The reelection of the forty-third president of the United States took place not on November 2, 2004, when some 120 million Americans cast their ballots, but on December 13, 2004, when 538 members of the Electoral College officially met pursuant to article II, section 1 of the U.S. Constitution.
This quadrennial event has not been emulated by any other democracy in the world. One American observer, Robert Pastor, director of the Center for Democracy and Election Management, who previously helped organize election observation missions to about thirty countries, recently commented that “[t]he Electoral College was a progressive innovation in the 18th Century; today, it’s mainly dictatorships like Communist China that use an indirect system to choose their highest leader.” Robert Pastor, America Observed, THE AMERICAN PROSPECT ONLINE, at www.prospect.org/web/index.ww (Dec. 20, 2004).
Electoral College Supporters Then and Now
There is another interpretation of the genesis of the Electoral College that is even less kind in explaining its inclusion in the Constitution: that the Electoral College grew out of the last-ditch efforts of the “states righters” of 1787 to preserve as much of the Articles of Confederation as possible. This group was intent on denying direct popular election of the president and preserving the power of the states. Just as they succeeded in a provision allowing state legislatures to elect the members of the Senate, they wanted the primary power to elect a president to be lodged in the states—not in a mass electorate comprised of individual voters. James Madison, James Wilson, and Gouveneur Morris preferred a vote by the people but fell back on the compromise of an Electoral College to appease the die-hard defenders of the Articles of Confederation and their exaltation of each state’s right to be its own principal governing force.
The original design of the Electoral College was based on the notion that electors would be faithful agents of the people who were “men superior, discernment, virtue and information” and who acted “according to their own will.” GEORGE C. EDWARDS III, WHY THE ELECTORAL COLLEGE IS BAD FOR AMERICA 19 (2004). Fifty years later, Justice Joseph Bradley of the U.S. Supreme Court and a member of the 1877 Electoral Commission established to settle the disputed Hayes-Tilden Election of 1876, said, “Electors
were mere instruments of party—party puppets—who are to carry out a function that an automaton without volition or intelligence might as well perform.” Id. Another commentator of the same period, Senator John J. Ingalls of Kansas, opined that “electors are like the marionettes in a Punch and Judy show.”
Why has this anachronistic system, despite its demonstrable inability to survive even a test of rationality let alone fulfill the noble aspirations of the Framers, survived? Why has the U.S. Supreme Court ignored the clear evidence that the original purpose of the college has not only been subverted by faithless electors but that the whole scheme is flawed and demeans the right of individual voters to be treated equally?
In McPherson v. Blacker, 146 U.S. 1 (1892), relied on heavily by the Court in Bush v. Gore, 531 U.S. 98 (2000), the Supreme Court still insisted that the Framers expected that electors would exercise discretion in selecting a president. Even today, in their Bush v. Gore concurrence, Chief Justice Rehnquist and Justices Scalia and Thomas added that their inquiry did “not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures.” Id. at 104. This obduracy in clinging to an outmoded, discredited system, whose foundation has been completely eroded by the sweeping changes in every facet of the American polity, is astonishing.
I believe that the primary reason for maintaining the Electoral College may be the argument that direct popular election would be a cancer on the federal system. One persistent, indeed ardent, defender of this archaic method of presidential selection is Judith Best, who insists direct popular election would “deform our Constitution and constitute a serious implicit attack on the federal principle.” JUDITH BEST, A CHOICE OF THE PEOPLE: DEBATING THE ELECTORAL COLLEGE 55 (1996).
Along with many other political observers, I have been mystified, if not confounded, by the fact that the 2000 presidential election failed to energize a strong effort to abolish the Electoral College. The voices for reform and the adoption of direct popular election have been muted. Rather, Ms. Best has been joined by Electoral College proponents like Norman Ornstein of the American Enterprise Institute, who wrote that “three (or four) crises out of more than fifty presidential elections is remarkably small.” Norman Ornstein, No Need to Repeal the Electoral College, www.ncsl.org/programs/pubs/201elec.htm. He continued: “Heaven forbid a direct vote and the ‘horrific nightmare’ of a possible nation-wide recount in a close contest, especially with lots of late-arriving absentee votes.” Id.
At this point, one wonders if the nation’s thirty-six-day wait for the announcement of the president-elect and the Supreme Court’s five-to-four majority in the case was not in fact a “horrific nightmare.” I believe that the occupant of the nation’s highest office should be determined by legally registered voters—not 538 faceless, nameless electors—not even if their role is decreed by five members of the U.S. Supreme Court.
