representatives by noon on January 20, the Twentieth Amendment provides that the vice president—elect shall "act as President." This assumes, of course, that a vice president—elect in fact had been chosen by the U.S. Senate by receiving a majority of votes there. This would be a likely outcome, of course, since the voting there is one vote per senator and, most important, is limited to the top two contenders. It should be noted, however, that an exact tie in the Senate vote is also a possibility should the Senate be divided along precisely balanced party lines, as in 2001 (the outgoing vice president would be unable to break such a tie because Senate voting for the election of a vice president is limited to the one hundred members of the Senate). If both the House and the Senate should deadlock and be unable to resolve their stalemates by January 20, then the Automatic Succession Act of 1947 would apply. In case of a vacancy in both the presidential and vice presidential offices, the act places the Speaker of the House, the president pro tempore of the Senate, and the various cabinet officers in the line of succession to the presidency.
Another astonishing situation might arise uniquely in the Senate in the admittedly unlikely case that either the Republican or Democratic presidential—vice presidential ticket should run third in electoral votes (such was, in fact, the fate of the regular Republican ticket headed by incumbent President William H. Taft in 1912). If, for example, the Republican ticket were in the third-place position and no ticket won an outright electoral vote majority, a Republican-controlled Senate might be faced with a most curious choice for vice president—between the Democratic vice presidential nominee and the independent candidate's running mate—with the winner also being called on to serve (should the House deadlock) as acting president.
The result of a presidential election giving rise to the necessity of House and Senate decision, then, might itself not be a decisive, even if delayed, determination of a president but rather the designation of a vice president (or other official) who would only act as president. This person would fill
The Electoral College in future elections may, happily, exhibit few if any of these extremely serious shortcomings. Or the American people may be unlucky in an election year to follow and be faced, as in 2000, by a clear crisis in the Electoral College. At the least the Electoral College was a crucial factor in shaping and distorting the popular will in the 2000 election, and if not reformed, it will be of unhappy significance in subsequent elections.
At its best, the Electoral College operates in an inherently distorted manner in transforming popular votes into electoral votes. In addition, it has enormous potential to be a dangerous institution threatening the certainty of our elections and the legitimacy of our presidents. The defects of the contemporary Electoral College cannot be dealt with by patchwork reforms such as abolishing the office of presidential elector. This distorted and unwieldy counting device must be abolished entirely, and the votes of the American people—wherever cast—must be counted directly and equally in determining who shall be president of the United States. The election of 2000 has finally provided the American public with indisputable evidence of the failings of the Electoral College as a means of electing the people's president: the barnacles of the Electoral College should be scraped from the ship of state.
21. THE ELECTORAL COLLEGE:
A MODEST CONTRIBUTION
Keith E. Whittington
If one were to make a list of the most valuable elements of the United States Constitution, ranking them according to the importance of their contribution to preserving constitutional values, the Electoral College would fall rather low on the list. It is doubtful that we would design such an institution today if we were writing a constitution from scratch, and even the Founders came up with the device rather haphazardly. Unsurprisingly, it has been among the most frequent targets of reform, with hundreds of proposed constitutional amendments having been introduced in Congress to alter the presidential selection process. Nonetheless, the Electoral College makes a modest contribution to our constitutional and political system, and it would be unwise to tinker with it.
BUILDING THE ELECTORAL COLLEGE
Before considering the contribution of the Electoral College, it is worth specifying the matter for consideration. There are several important elements to the constitutional scheme for presidential selection.[1] First, the president is chosen directly by a relatively small number of specially selected presidential electors, not by the general citizenry. Citizens cast votes in November for electors to represent them in the formal presidential election conducted in the various states in December. Although citizens are formally voting for electors, most ballots now show only the names of the presidential candidates in order to minimize voter confusion and ease printing. Electors are generally loyal activists of the political parties who are "pledged" to vote for their party's candidate. Some states have attempted to bind electors to their pledges through the threat of small sanctions for voting unfaithfully, but there is no constitutional barrier to electors voting
Second, the number of electors, or seats in the Electoral College, is apportioned to the states in a number equal to the number of members in the House of Representatives plus the number of senators to which each state is entitled. This apportionment slightly favors the small states, relative to population, reflecting both the equal representation of the states in the U.S. Senate and the minimum representation guaranteed to each state in the U.S. House. Thus, even the smallest states are entitled to no fewer than three electors. In 1961 the Twenty-third Amendment awarded the District of Columbia the same number of electors as the least populous states.
Third, the Constitution specifies that the electors will be chosen in a manner determined by the state legislatures.[2] The states experimented with a variety of methods for choosing electors in the early years of the Republic. South Carolina was the last state to adopt statewide popular election as the means for choosing presidential electors—in 1868, more than three decades after the rest of the states had settled on that method of selection.[3] By 1836 every state had also chosen to award its electors on a winner-takeall, or unit, basis. States that award their electoral votes as a unit to a single candidate have greater weight than states that divide their electoral votes among multiple candidates, which creates an incentive for each state to adopt the unit-vote approach. Large states are also disproportionately benefited over small states by this system as they have a larger bloc of votes to swing behind a favored candidate no matter how small the vote differential between the candidates. Since 1836 there have been periodic experiments by some states with district-based apportionment of electors, that is, awarding electors by the popular vote in each congressional district. Maine and Nebraska have employed this system most recently. Some states have allowed citizens to vote for electors individually rather than as a single-party slate. This also creates the possibility of dividing electoral votes among different parties.
