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State Legislatures Magazine: February 2001Editor's Note: This article appeared in the February 2001 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700. No Need to Repeal the Electoral College 1,028 Proposals to Change the System Choosing Presidential Electors--The District System vs. the At-large System Electoral College--The Role of the Legislature No Need to Repeal the Electoral CollegeBefore we wipe out the entire electoral college, there are some changes we can make to improve the entire election system. By Norman Ornstein The election controversy of 2000, the first of any major magnitude since 1876, has put the Electoral College right in front of Americans' faces, on their television screens and in daily conversations in barber shops, coffee houses, at office water coolers and the dinner table. Of course, if the Electoral College was civics trivia for most citizens, it has been a matter of great disagreement and concern to lawmakers and other opinion leaders since its inception. It was, after all, a compromise born of a struggle at the Constitutional Convention between small states and large states, or more accurately, between confederalists, who wanted to incorporate most of the Articles of Confederation, and those who wanted a large, national republic. As the late political theorist Martin Diamond has written, the confederalists wanted the president to be chosen directly by state legislatures. James Madison, James Wilson and Gouverneur Morris preferred a direct popular vote. That option was vehemently rejected by the confederalists. So Madison and his allies hit upon the Electoral College as a way to keep the states involved, but retain a role for the people. The state legislatures would choose electors, but they would be guided by the popular vote. Their compromise did not stop the controversy. Actually, nothing has. The EC was changed early on (in 1804) via the 12th Amendment to the Constitution, creating separate votes by electors for president and vice president to avoid the problem of a president elected from one party and a vice president from the other. (Until then, the candidate with the most electoral votes became president and the runner up became vice president). The EC was changed again via legislation in states in the 19th century, as they responded to the democracy movement and went to having the electors selected via direct popular vote within the states (almost always on a winner-take-all basis). 1,028 PROPOSALS TO CHANGE THE SYSTEM Since 1969, there have been at least 113 reform proposals introduced in Congress-with many more certain to come next year. Most of the proposals call directly for abolition of the EC, and its replacement by direct popular vote. Others call for retaining the EC, but mandating that states divide their electoral votes by congressional district (as is now done voluntarily in Nebraska and Maine), or by proportion of popular votes cast in each state. A small number call simply for the elimination of electors-the real-live, flesh-and-blood people who go to their state capitols in mid-December to cast the electoral votes-and their replacement by an automatic system. WHY REFORM? Another reason is the trend to nationalization of politics in America-the sense that an emphasis on states is archaic for a modern national government. A third reason is the fear of an election outcome that would be viewed as illegitimate-especially one where a presidential candidate wins a majority of the national popular vote but still loses the presidency to a candidate who prevails in the Electoral College. America has certainly had its electoral crises related to the Electoral College: in 1800, when an EC tie between Thomas Jefferson and Aaron Burr required the House to select the president, taking 36 ballots and ending up with Jefferson winning and his foe Burr serving as vice president; in 1824, when a four-way race left no candidate with a majority of electoral votes, and House maneuvering made John Quincy Adams, who led neither in popular nor electoral votes, the winner; in 1876, when disputed electoral slates in three states (including Florida) had to be sorted out by an electoral commission. In addition, in 1888, we had the dreaded result of a president (Grover Cleveland) elected without a popular vote majority or plurality (albeit with little evident national controversy or disagreement.) But three (or four) crises out of more than 50 presidential elections is remarkably small. And the drive for reform, based on the actual crises or the threat of another precipitated by the Electoral College, tends to ignore the crises that could be generated by direct national popular vote for the president. The calls for reform accelerated with the 2000 presidential vote count, which started as a bad dream and ended up as a recurring nightmare-kind of like the movies Groundhog Day and Friday the 13th combined. The subsequent calls for repeal of the Electoral College were led by Senator-elect Hillary Rodham Clinton. IRON LAW OF UNINTENDED CONSEQUENCES For one thing, we would have had no quick and clean resolution of the election. On the morning after the election, Al Gore led George W. Bush by around 200,000 votes, or about 0.2 percent. That on the surface might seem substantial enough. But there were approximately 3 million absentee and vote-by-mail ballots yet to be counted, including well over 1 million in California, and several hundred thousand each in Oregon and Washington. It took more than three full weeks for all those absentee and vote-by-mail ballots to be tallied, with doubt remaining over the final leader for nearly all that period. The almost-final difference between the candidates was 333,576 votes, roughly 0.3 percent. That is well below the number that triggers an automatic recount in Florida and many other states (some use 0.5 percent, some 0.33 percent, and so on.) Can anyone doubt that a hard-fought presidential campaign ending with a cloud over the counts in a number of counties and precincts around the country would call for a recount? But that would not be a recount like Florida-confined to 67 counties, each with its own clear-cut partisan power structure and administration. Instead we would have