The most recent history of any substantial opposition to this outmoded mechanism goes back to my own days in the U.S. House of Representatives, where from 1961–1980, I represented the 16th Congressional District of Illinois. In 1969, by a vote of 338 to 10, far more than the necessary two-thirds, representatives supported a constitutional amendment that would have provided for direct election. It was, of course, defeated in the Senate, where it fell prey to a filibuster made up largely of senators from southern states, aided and abetted by conservatives from small states. The members of this camp offered arguments that were largely based on the notion that in a system of direct election they would in some way—never explained—find their own roles diminished and the needs of their states correspondingly ignored.
Another attempt a decade later failed when even liberal senators fell away from the cause on the ground that it would be harmful to certain minority groups that they represented. At about the same time, the Twentieth Century Fund Task Force on Reform conceived a “national bonus plan.” It would have added a bonus of 102 electoral votes—two for each state plus the District of Columbia—to be awarded the winner of the popular vote. Obviously, this would ensure the election of the candidate favored by the people. This idea has not won over those wedded to the concept of an Electoral College as presently constituted, however.
Other proposals have sought to move to direct election without going through the torturous amendment process. One was offered by Professors Akhil Amar and Vilram Amar, who point out that the Electoral College, as now configured, neither helps small states, ensures states’ rights, or protects the concept of federalism. See AFTER THE PEOPLE VOTE: A GUIDE TO THE ELECTORAL COLLEGE 55 (Walter Berns ed. 3d ed. 2004). Indeed, electing a president by a popular vote would provide state governments incentives to improve our democracy by finding ways to increase the size of the vote. The Amars would, it should be pointed out, favor instant runoff voting as the optimum method for conducting the direct popular vote. The rank ordering of candidates on the ballot could ensure that, with instant runoff voting, it would be possible in one and the same election to conduct the count in a manner to ensure a true majority winner. This would solve the “spoiler problem” that today confronts any candidate who chooses to run outside the present majority party duopoly.
Our elections, as they are now held, have divided rather than united the country. Battleground states are the focus of both the candidates and the media. In the 2004 campaign, to cite only one example, President Bush bothered to poll in only eighteen states. More importantly, most registration drives were focused on battleground states. Is it healthy for the democratic process to see the number of competitive states decreasing? Indeed, if federalism is a principal argument for some last-ditch advocates on the Electoral College in a country where an overwhelming majority of Americans favor direct election but feel increasingly ignored, it is the defenders of the status quo who should feel challenged?
Our current method of electing presidents is conducive to the twin evils of fraud and blatantly partisan election administration. Election 2004 witnessed a win by the president of approximately 119,000 votes in Ohio. Narrow margins provide an incentive for fraud and the construction of rules and regulations that promote political advantage over voters’ rights.
Finally, the present system actually increases a likelihood of ties in the Electoral College. A shift of about 21,000 votes in Iowa, Nevada, and New Mexico could have thrown the election into a 269–269 electoral vote tie, which is certainly a possibility in the future as well. Once the election goes to the House of Representatives, where each state has a single vote, the likelihood of extreme partisanship and deal making, which can trump the collective will of the people that has manifested itself in the popular vote, becomes very real.
The need for constitutional change is upon us, and the task is a difficult one. The dimensions of the problem are well defined in an article by Richard H. Pildes:
-[But] democratic institutional designers rarely consider or build in the capacity for representative institutions to be readily redesigned as circumstances change. The static considerations of power and vulnerability at the moment of formation overwhelm any capacity to create ready mechanisms for later institutional self-revision. To make matters worse, one of the iron laws of democratic institutions is that institutional structures once created become refractory to change.
The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 29, 84.
As specific examples in our U.S. Constitution, Pildes goes on to cite the provisions for both the Senate and the Electoral College, and the fact that the representational basis for both is skewed. In the Senate, approximately 500,000 Wyoming citizens have the same voting power as thirty-four million Californians. Pildes goes on to specifically argue that the Electoral College, with its bonus of two electoral votes for each state regardless of size, illustrates a larger design defect: the Constitution’s failure to include any ready capacity to modify the Electoral College structure over time through national political processes, particularly in light of the material disincentives for individual states to change their own allocation rules for electors.
Notwithstanding this more than somewhat somber assessment of the built-in resistance to constitutional change, I am encouraged by the currency of the concept of an “Age of Democracy.” If we are indeed being commissioned to spread democracy around the world, we must, in Socratic fashion, know ourselves. We are compelled to look within and to strive to become the exemplar of that which we are seeking to export. Direct democracy should exist at home within the borders of the American republic. It must replace an electoral system chained to the past and its fear of giving the people themselves the ability to choose an American president.