Fourth, candidates must win the votes of a majority of the electors appointed. The ballots of the presidential electors are opened and counted by the president of the Senate before a joint session of the House and the Senate.[4] If no candidate wins a majority of the electoral votes, then the House, voting by state, chooses a president from among the top three candidates. Originally, the presidential candidate with the second highest number of electoral votes became the vice president. The development of political parties made that system problematic, as the election of 1800 demonstrated. The Twelfth Amendment separated the ballots for president and
The presidential selection system has developed importantly since the Founding, but the bare constitutional bones of the Electoral College were put together with a combination of choice and happenstance. In Federalist No. 68, Alexander Hamilton concluded that the Electoral College scheme was "at least excellent" if "not perfect." No doubt the system seemed pleasing in part because it at least resolved the thorny problem of presidential selection that had bedeviled the Framers throughout the Philadelphia Convention.[5] The Convention initially considered following the example of the majority of the states at that time and giving the power of choosing the chief executive to the legislature. That proposal was never satisfying, however. Congressional selection of the president undermined the independence of the president and gave too much power to the legislature. At the same time, if the president could serve for more than one term, then the system also encouraged intrigue and the corruption of the legislature by an ambitious president seeking reelection. The obvious alternative, direct popular election of the president, had its own problems. Although everyone expected George Washington to be the first president, many of the Founders doubted that the people in a country as large as the United States would be able to know and evaluate the average presidential candidate. The most populous states could also expect to dominate a presidency selected by general election.[6] With only one chief executive, the Constitution needed to ensure that the president would represent the whole nation if states with diverse interests were to be expected to join the union. In the legislature, a balance of interests could be achieved by adding more representatives. The Founders' desire to vest executive power in only one person closed that route. Balance would have to be achieved through the mode of selecting the president.
The Electoral College was a useful compromise for the Philadelphia drafters that seemed to solve several of their problems at once. It replicated the carefully negotiated scheme of representation embodied in the Congress, without actually using Congress to choose a president. The temporary and diffuse nature of the Electoral College eliminated the concern with intrigue and corruption in the presidential selection while ensuring the appropriate independence of both the legislative and the executive branch. The presidential electors would be more likely to be able to evaluate the less famous candidates than would the people themselves, and the most democratic chamber of the national legislature could still serve as a backstop if no candidate could win the support of an electoral majority.[7]
The Founders' concerns are not our own. Even if the Electoral College was an essential compromise that helped to secure the success of the early Constitution and Union, it may no longer be particularly valuable. The rise
The history and continuing development of the mode of presidential selection should not be irrelevant to our current judgments, however. On the one hand, the system has proven remarkably adaptive to changing social and political conditions, and that has minimized the need for changing it. On the other hand, the very unpredictability of the historical developments that have surrounded the Electoral College should caution us against unnecessary tinkering or wholesale reform. It could not have been expected that the presidential selection system would have to handle the rise of political parties or the expansion of the nation across the continent or the creation of modern media campaigns. It was not foreseen that states would game the system by packaging their electors as a bloc or that Congress would become so responsive to public opinion. The Founders adopted a scheme to solve their problems, and we have been fortunate that their mechanism has proven sufficient for later generations as well. It is difficult to predict the course of future events or the influence of basic constitutional changes on the shape of politics. Unless the existing system is significantly and irredeemably broken, we should hesitate to attempt to fix it with untested schemes of our own. It is difficult to sustain the case that the Electoral College is importantly broken, and we should respect its modest virtues, including adaptability and durability.
SOME POTENTIAL PROBLEMS, REAL AND IMAGINED
Some of the potential problems with the Electoral College are more theoretical than real. Despite our current concern about divided government and the periodic appeal of parliamentary systems to some scholars, there
The 2000 election has called our attention to other potentially troubling but still fairly minor features of the Electoral College: state specification of the manner of choosing electors and congressional arbitration of the results. They should be briefly addressed. All the states fairly quickly adopted popular election as the method of choosing presidential electors (usually as a party slate), but there remains the potentially problematic condition of state electoral laws and the possibility of state legislatures reversing that decision. As for the first, there is no defense for flawed electoral laws, but the remedy is clear and readily available through state statute. It should be noted, however, that complaints about state electoral systems often arise out of substantive disputes rather than mere technical errors. Although some might prefer to impose a single vision of how elections should be conducted, a decentralized system has the virtue of allowing experimentation and reflecting genuine disagreement over the proper form of democracy. Over the course of American history, this decentralization has nurtured a variety of reform movements and made the system as a whole more adaptable. If some states have seemed behind the curve, others have been pushing ahead in testing new voting technologies, advancing progressive ballot designs, or varying the awarding of electors. As for the second, it seems clear that state legislators are generally in no hurry to take over the responsibility of choosing presidents from the voters—whom the legislators themselves will have to face in short order. Nonetheless, there are times when such measures may be appropriate. The Founders' electoral
Among the contingencies for which the Founders planned is the possibility that no presidential candidate will win the support of a majority of electors. Given the large expanse of the new nation and the lack of organized political parties, the Founders thought this contingency quite likely. Rather than accept a president with less, perhaps substantially less, than majority support, they preferred that the most democratically accountable body in the national government, the House of Representatives, choose a winner. This has been necessary only twice, in 1800 and 1824. On the first occasion, the need arose from an unforeseen complication of the rise of political parties that was corrected by the Twelfth Amendment; on the second, from the collapse of all political parties and the absence of any obvious presidential candidates around which a majority could rally. It is notable that the only other elections that have threatened to go to the House (in 1876 and 2000) did so as a result of disputes over the counting of the votes rather than because of the failure of any candidate to win an electoral majority. The need for such an election judge can be minimized, but it cannot be eliminated. It is not clear what institution we would prefer to arbitrate a disputed presidential election if not the electorally accountable House (the Supreme Court perhaps?).
