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Don't Toss the Electoral College Baby Out With the Bathwater

November 10, 2000|CLYDE SPILLENGER | Clyde Spillenger is a law professor at UCLA

Not surprisingly, the outcome of the Bush-Gore vote tally has prompted calls for the reform or abolition of the electoral college. Such calls for reform are not new. Over the years, more constitutional amendments have been introduced in Congress for alteration or abolition of the electoral college than on any other subject. As in the past, the electoral college system has been excoriated as a "dinosaur," an "insult to democracy" and an "anachronism."

But much of what is said in criticism of the electoral college is inaccurate and fails to take account of the structural advantages offered by such a voting mechanism.

Two objections commonly are raised against the electoral college system. The first is the specter of "faithless electors." All but two states use a winner-take-all system in which a slate of electors, pledged to the candidate of the party by which they themselves have been selected, are expected to give their electoral votes to that candidate if he wins the popular vote in that state. The U.S. Constitution imposes no obligation on electors to keep their pledges. Some fear that in a close election, like this one, one or a handful of renegade electors could conceivably thwart the will of 100 million voters by abstaining or switching ranks.

The framers of the Constitution established this system not simply because they "didn't trust the people" or to protect Southern slavery, but because nationwide presidential elections raised serious difficulties in an age without political parties and without presidential campaigning. Without adequate information and without an institutional structure to sort out viable candidates, local voters might simply opt for "favorite sons," turning the national election into chaos. The framers hoped that the electors in the states would be the best-informed, most experienced political participants, who would rally around truly national candidates.

These considerations are irrelevant today; we live in a world of an entrenched two-party system and endless presidential campaigns. We don't need intermediaries to do our voting. Thus, the electoral college system might usefully be amended to eliminate the human factor and require simply that a state's electoral votes automatically be allocated to the winning candidate in a state without the intervention of electors.

The problem of "faithless electors," however troubling in the abstract, is basically hypothetical; electors are selected by the parties for their ironclad loyalty, and no national election has ever been influenced by a turncoat elector.

But surely there is something wrong with a system that permits election of a president who has lost in the overall popular vote. This is the objection to the system that is being voiced most loudly now, especially by supporters of Al Gore. But it is a more spurious objection.

It is true that, in the 212 years since adoption of the Constitution, the national presidential election has become a mainstay of the democratic tradition, with the president representing "all the people." Nevertheless, a strict majoritarianism has never been the only criterion in our constitutional structure. The electoral college system offers other benefits that may more than balance the risk of an occasional denial of the presidency to a candidate with a slight popular vote margin.

The electoral system requires a presidential candidate to seek support in a variety of regions in the country. Successful candidates must have a semblance of national support. Were the election strictly a national vote-getting contest, candidates might have the incentive to focus their attention on high-population areas where their efforts would have the most bang for the buck.

There is a more ambiguous consequence of the electoral system: More by coincidence than by design, the electoral college and the two-party system seem to be made for each other. Despite the notoriety of Ralph Nader's role in stymieing Gore in various states, the electoral college system limits the leverage of third-party candidates, who rarely can compete for electoral votes. In a national popular vote, Nader's threat to the major candidates would be more salient, and might have led to preelection concessions resulting in adoption of some of Nader's policies post-election. Even this is ambiguous: A large number of Nader votes came from those who thought their states were safe for Gore. Without the electoral system, those voters might have cast their ballots for Gore.

The point is that these structural consequences of the political system probably outweigh the risk of an occasional situation like this one, in which a candidate with a minute margin in the popular vote may nonetheless be denied election. Our constitutional system is studded with important, and basically wholesome, qualifications of sheer majoritarianism. The roles of the U.S. Senate and of judicial review in our republican form of government are only the best-known examples. Those who lament the frustration of the "one person, one vote" principle by this situation would do well to consider that other political realities--such as the vagaries of legislative apportionment--do far more to frustrate that principle than does the electoral college. The preoccupations of the moment do not justify a constitutional overhaul.

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