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SPECIAL REPORT / Decision 2000 / AMERICA WAITS

Electoral College's Critics Have Exhibit A

Government: System is called outdated and a danger to democracy. Proposal to provide for direct election is likely to pick up steam.

November 09, 2000|DAVID G. SAVAGE | TIMES STAFF WRITER

WASHINGTON — The likelihood of a split result in Tuesday's election has renewed calls to scrap the electoral college, the 18th century system that allows state party officials, rather than the nation's voters, to decide who becomes president.

It is a "dinosaur that should be retired to a museum," said Sen. Richard J. Durbin (D-Ill.). He has proposed amending the Constitution and providing for the direct popular election of the president.

His proposal is likely to get serious attention in the year ahead, now that a modern-day candidate stands to lose the presidency despite winning the most votes.

If Texas Gov. George W. Bush prevails in Florida, he will have the necessary 270 electoral votes to win the presidency, even though Gore has a popular-vote margin of slightly less than 200,000.

Nonetheless, the vice president and his top aides said that they would readily abide by the electoral college outcome.

"It is the winner of the electoral college who will be our next president," Gore said in Nashville. "Our Constitution . . . must be followed faithfully."

If Bush's slim Florida edge holds, the Texas governor will be in a position to declare himself the winner.

It is then up to the 538 electors. They are chosen by state parties. Some are elected officials. Others are loyal party activists.

On Dec. 18, the electors will assemble in state capitals, and in all but two states the law calls for the winner of the popular vote to win all electors' votes.

Their ballots in turn are forwarded to the president of the U.S. Senate--who happens to be Gore--who will certify them Jan. 6.

Since 1948, however, there have been seven so-called "faithless electors" who have broken their commitment to a party candidate, usually to make a political statement or promote a cause.

Margarette Leach was one such maverick. In 1988, Leach, a nurse in Huntington, W.Va., became the most recent member of the electoral college to break her commitment to her party's candidate.

Chosen by the state Democratic Party as an elector for presidential candidate Michael S. Dukakis, who carried only a handful of states against George Bush, Leach decided to make a symbolic protest for electoral college reform. Instead of putting Dukakis at the top of the ticket, she placed instead Democratic vice presidential candidate Lloyd Bentsen.

Leach, elected Tuesday to a fourth term in the West Virginia House of Delegates, said that she wanted to demonstrate the potential dangers of an institution in which most of the electoral college members are not legally bound to vote for the winning candidate on their state party slate.

"I don't think many people are aware what a dangerous way this is to elect a president," Leach, 73, said in a telephone interview from her West Virginia home.

Legal experts, however, disagree on the issue of an elector's legal obligation to vote for their party's nominee. Half the states, including California, have laws requiring electors to vote for the state's winner.

But the Constitution has no such requirement. Indeed, some legal experts said that it was understood that electors are free to make their own decisions.

"The Constitution did not intend them to be potted plants," said Yale University law professor Akhil Amar. "It is permissible for them to decide they will follow the nation's will rather than their state's majority. It is possible to imagine three of 271 electors deciding this is not quite right and switching their votes. But that is also unlikely. They are chosen for their political loyalty."

American University professor James Thurber said "theoretically, it could happen" that one or more Republican electors could vote for Gore. "There is no absolute requirement to vote with your party."

But there is strong tradition, as well as individual loyalty, that tends to influence electors to vote with their states and their parties.

Gore campaign manager Bill Daley said that he expects electors to follow the long tradition. "Obviously, I think there is a presumption" the electors will vote with their states. "The vast majority of them are legally bound, and I would assume, if you're legally bound, you believe you are morally bound."

Still, many academic critics said that the electoral college is archaic and should be abolished.

In 1787, the framers of the Constitution were unwilling to let ordinary people choose the president.

"They didn't trust the people," said Vanderbilt University law professor Suzanna Sherry. "They want a filtered democracy. The people would elect prominent citizens who would actually deliberate and choose the president."

Amar, the Yale law professor, said that the electoral college has a more sordid history. "It was intended to prop up the slavery system in the South. In a direct election, the North would overwhelm the South."

By counting slaves as three-fifths of a person, the Southern states, notably Virginia, dominated the presidency.

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