Even the election of 1824 was not the notable failure for the presidential selection system that it is often portrayed as. The election of 1824 marked the end of the so-called Era of Good Feelings after the disintegration of the first political parties and before the rise of new parties. As a consequence it came closer to the Founders' expectations, with four regional candidates splitting the popular and electoral vote between them. Andrew Jackson won a plurality of the electoral and popular votes, but on the first ballot the House chose John Quincy Adams to serve as the nation's sixth president. Adams was limited to one term, as Jackson soundly defeated him in 1828. The Jacksonians harassed Adams throughout his term with charges of a "corrupt bargain" between the president and his new secretary of state, Henry Clay, who was both Speaker of the House and the trailing fourth presidential candidate in 1824. The charges leveled by the frontier military hero of the common man against the aristocratic son of a former president, cemented by Jackson's subsequent electoral triumph, have long tarred the constitutional role of the House in the presidential selection process. We should not be unduly swayed by results of the Jackson-Adams rematch, however. The Adams administration was a political disaster, plagued by policy errors and internal backbiting. Adams's reelection bid was doomed
The question of the Electoral College ultimately turns on its principle of apportioning the vote and the relative desirability of its primary alternative, direct popular election. The Electoral College replicates the representational scheme of the Congress. Both the president and the Congress speak for the same metaphorical people, and there is a pleasing symmetry in grounding both the executive and the legislative branches in the same electoral base. But, it is charged, that mode of presidential election is undemocratic. It is possible for the "wrong person" to win the presidency, as the loser of the popular vote can nonetheless win a majority of the electoral vote. This defect can of course be remedied simply by eliminating the Electoral College and choosing the president strictly on the basis of the popular vote. This is the central challenge to the Electoral College, and it must be addressed at somewhat greater length.
Democratic elections are a deceptively simple concept. In practice, there are a wide variety of electoral procedures serving a variety of competing goals, including interest representation, legitimization, securing accountability of government officials, provision of good government, and the orderly transition of power. There is no singly correct formula for institutionalizing democracy. Democratic elections may be at-large or within districts, divide power proportionally or in accord with majority rule, organize around parties or around individual candidates, conclude with a single ballot or require multiple ballots, or be structured in a variety of other ways. Laying aside the in-practice trivial fact that electoral votes are registered through human electors rather than automatically, the Electoral College is democratic.
The political winner is not a natural phenomenon. It is a creature of political institutions. The Electoral College cannot produce the "wrong winner." The right winner is defined by the electoral rules. The national total of the popular voting for president is literally meaningless, though easily calculated and widely reported. The Electoral College does not fail to accurately translate the national popular vote into an electoral winner.
One difficulty with the wrong winner thesis is that it ignores the effects of campaigns on electoral outcomes. Candidates understand the rules of the game when they enter the contest and map their strategies for victory accordingly. As a result, historic national popular vote totals are not particularly meaningful. Successful presidential candidates do not run a single, national campaign designed to maximize their popular vote. They run fifty state campaigns designed to secure an electoral majority. Resources dedicated to maximizing voter turnout in states that are already safely in a candidate's column would have been wasted and could have been more effectively used in mobilizing supporters in a handful of pivotal swing states, and thus candidates do not use their limited resources in that fashion. If a candidate happens to win a majority of the national popular vote in a closely contested election, it is essentially an accident. From the organization of the political parties to the selection of party nominees to the purchase of campaign advertising, American electoral politics is shaped by the strategic expectations built into the Electoral College. It is not possible to convert the actual results of presidential elections under the Electoral College into hypothetical results under alternative systems because it is not possible to know how the campaigns would have developed under those alternatives. Elected officials gain democratic legitimacy not from winning hypothetical elections under alternative electoral schemes but from winning actual elections conducted according to known rules.
The logic of the wrong winner thesis is not usually applied in other, similar contexts. It is only the transparency of the national popular vote that lends it credibility, not its intrinsic merit as a theory of elections or democratic legitimacy. In fact, there is some discrepancy between popular votes cast and electoral outcomes in most electoral systems, and it is not necessarily the primary goal of electoral systems to minimize that discrepancy. This is most obviously the case in legislative assemblies. It is never reported and never a point of concern what the national vote total might be for the majority party in the House of Representatives, for example. It is well recognized and fully accepted that what matters are votes cast within congressional districts and that political power within the House is distributed according to the number of seats won by a party, not the number of votes cast for that party. If some congressional candidates of the Democratic Party win by landslides, the "extra" Democratic votes in those congressional districts have no consequence for total Democratic power in the House of Representatives. Because seats (whether in a legislative assembly or in the Electoral College) come in chunkier increments than do votes, there is always a "votes-seats gap," though the districting structure of the U.S. House creates a larger gap than a variety of alternative electoral arrangements.
Even in the context of the elections of individuals it is not obvious how else to evaluate whether a candidate deserves to win other than by the fact that he or she did. It cannot be that the fear of the wrong winner reflects a fear of a president who did not receive the support of a popular majority. Nearly half of the presidents in American history received less than a majority of the votes cast in their elections. President Bill Clinton, for example, never won a majority of the votes cast in his two presidential elections and first won office with the support of only 43 percent of the voters. To the extent that voters can choose from more than two candidates, it would not be surprising if a majority voted for someone other than the eventual winner—or, to put it more forcefully, voted against the winner. Of course, it is also true that a large number of potential voters choose not to vote at all, and thus the registered popular support for any successful presidential candidate is actually substantially below a majority of the citizenry. To continue the 1992 example, Bill Clinton's measured share of support among registered voters was a mere 34 percent and only 24 percent of the voting age population. How should such citizens be incorporated into the calculation of the right winner, if not simply by determining the winner by following the established electoral rules? The question is of immediate interest because voter turnout is partially related to the nature of the campaigns. If the campaigns could have chosen to mobilize more of their supporters but did not for a variety of strategic reasons, then it is not clear why these strategically unmobilized voters are any more or less relevant to determining the right winner of the election than the "excess" voters who helped to create a popular but not an electoral majority.
