Scrap the Electoral System
by James Hall
It's long past time to do away with the electoral college set up in Article II of our Constitution and directly elect our president. Not only is the college an artifact of an eighteenth century distrust of popular democracy no longer acceptable, but it is a flawed artifact at that, containing serious loopholes that threaten the legitimate and orderly transition of the office of the president. The electoral college has failed us not once, but many times--in nearly every close presidential election in history. Once again this year the electoral college brought us to the doorstep of a constitutional crisis and strained our trust in the three branches of the federal government. For the good of the nation, let's end it now.
When speaking of the electoral college, forget any 'Founding Fathers in their infinite wisdom' argument. Plain and simple, the fathers screwed up our electoral system. They established, in Article II, section 1, an electoral college selected by state legislatures to elect our president because they didn't care for popular democratic politics and didn't trust in a popular vote for president. Their ideal of an electoral system was for propertied white male voters to select other propertied white males to serve as a legislature to elect yet other propertied white males to select a propertied white male to be the nation's leader. They didn't care to allow women, blacks, Indians, or white males without property to vote or participate in the process. It's unsurprising, therefore, that no one but white propertied aristocrats was elected president before Andrew Jackson's election in 1828.
If Americans really venerated Article II as the founding fathers' imperishable wisdom, we'd have all been outraged at Dick Cheney's midnight flight to Wyoming to change residency at the very beginning of the campaign, a violation of the fathers' intent that both President and Vice President not be inhabitants of the same state. It was plain that Cheney had lived, worked, and voted in Texas for at least the past six years, and therefore was an inhabitant of that state. But it's also clear that Americans have moved past the fathers' concerns about state privilege, about the popular election of electors and of representatives like Senators, and are poised to make that final step by popularly electing their chief executive free of partisan intermediaries.
No, Article II is far from being perfect, and over the past two centuries no less than eight amendments and several statutes have altered its procedures and effects, more amendments to an article of our Constitution than any other, a sure indication that generations of Americans have realized that the fathers got our electoral system wrong.
From the very beginning, the electoral college has been subject to the kind of partisan wrangling and dealmaking that could overcome the people's choice. In the election of 1800, which featured Democrat Thomas Jefferson running against Federalist John Adams, Jefferson won a close victory, largely because of the support of his vice presidential candidate Aaron Burr of New York. But when the time came for a vote, Jefferson and Burr tied with the same number of electors, (there being no separate election for vice president in Article II), so the election was thrown into the House of Representatives, where the Federalists Congressmen worked to block Jefferson's election. Only after six days and 36 ballots was a deal was finally made to end the standoff and elect Jefferson.
Realizing that their 'founding wisdom' didn't work, in 1804 Congress proposed and passed the Twelfth Amendment, which established separate elections for president and vice president. That wasn't enough, however, to prevent the next electoral college crisis, which occurred in 1824 when the electoral college divided between four candidates, including Andrew Jackson, John Quincy Adams and Henry Clay, again moving the election to Congress. ThoughJackson had won the popular vote and had the most electoral votes, Clay threw his support in Congress to Adams, who became president and made Clay his Secretary of State.
Partly as a result of the popular outcry over the manipulations of that election, by 1828 almost all state legislatures had passed legislation permitting the popular vote to choose electors, and Jackson returned to defeat Adams. But even this reform wasn't enough to prevent a different problem, which occurred in 1878's presidential election between Democrat Samuel Tilden and Republican Rutherford Hayes. Tilden won the national popular vote but fell one electoral vote short when four states sent slates of contested electoral votes to Washington. Again the election was thrown into the House of Representatives, which selected a commission that voted along partisan lines (8-7) to elect Republican Hayes.
That result that led to yet another change in electoral law, one that made resolution of a contested election a state process, instead of involving a partisan Congress. That statute, 3 U.S.C. sec. 5, set up the current provision that election contests resolved by the states before December 12--the so-called "safe harbor" date--couldn't be contested or changed by Congress.
Unfortunately, that statute simply set us up for partisan electoral problems at the state level instead of the congressional level. The nation now became hostage to the partisan affairs of one state's local election system. This we saw in the political maneuvering of Florida's partisan secretary of state, of partisan county canvassing boards, of law suits in local circuit courts and state supreme court, all of them subject to political manipulation, none of which would have mattered in the least had we elected a president by the national popular vote.
