Even the best political systems cannot eliminate corruption, venality, and civil strife, but they are supposed to limit their sway. Enshrined in the U.S. Constitution, the American electoral system was designed to do that, yet the recent presidential election has revealed serious weaknesses in the way a president is chosen. The country appears to have escaped lasting damage--except perhaps to the reputation of the Supreme Court--but if these structural flaws are not addressed, we could face a much more profound political crisis in the coming decades.
Two assumptions that formed the basis of our original electoral system have become dangerously outdated: first, the need to provide small states with an incentive, through added electoral votes, to remain within the federal union; second, the need to check popular democracy with the power of disinterested elites. These assumptions informed the electoral college at its creation and the rules that have governed the choice of electors.
The electoral college was devised not only to reflect American federalism--the fact that the United States was a union of separately governed states--but also to give disproportionate power to small states: They could choose electors equal in number to their delegation in the House of Representatives, plus an added elector for each of their two senators. As a result, Delaware, which now has one-tenth of New Jersey's population, has one-fifth as many electors. This arrangement created the possibility that a presidential candidate could win the popular vote nationally but lose in the electoral college--which is exactly what happened this year.
The founders also sought to reduce the power of popular democracy through the electoral college. The American system of 1788 was modeled roughly on the British system: The House of Representatives, which was chosen by direct democracy (and limited franchise), was similar to the House of Commons; the Senate, which at the time was chosen by state legislatures, was similar to the House of Lords; and the president, who was chosen by electors selected by state legislators, was similar to the monarch. These presidential electors were supposed to be disinterested citizens--free from faction, interest, and party (indeed, political parties did not exist then)--who would choose one of their kind, a gentleman, for president. This unusual arrangement, Alexander Hamilton argued in the Federalist Papers, was supposed to prevent the "tumult and mischief" and "cabal, intrigue, and corruption" that could result from allowing the people to choose the president directly.
Over the last two centuries, both of these principles have become obsolete. The Civil War established the United States as a united nation and its chief executive as the representative of all the people. Before the war, "the United States" was a plural noun; afterward, a singular. The war also removed the practical possibility of states, dissatisfied with their representation, seceding from the union. Federalism itself had a continuing rationale. It allowed different regions and people to choose state legislators and congressional representatives who understood their special needs. But the federal system of electing presidents was no longer needed to keep the country together. On the contrary, it could as easily tear the country apart by encouraging regional political splits. Such a split did occur in 1876 and almost occurred in 1968, when George Wallace sought to throw the election into the House of Representatives by winning enough states in the Deep South to deny either Richard Nixon or Hubert Humphrey a majority in the electoral college.
Something else that made the elitist principles of the electoral college obsolete was the spread of popular democracy, which began early in the nineteenth century. Most states took advantage of what was, in effect, a loophole in the original provision that "each state shall appoint, in such manner as the legislature therefore may direct, a number of Electors" and adopted the popular election of their electors. The custom was assumed after the Civil War by the great 14th Amendment, which reduced proportional representation in Congress and the electoral college for any states that denied their citizens the right to vote "for choice of Electors for President and Vice President." But the Constitution itself remained ambiguous on the point. The provisions in Article II seem to permit states and state legislatures to set the rules and even to appoint electors on their own. The Supreme Court's recent decision affirms this.
This latter provision in the Constitution has periodically provided an opening for the "cabal, intrigue, and corruption" that it was supposed to prevent. Candidates have tried to pry loose electors. In 1968 an elector decided on his own to vote for George Wallace, and just recently both George W. Bush and Al Gore contemplated trying to woo fickle electors. Doing so would have amounted to an assault on popular democracy, but it would have been consistent with the Constitution. In this election, Florida's legislature threatened to appoint electors for Bush if a court-ordered recount showed that Gore had carried the state. (The Florida house of representatives even appointed its own pro-Bush slate, but after the U.S. Supreme Court ruled in Bush's favor, the Florida senate did not concur.) That step, too, would have undermined popular democracy but arguably would have been consistent with the Constitution.
In general, the existence of the electoral college and a federal system for selecting presidents has allowed and encouraged all the disturbing aspects of the conflict over who won Florida's electoral votes: a national presidential election resting on disputes over a state's arcane electoral laws, which in Florida vary from county to county; or on brazenly partisan intervention by minor state officials; or on suspect decisions by state courts and by the Supreme Court itself, which under our system should have been barred from intervening in a state's selection of its electors, but whose conservative majority invoked the 14th Amendment as a pretext for intervention.
Finally, in this age of niche marketing, the electoral college increasingly distorts the electoral process itself by encouraging candidates to focus on certain states to the exclusion of others, deluging them and their "swing voters" with advertising. Some small states worry that if the electoral college were eliminated they would be neglected by presidential candidates, but most of the swing states tend to be large ones rather than small ones (which are not worth the trouble). What would happen if the electoral college were eliminated is that presidential elections would become national events fought over network television. More of the contest would become like the debates--which are, for all their faults, the educational and philosophical high points of our presidential election campaigns.
Eliminating the electoral college and nationalizing presidential elections could promote the proper use of the 14th and 15th Amendments by guaranteeing that each citizen enjoys equal access to voting opportunities through uniform ballots and voting machinery, and the availability of polling places. As the Florida election showed, there can be wide disparities in access not only from state to state but from county to county within a state. Those most adversely affected by these disparities are minorities and the poor.
Without the electoral college, governors, representatives to Congress, and other officials would still be elected according to state election laws. States could still make their own decisions about public buildings and roads. Counties and cities could regulate their own schools. But when we chose our only national representatives--the president and vice president--we would do so across the country through a popular vote conducted under uniform rules and procedures. That would not eliminate all possibilities of tumult and mischief, but it could do what political systems are supposed to do: remove an important source of it.
Not one of these arguments is new. They have been made over the last century--from Herbert Croly's Progressive Democracy to Daniel Lazare's The Frozen Republic. There has also been considerable political support for abolishing the electoral college. In 1969, upon Nixon's urging, the House of Representatives approved a constitutional amendment to abolish it. But the system has been retained because the Constitution included safeguards against ever changing it--the requirement that three-fourths of all states (including some of the small states) approve a constitutional amendment.
Yet if there were ever a time to take this issue seriously, it is now. The recent election's deadlock could be the beginning of a period, similar to 1876 through 1892, of photo-finish elections. This time, the deadlock didn't devolve into a systemic crisis, because--in contrast to 1860, 1876, and 1968--there were no major policy issues, such as a war or racial segregation, that deeply divided the electorate and the candidates. But next time there could be. And if that were combined with a candidate who loses the popular vote but wins the electoral college through dubious court decisions and partisan decrees, then we could face the tumult that the founders feared.
If George W. Bush wants to unify the country behind his presidency, one thing he might do immediately is propose political reforms to reduce the disparities in ballot access that exist around the country. But what he could also do--perhaps in cooperation with Al Gore--is call for a commission that would address the deeper issues raised by existence of the electoral college. With the bipartisan support of Bush and Gore, Americans might be willing to contemplate what had previously seemed inconceivable: a major change in our constitutional method of electing presidents. ?
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