Politics is all about match-ups. As social choice theory has amply demonstrated, voting outcomes crucially depend on the voting rules, including those rules determining the set of choices available to voters. Electoral outcomes would look different if voters were to choose from a set of six viable candidates rather than a set of two, or if they were offered a different pairing of candidates (e.g., John McCain vs. Al Gore rather than Bush vs. Gore). We do not generally regard successful candidates as suffering from a lack of democratic legitimacy if we know that a stronger opponent was waiting in the wings but did not enter the contest, or more provocatively was not able to win the nomination of a major party. Such possibilities are particularly telling because the available choice set is largely a function of the established electoral rules. The Electoral College discourages thirdparty candidates, and the party primary system is designed to mirror the Electoral College—resulting in the selection of party nominees who are more likely to succeed in a general election in the Electoral College. The
THE ELECTORAL COLLEGE AND CONSTITUTIONAL GOVERNMENT
It is, of course, possible to give up on the wrong winner thesis while still holding that this is the wrong electoral system and should be changed. The Electoral College, like the rest of the U.S. Constitution, embraces popular government but is skeptical of mere majoritarianism. A central problem of constitutional government is the difficulty of checking political power and holding political leaders accountable. Elections are an important mechanism for securing accountability, but they do not fully solve the problem of political power. Though elected political leaders are less likely to use their power to abuse the citizenry broadly than those not subject to electoral accountability, they and their supporters may still safely use their power to abuse a segment of the citizenry. The Founders were deeply concerned about this problem of "majority tyranny." The Constitution is filled with a wide variety of mechanisms for channeling political power toward productive ends and containing the threat of majority tyranny. The most prominent of these to modern commentators is judicial review, frequently if not entirely accurately regarded as "countermajoritarian." But many others—including separation of powers, bicameralism, federalism, and representative government—are not at all countermajoritarian. Rather, they affect how majorities are constituted. The basic structure of Congress reflects that principle, and it is likewise built into the constitutional mode of electing a president. To the extent that the president would be a powerful government official, the Founders wanted him to be responsive to the broad needs of the nation as a whole. But there is a trade-off between responsibility and capability, and the Founders wanted at least to ensure that the president would not be responsive only to narrow majorities. The Electoral College is designed to broaden the president's constituency. In doing so, it seeks to be simultaneously democratic and constitutional.
The Electoral College requires presidents to win what might be called a federal majority. It is not enough to win a simple national majority to win
The Electoral College is a modest check on national majoritarianism. The Founders judged that, all things considered, it would be preferable for the president to have not merely popular support but popular support widely distributed. The Electoral College favors candidates who have supporters broadly distributed across the country. The Electoral College does not reward candidates for being able to win extraordinarily large majorities in only a small part of the nation. Any votes won beyond a plurality in any given state are wasted from the perspective of the Electoral College. It is not enough for a presidential candidate to have the deep support of a handful of large states or of a particular region of the country. Under the Electoral College, a successful presidential candidate must be, or must become, a national candidate.
The Electoral College does not create an absolute barrier against regional or favorite-son candidates gaining the presidency, but it makes it more difficult for them to succeed. Sectionalism was an obvious threat to the future of the Union in 1787. The states were not yet politically, socially, or economically integrated, and state independence was a real possibility. The small states feared that the big states would dominate the new national government to their detriment. Various regions of the country feared that the others would gain dominance and turn the national government to their disadvantage. The Electoral College reduces the problem of sectional
It is shortsighted to imagine that such sectional animosities are of only historic interest. Constitutions must not only address the problems of the present moment, but must also be capable of forestalling the problems of the future. It is often too late to reform the constitutional arrangements when those new problems make themselves evident. By then, the competing interests have hardened and the stakes of reform are too visible; compromise and accommodation become too difficult to manage. Nations across the globe give evidence that regional conflicts are a perennial political problem. If the United States is currently relatively free of such conflicts, we should not readily assume that this will still be the case a few decades or a century into the future, when, we hope, our Constitution will still be operating. Taking down our constitutional protections in the political good times may only lead to regrets in the political bad times. But we should not be too complacent about the problem of regionalism even now. Without question, the country is more integrated and more completely a nation now than it was in the middle of the nineteenth century, but there are still important regional differences in the United States rooted in economics, demographics, culture, and even the weather. Although fortunately not torn by an issue such as slavery, the country is still differentially affected by a host of more mundane issues, from energy policy to natural resources conservation and use to industrial and agricultural policy to transportation policy and even international trade and foreign policy. In part because of these differences, the political parties usually have a core regional base. The Electoral College creates incentives for the parties to reach beyond that base in order to be successful. When parties are insufficiently attentive to the interests of some regions, their hold on the presidency is endangered. Starting with the election of 1896, the Democratic Party embraced Populism and retreated into the South. Compared to a national popular vote, the Electoral College devalued the overwhelming support the Democratic Party had in the one-party South and overvalued more evenly divided swing states. The Democrats were not competitive for the presidency until they broadened their coalition beyond the solid South by nominating New York's Franklin Roosevelt and reaching out to the urban North. Similarly, the modern Democratic Party has been most successful when it has nominated candidates from the South, which is now central to the Republican presidential calculation. Geography is not destiny, but it is often politically relevant. The American constitutional system encourages
The primary incentives of the Electoral College relate to regions and breadth of constituencies. This is related to but not quite the same as federalism and its particular concern for differentiating the responsibilities of the states and the national government. Both constitutional structures— the Electoral College and federalism—address the problem of geographic diversity of political interests, but the Electoral College tries to make national officials more responsive to those interests and federalism tries to devolve political power to state and local officials who are likely to be the most responsive to those interests. To the extent that federalism constraints on national power have eroded over the course of the twentieth century, the Electoral College may in some ways have become even more important to the constitutional system than it was when the national government had fewer responsibilities. The more policies are made at the national level, the more important it is that national political officials are sensitive to local differences and concerns.