Because of the winner-take-all quality of most states' electoral process, the 2000 presidential election came down to a few hundred votes in a handful of precincts subject to partisan tampering. And though it happened in Florida, it could have happened in almost any state in the land. In fact, the same tampering was also alleged to have happened to Richard Nixon (in Chicago, Illinois) in his close defeat to John Kennedy in the 1960 election. Only a national election guarantees that a handful of votes in a few partisan precincts in one state won't mean the difference in any close presidential election.
And the electoral situation in Florida could have been far worse. What if the Florida Supreme Court and the Florida Legislature had sent different slates of electors to the state capital to vote on a President? This occurred not only in 1878, but in 1960 in Hawaii, when two slates of electors were sent to its capital to vote, one for Nixon (before a recount) and one for Kennedy (after the recount). With Kennedy far ahead in electoral votes, Nixon told his electors to stand down, but what if that race had been much closer electorally? Once again the presidential race would have thrown to a partisan Congress to decide.
Under the current electoral system, as the US Supreme Court reminded us in Bush v. Gore last month, state legislatures can still choose to pick the electors for president. So what if the Florida Legislature decided--as it nearly did--to take back its mandate and select the electors as given in Article II of the Constitution? Or if a different state legislature, like West Virginia's largely Democratic body, had decided to override the will of its voters (who carried the state for Bush) and select Al Gore's slate of electors instead?
Then, of course, there's the faithless elector scenario. How many of you held your breaths on December 19, waiting to see if three Republican electors would defect to Al Gore, making him president instead of George W. Bush? The concern that it could happen--and conservative anger at the suggestion by some Democrats that faithless electors be actively searched out--shows us yet another electoral loophole big enough to drive a Ryder truck through.
All these loopholes and potential constitutional flashpoints would be erased by a national election for president. There are those who argue that this would somehow diminish states' rights, particularly smaller states. But how is that? The current winner-take-all state strategy means that candidates court votes in states where the race is close, regardless of size, and largely ignore states they will definitely win or definitely lose. New York and Texas, the country's second-and third largest states, were shoe-ins for Gore and Bush respectively this year and were hardly visited by the candidates, while much smaller states like Iowa, Missouri, and Oregon were courted heavily by the candidates in the final days of the election because they were essentially toss-ups. Moreover, many of the small southern and mountain states solidly behind Bush were hardly visited by either candidate, while the small northeastern states going for Gore weren't on the candidates' travel agenda, either.
It would be different in a national contest. Without the requirement of a swing-state strategy, presidential candidates can conduct truly national campaigns and address the broadest of issues without spending a lot of time in repeated visits to close states. Moreover, opposing voters in states where one candidate leads by a large margin would now have an incentive to come out and vote for a national candidate. What a national campaign does diminish is state or local politics having a national impact. We don't have to worry about a Daley Machine delivering Illinois to a Kennedy, or a Katherine Harris delivering Florida to a Bush. We just count the national total of votes and forget the winner-take-all battles in individual states.
A national election creates other benefits. No longer would the networks have an incentive to rush to call states for one candidate or another. Network coverage would no longer be about coloring in a board of red and blue states, but instead about keeping a running national total of votes and commenting on the impact of state office races and local issues. Nor would people on the West Coast worry about who's winning early in the East. Without the luxury of projecting states and counting electoral votes, it will be much harder for networks to determine a presidential victor until much later on election evening--perhaps not until all the polls close. Yet another benefit would be to permit American citizens in residing in Puerto Rico, American Samoa, and elsewhere to vote for president without the necessity of a constitutional amendment assigning them electors.
The flawed electoral college system of Article II, already much modified, needs yet one more change, one that does away with electors altogether and substitutes the popular vote. Let each state and territory certify its total popular vote for president and have that vote counted and certified by the Congress of the United States on January 6. Set national standards for a presidential ballot and set aside national funds for high-quality voting equipment and the training and education of election workers and voters, and create standards for the counting and recounting of ballots. Create a process to fairly and quickly resolve contested state and local counts. Remove as many sources of local error, fraud, and partisan politics as possible by removing all electors, the decisions of local canvassing boards, judges, and legislators, and let the votes of the American people decide who their president will be.
© 2001 James Hall