The structure of the Electoral College may also play a modest role in helping to preserve federalism constraints. The Supreme Court has occasionally attempted to enforce the federalism constraints imposed by the Constitution on national power, but the "political safeguards of federalism" historically have been more important if not completely reliable. The representative structure of the national government is built on the backs of the states. The presidency itself can be won only by waging numerous state campaigns. To win presidential electors, candidates must obtain popular majorities within individual states. To do so, they have relied on the local knowledge and resources of state party officials. The national political parties developed as federations of state political parties, which every four years are collectively mobilized for the sake of winning presidential elections. The Electoral College encourages presidential candidates to nurture local party connections, which serves the twin values of strengthening the political parties as organizations and preserving federalism. The ties that presidential candidates must, out of electoral necessity, develop with state and local political officials can make those candidates sensitive to the interests of local political institutions and officials as well as to those of state and local constituencies. By forcing presidential candidates to win elections one state at a time rather than one voter at a time, the Electoral College nurtures the development of relationships between presidents and state leaders, a political safeguard of federalism. To this extent, the Electoral College is a countervailing force against the prevailing modern trend of independent presidential campaigns run through the media by national political
The Electoral College does not affect whether presidential candidates construct national popular majorities. It affects how those majorities are constructed. It encourages candidates to build broad coalitions rather than deep but narrow coalitions. It encourages candidates to be responsive to the diverse interests of different parts of the nation rather than the particular interests of only the most populous or naturally supportive areas. It encourages them to build local relationships rather than rely on national affiliations. The effects of the Electoral College are more modest than overwhelming. It creates incentives, but it cannot force candidates to behave in particular ways. Those incentives also have different particular implications in different historical circumstances. If a single region of the country is small enough and isolated enough, candidates may still ignore it, as when the nineteenth-century Republican Party abandoned the solidly Democratic South. If some areas of the country have stable and overwhelming preferences for a single party, then presidential candidates may actively compete only for a smaller number of swing states, as the two parties did in the late nineteenth century. If partisan support is more evenly distributed, then candidates may be forced to compete more actively in most of the states, as is more true in the modern era. The incentives of the Electoral College run counter to the general tendencies of contemporary politics, with its emphasis on national opinion polls, media campaigns, candidatecentered elections, and plebiscitary government. Eliminating or substantially reforming the Electoral College may only strengthen features of contemporary politics that many already find troubling.
COMPARED WITH WHAT?
The contribution of the Electoral College to the American constitutional system can also be seen through a brief consideration of some of the alternatives to it. It should be noted that the Electoral College is not the only electoral approach possible for advancing the principle of concurrent majorities. Even at the time of the Founding and certainly now, many issues divide citizens within the states as much as they divide citizens between the states. Individual citizens may well feel more of a connection with their fellow partisans in other states than with some of their fellow citizens within a state, and geographic representation may not reflect those intrastate divisions. The principle of concurrent majorities could be used in support of an electoral system empowering a variety of potential political communities, including those formed on race, class, occupation, or the like. But such alternatives are in many ways less appealing and more rigid than the Electoral College's geographic approach and are certainly far less consistent
The most prominent alternative to the Electoral College system is simply the national popular vote. This alternative, of course, abandons the principle of concurrent majorities in favor of simple majoritarian democracy. In doing so, it eliminates any distinctive constitutional consideration from the selection of the president and simply recognizes the president as a national officer selected by a simple majority of the national populace. It reinforces and to some degree formalizes the development in twentiethcentury politics of regarding the president as the sole and direct representative of the national majority in the U.S. government.
The national popular vote highlights the contribution of the Electoral College to maintaining the two-party system. National popular vote proposals often include a provision for a runoff election if no candidate crosses some minimum threshold of popular support, sometimes set at 50 percent, sometimes at 40 percent. The runoff provision is obviously designed to ensure that the winning candidate in fact has the support of a large proportion of the population and again to prevent the possibility of a "wrong winner" as a multicandidate election fractures what might otherwise have been a majority coalition, as when the socialist Salvador Allende won the Chilean presidency in 1970 with less than 37 percent of the vote in a threeway race. Allende was later deposed in a coup. On its face, such a runoff provision seems like a mere safety measure, since no winning presidential candidate other than Abraham Lincoln in 1860 has polled less than 40 percent of the popular vote. But that assumes that elections are unaffected by the structure of the electoral system and thus that historic experience under the Electoral College can be readily extrapolated into a future under a national popular vote. Such an assumption is unwarranted. Electoral systems affect the incentives and strategic calculations of potential candidates, and campaigns and elections under such a proposed system could look quite different from current presidential campaigns.
Political systems with a presidency tend to encourage the formation of a two-party system. There is only one presidency. The office is winner-takeall. Losing candidates—and parties—are shut out and gain nothing. As a consequence, aspirants for the presidency are encouraged to form as large a coalition as possible before the election in order to ensure an electoral plurality. By contrast, the numerous seats in a legislature allows for the sharing of power by multiple parties. Even parties with relatively limited
In the context of a presidential system, however, electoral systems that provide for runoffs create incentives for more than two candidates to enter the race. An electoral system in which the candidate with the most votes wins (even if that is less than a majority of the votes) tends to drive out candidates and political parties that do not have a reasonable chance of securing a majority of the votes. Votes for someone other than one of the two most popular candidates are effectively wasted. Knowing that, voters are unlikely to waste their votes. Presidential aspirants with any prospects for a future political career are unlikely to want to damage those prospects by playing the spoiler in a single election. Political activists and donors will recognize the greater likelihood of having political influence working within an existing and stable political party than attempting to create a new one. The political parties that form under such rules will generally tend to produce centrist candidates capable of appealing to the middle of the electorate.
The possibility of a second ballot—a runoff—radically changes that calculation. Candidates and parties who cannot win on a first ballot may be able to win on the second, after the field of candidates has been narrowed. In a single-ballot system, there is only one path to victory: winning a plurality of the votes. A second-ballot system opens a second path to victory: forcing a runoff and winning a majority on the second ballot. Someone is guaranteed to win a majority of the votes on the second ballot, but the choice may well be between two narrowly focused or extremist candidates. Neither of the final candidates may have been capable of winning a singleballot contest, and yet they may be fully capable of securing a place on the second ballot. Centrist candidates, for example, may be outflanked in both directions on the first ballot and thereby fail to draw enough support to contest the runoff.
Formally, the Electoral College is a three-ballot majority-rule system. In practice, it has operated as a particularly strong single-ballot plurality system. Although the presidential electors cast a "second" ballot, they do not exercise independent choice in casting that ballot. Presidential candidates must win a majority of the electoral vote in order to avoid sending the
Abandoning the Electoral College for a national popular vote may have unintended, and undesired, consequences for the party system. Whereas the Electoral College discourages third-party candidates, a national popular vote with runoff provisions encourages them. This could encourage independent runs for the White House, for example by presidential aspirants disappointed in the party primaries or emboldened by the profile of existing candidates. The major parties would no longer be the only viable vehicle for a presidential candidate, and thus the costs to the individual candidate of defecting from the party will be lower. Over the longer term, political parties may develop to take advantage of the new electoral incentives. Although some parties may continue to pursue a broad-based effort to win a large plurality on the first ballot, some parties may instead opt for the runoff strategy. The effect would not only be to create more parties but also to create very differently structured parties with narrower constituencies. Such a system makes it more likely that presidents will be elected with
Ironically, the 2000 presidential election may highlight another advantage of the Electoral College over some alternative systems of presidential selection. The Electoral College tends to minimize the chances of a close election that may create election disputes, and when such disputes arise the Electoral College tends to contain them within a single state. A primary goal of any system of choosing political officials and managing the transitions of government power must be rapid and certain resolution. Unfortunately, every election runs the risk of uncertainty and disorder because every election is subject to disputes. Any close election is likely to be disputed since fraud, mistakes, or the intrinsic margin of error in the voting technology could alter the outcome. If the winning margin is small, measured as a percentage of the total votes, then it may be possible to reverse the initial outcome of the election through legal challenges.
The Electoral College minimizes the probability of such disputes arising in the first place because it minimizes the odds of a close election. The Electoral College tends to magnify the margin of victory for the winning candidate, making protracted disputes pointless because they are unlikely to affect the final results. In reality, every presidential election involves not one election but fifty-one elections, as votes are tallied in each state and the District of Columbia. Although the results in some states may be close and readily contestable, such individual results are unlikely to be pivotal. Close elections under the Electoral College are more likely to resemble New Mexico in 2000 than Florida in 2000—that is, irrelevant to determining who will be the next president. In order for a candidate to find it worthwhile to contest the results of an election, there must be a state that is both closely divided in the popular vote and pivotal to the electoral vote.
The Electoral College also tends to contain election disputes when they do arise. Because the relevant popular elections and tight margins occur at the state level under the Electoral College, election challenges will also be limited to the states. In many cases, challenges can be pursued at the state level without affecting the national electoral outcome at all. Such was the case in 1960 when the margin of victory in Hawaii between Richard Nixon and John F. Kennedy was less than two hundred votes and recounts dragged out the process. In the end, Hawaii was given the time to finish the recounts and the legal challenges because the results did not matter. Although at best Kennedy defeated Nixon by only one-fifth of 1 percent of the national popular vote, his electoral margin of eighty-four votes easily swamped Hawaii's three contested electoral votes. Such outcomes also minimize the incentives to engage in fraud. Because no one state or locality is likely to be pivotal to the overall outcome, vote fraud must be organized across several closely contested states in order to be effective in altering the results of the election under the Electoral College. The difficulty of successfully organizing such a conspiracy or of affecting the results through isolated action discourages anyone from tampering with the integrity of the presidential vote. If crucial election disputes are unavoidable, as when a single pivotal state is also closely divided, then the Electoral College at least contains the dispute to a single state, focusing resources and publicity on a single set of disputed ballots. Rather than encourage candidates and their supporters to search for, or invent, electoral irregularities across the nation, the Electoral College concentrates the dispute and makes an appropriate and timely resolution more likely.
The contributions of the Electoral College to the American constitutional system are modest. The Electoral College has smaller effects on the political system than do other features of the constitutional structure, such as the separation of powers or bicameralism and the structure of representation in Congress. It is consistent with the rest of the constitutional structure,
NOTES
The author thanks Christopher Eisgruber and Patrick Deneen for their helpful comments.
1. Useful overviews of the Electoral College include Lawrence D. Longley and Neal R. Peirce, The Electoral College Primer 2000 (New Haven: Yale University Press, 1999); Neal R. Peirce and Lawrence D. Longley, The People's President (New Haven: Yale University Press, 1981).
2. The Constitution bars federal officeholders from serving as presidential electors.
3. In rare and isolated instances after 1836, state legislatures outside of South Carolina have directly chosen presidential electors.
4. In 1877 Congress adopted procedures for resolving disputes over the counting of electoral ballots.
5. See Shlomo Slonim, "The Electoral College at Philadelphia: The Evolution of an Ad Hoc Congress for the Selection of a President," Journal of American History 73 (1986): 35.
6. This concern allied the slave states and the small states, as even the large slave states had a relatively small number of voters.
7. Allowing the House to choose the president from a large list of candidates and voting by state likewise balanced the interests of democratic representation and geographic diversity. Before the Twelfth Amendment, the House was to choose from the top five candidates.
22. POPULAR ELECTION OF THE PRESIDENT
WITHOUT A CONSTITUTIONAL AMENDMENT
Robert W. Bennett
In the wake of the 2000 presidential election, it is certain that there will be debate about whether a nationwide popular vote should be substituted for the Electoral College mechanism for choosing the president. But that debate may be stifled to a degree because of the widespread assumption that constitutional amendment is the only way to effect this change.[1] Amendment of the United States Constitution basically requires the agreement of two-thirds of each house of Congress and three-fourths of the states. For a variety of reasons, those hurdles are likely to prove insuperable, at least initially. But in fact a constitutional amendment may not be necessary. For it is entirely possible that just a few states—conceivably just one or two—could bring about de facto direct election. And if that were to occur, opposition to a constitutional amendment might just melt away.
Each state's Electoral College delegation is equal to its total representation in the House and Senate, with the District of Columbia given the state minimum of three Electoral College votes by the Twenty-third Amendment. It is usually assumed that this apportionment favors the less populous states by virtue of the two electors that each state receives on account of its senators. This assumption is, however, questionable. All states but two (Maine and Nebraska) have adopted a winner-take-all system for selecting their electors. In those forty-eight states, no matter how close the statewide popular vote among presidential candidates, the entire Electoral College delegation goes to the winner. A voter in a populous state thus helps to determine more Electoral College votes than a voter in a less populous state. The net result of the two-elector "bonus" for less populous states and the winner-take-all rule is that voters in the states with very large delegations cast a mathematically weightier vote than do those in other states.[2] And of even more significance is that, holding the size of the state's electorate
Despite the complications, a substantial number of states would lose electoral clout from a move to a nationwide popular vote. And because of the complications, many more might worry that they would lose some of their electoral say. There are, in addition, less noticed stumbling blocks on the way to an amendment that would provide for a nationwide popular vote. Such a straightforward move to direct election would pose the question of how eligibility to vote in that election is defined. The original constitutional scheme gave each state the power to set voter qualifications. That discretion is now greatly hemmed in by constitutional and statutory restrictions. States cannot discriminate with regard to the vote on the basis of race or sex or against those over seventeen. They cannot impose poll taxes or English literacy tests or onerous residence requirements. But states retain the formalities of control over voter qualifications, and a number have exercised that discretion, most notoriously to withhold the vote from classes of felons and ex-felons. The ex-felon disenfranchisement in particular is inexcusable, but any move to direct election would arouse opposition from those who do not see it that way and more generally from those who view state authority here as a principled and important part of the system.
Another eligibility question that would be hard to avoid in a straightforward move to direct popular election is that of U.S. citizens in the overseas territories. At the present time this population has no vote that counts in a presidential election. The bulk of these American citizens reside in Puerto Rico, and any move that might enfranchise them would no doubt attract partisan controversy. There is also a relatively small population of U.S. citizens ineligible to vote for president that resides permanently in foreign countries. If those foreign residents have a substantial prior attachment to a state, they are allowed to vote in that state in federal elections. This is accomplished by a federal statute that is, in this respect, of dubious constitutionality.[3] But those U.S. citizens who are foreign residents without prior attachment to a state are not eligible to vote in presidential (or other federal) elections. Their number is not large, and they seem less likely than the population of the territories to arouse partisan concerns, but the uncertainty they inject into a move to change presents another political obstacle to amendment.
For these various reasons, early adoption of direct election by constitutional amendment is very unlikely. But there is a simple way to skirt the necessity of amendment. Some lessons about how this might be done are provided by the history of senatorial elections.[4]
The Constitution originally provided for selection of U.S. senators by state legislatures—the same bodies still charged with determining the "manner" in which presidential electors are to be chosen. The Seventeenth
Some of the pressure built spontaneously. In the 1858 Illinois senatorial battle between Lincoln and Douglas, for instance, the two political parties had made their senatorial favorites known before the state legislative elections. The fabled statewide debates between the two took on their electoral significance as arguments for state legislative candidates who, once seated, would cast their votes for the one senatorial "candidate" or the other. As populism and the progressive movement gained steam toward the end of the century, a number of states then experimented with measures that would draw the electorate into the process in more formal ways. With Oregon often taking the lead, states experimented with nonbinding senatorial primary or even general elections and various forms of pressure on state legislators to accede to the popular choice.[5] By one estimate, the result was that by 1910—three years before adoption of the Seventeenth Amendment—fourteen of the thirty newly chosen senators had been the product of de facto popular election.[6]
Now what does this teach about the Electoral College? One of the many things that the nation learned about the Electoral College from the 2000 election is that state legislatures have "plenary" power in establishing the manner of appointment of electors.[7] I seriously doubt that this means that the Florida legislature could appropriately have preempted the electoral process that it had originally chosen. But I see no obstacle to a state legislature's providing beforehand that its Electoral College delegation would be pledged to the winner of the nationwide popular vote. If states with just 270 electoral votes adopted such an approach, the popular vote winner would perforce win the presidency. Under the Electoral College allocations that were produced by the 1990 census, a mere eleven states—those with the largest populations, of course—control 270 electoral votes. That number falls well below the three-fourths required for a constitutional amendment (to say nothing of the requirement of congressional approval).[8]
To be sure, those populous states might be reluctant. We have seen that arguably some of them have the most to lose. But de facto popular election could be accomplished by fewer than eleven states. If just California and Texas—the two states that starting with the next election will have the largest Electoral College delegations, and which have opposed party inclinations at the present time—would adopt such a rule, the chances of a disparity between the Electoral College and the popular vote would be pretty close to the vanishing point.
To begin with, California and Texas had eighty-six electoral votes between
Political dynamics would make it even less likely. At the present time, candidates employ "Electoral College" strategies, targeting states with sufficient Electoral College votes to win. They can do this basically without independent concern about the nationwide popular vote. With the suggested move by California and Texas, presidential candidates would be forced to radically alter that approach, devoting energy and resources to getting out the vote in all states. Deprived of the ability to single-mindedly pursue an Electoral College strategy they would be even less likely than they have been historically to secure an Electoral College win without winning the popular vote. There would still be a mathematical chance of their doing so, of course, but much less of a real-world chance.
Indeed it seems quite likely that even states less populous than California and Texas could turn the trick. For both substantive purposes and those of political acceptability, it would probably be important that the move be made by one or more states that are closely divided politically, or by some combination across the political divide. Adoption by the swing (and occasionally adventuresome) state of Wisconsin—with eleven electoral votes in the last election—would tilt the system decidedly toward popular election. Combinations of states across the political divide and with a larger total of electoral votes—Colorado and Oregon with a total of fifteen votes, for instance, or Missouri and Minnesota with twenty-one—would increase the odds even more.
There are a large number of variations on the theme. The initial states might move more cautiously at first, by tying their electoral votes to the nationwide popular vote only if a stated number of other states (or of states with a given number of electoral votes) followed suit. Or, as suggested to me by Dan Farber of the University of Minnesota Law School, a state could assign its electoral votes on the basis of the pooled popular vote from a group of states that adopted similar pooling laws. Too much inventiveness might, however, be the enemy of success. Adoption of a variety of devices by different states might weaken the chances of any one of them catching on. Still, if a few states took the plunge in one form or another, others might well follow, just as the movement for popular senatorial elections gained momentum over time. Opposition to a constitutional amendment could then quickly dissolve, just as it did back then.
This route to change would bring a degree of an advantage often cited
I do not mean to suggest that this would be easy to accomplish. There are important differences between the senatorial and presidential election contexts. State legislators were susceptible to popular agitation for popular involvement in senatorial selection, because they had to stand for election themselves. In the presidential elector context, in contrast, state legislators would be asked to institute a system by which the choice of their own voters would not be dispositive in directing the state's electors. It is hard to see why a state's voters would agitate in large numbers for such a move.
There are other problems. At the present time, there is relatively little pressure for states that go decisively for one candidate or another to get a precise count of the popular vote. A state that opted for a nationwide count would want some assurance that the count was accurate. The same problem would be posed by a constitutional amendment, of course, and related concerns have been advanced as reasons not to abandon the Electoral College. Balloting reform could do a lot to allay this concern, but federal legislation might be necessary to assure a degree of integrity for the nationwide popular vote totals.
Despite the problems, the nationwide popular vote mechanism is actually more enticing in some ways than was the insinuation of popular voting into senatorial selection. The action of one state in moving toward popular election of senators brought no leverage on other states, save as the example might persuade on the merits. In the presidential context, in contrast, a very few states have the capacity to dramatically tilt the entire system toward direct election. The appeal to reformist zeal could prove tempting.
None of this is to suggest that a move to a nationwide popular vote is obviously a good thing, even in theory. The complex American system serves ends other than straight-out "majoritarianism," whatever that might
NOTES
1. For just one example, albeit from the pen of one not deterred from the fight, see Ronald Dworkin's "A Badly Flawed Election," chap. 4, this volume.
2. See Lawrence D. Longley and Neal R. Peirce, The Electoral College Primer 2000 (New Haven: Yale University Press, 1999), 149–54 (based on the 1990 census apportionment of the Electoral College).
3. Uniformed and Overseas Citizens Absentee Voting Act, 42 U.S.C. § 1973ff–1 to 1973ff–6 (1994).
4. The story is related in David A. Strauss, "The Irrelevance of Constitutional Amendments," 114 Harv. L. Rev. 1457, 1496–99 (2001).
5. See George H. Haynes, The Election of Senators (New York: Henry Holt & Co., 1906), 133–48.
6. George H. Haynes, The Senate of the United States (Boston: Houghton Mifflin, 1938), 104 (citing Boston Herald of December 26, 1910).
7. The characterization comes from McPherson v. Blacker, 146 U.S. 1, 7, 10 (1892).
8. It seems likely that eleven states will still suffice to get up to the required majority under the apportionment to be dictated by the 2000 census.
9. There have been at most four instances in our history—two clear and two not so clear—where the outright winner in the Electoral College lost the popular vote. In 1888, Cleveland won the popular vote but lost in the electoral college by sixtyfive votes. The other clear case was in the disputed election of 1876, and the electoral vote margin there was one vote. The 2000 election is one of the unclear instances, and it too resulted in a razor-thin Electoral College margin. The final example was the 1960 election, in which it is impossible to know who won the popular vote, because the Alabama ballots listed only the electors and the political situation in Alabama makes it by no means clear how to ascribe votes for the various Democratic electors to Kennedy. Kennedy's margin in the Electoral College was eighty-four votes. See Longley and Peirce, supra note 1, at 46–59.