a nationwide recount, taking place in thousands of election units, some counties, some cities, some precincts, depending on individual states. All the ballot boxes in the country would have to be impounded. Instead of the squadron of lawyers who have descended on Florida to oversee, sue and kibitz about the recounts, we would have armies of lawyers, exceeding the troops massed for the D-Day invasion, fanning out across the country to argue, bicker and litigate. This horrific nightmare would not likely be a one-time thing if the Electoral College were abolished. There has been a sharp trend in the country toward absentee ballots and vote-by-mail. The parties have encouraged it, because it is easier and cheaper to get out the vote by targeting voters and getting commitments in advance, fulfilled just by filling out a ballot and mailing it in. The states have moved in that direction because it can increase turnout and reduce their costs of keeping polling places open and filled with workers. California has up to a third of its voters going absentee, Washington about 60 percent, and Oregon went to a total vote-by-mail system this time. In 1996, the Census Bureau calculated that 20 percent of voters nationwide voted absentee; the number from this election will approach 30 percent. PROBLEMS WITH ABSENTEES Imagine if a 15-round heavyweight championship fight had the judges vote on a winner after the 12th round. The staggered voting has sharply increased the costs of campaigning, and has actually increased the amount of negative campaign advertising; instead of saving their firepower until the final two weeks, when most voters begin to pay attention, candidates and parties in heavy absentee states have been forced to advertise much sooner for the early voters, and then spend more to target the later ones. More significant for the purposes of evaluating the Electoral College, absentee votes and vote-by-mail have other important characteristics: one, they are more laborious to count-envelopes have to be opened individually, signatures checked, ballots certified and searches done to be sure citizens vote only once, and counts taken. Oregon's self-vaunted all vote-by-mail system was a national embarrassment; the state only included ballots that arrived by the close-of-business Election Day, but it couldn't come up with any counts for days thereafter. Of course, in most states, a large share of the absentee ballots don't arrive by Election Day. Many states are like Florida, allowing 10 days after an election for overseas and other ballots postmarked by Election Day to come in and be counted. In Washington, any ballot postmarked Election Day is counted no matter when it arrives, adding to potential delays. So brace yourselves: Eliminate the Electoral College, and it will be a rare presidential election where we know the outcome even a week after! Proponents of the repeal of the Electoral College might argue that this scenario is not a great brief in favor of it. If both the EC and direct popular vote have even equal potential built in for nightmares, why not opt for the more directly democratic process? The answer is that there are many other powerful arguments in favor of the Electoral College. The EC tends to produce larger and more decisive margins for wins when the popular vote is very close, leading to a more definitive judgment of victory, and giving presidents some greater sense of legitimacy and mandate-a necessity in a system of checks and balances where a president relies heavily on intangibles like credibility. John F. Kennedy's 1960 popular vote margin over Richard Nixon was 118,000 votes, or just over 0.1 percent, one vote per precinct. But Kennedy won 303 electoral votes, 56 percent of them, a cushion large enough to discourage a challenge from Nixon and enough to give him some running room as president. This factor is even more important when there is a three-way race for president and the winner ends up well below 50 percent of the popular vote. In 1968, with George Wallace running as an independent, Richard Nixon received only 43.4 percent of the popular vote, a precarious margin overall and with only a slender popular advantage over Democrat Hubert Humphrey. But even though Wallace siphoned off 46 electoral votes that year, Nixon still received 301 electoral votes, 31 over the majority necessary, 120 more than Humphrey and enough to give him some sense of mandate in a difficult, divisive and bitter year. In 1992, with H. Ross Perot running as an independent, Bill Clinton received just over 43 percent of the popular votes-but won with a near-landslide 370 electoral votes, 69 percent of the total. CLOUT FOR SMALL STATES Large states, partly because they have all retained their winner-take-all electoral vote formula, have remained important, although the importance of one-party dominant large states would clearly increase with direct popular vote (hence Senator-elect Clinton's position.) But smaller states have clearly greater importance than they would have without the EC; indeed, in most elections, small states would be largely irrelevant without their electoral votes as lures. Because of the obvious clout the EC gives to small states, the chances of Electoral College repeal remain small. They are smaller yet because of the public reaction to the November (or should we say December) 2000 results-the clear prospect after this election that a George W. Bush presidency would come with Al Gore having won the national popular vote caused not the slightest hint of public outrage. So what will happen-and what should happen-in the aftermath of this election? One constitutional amendment would make some sense: the elimination of electors themselves and their replacement with automatic votes. Any concept of electors as actual deliberators disappeared in the early 19th century. Even though real examples of "faithless" electors are rare, the prospect is always there of rogue or faithless electors changing their votes, reneging on their pledges or being swayed by inducements, and especially with a very close election. It also makes sense to remind states that they do not need a constitutional amendment to change the distribution of their electoral votes, perhaps joining Maine and Nebraska and dividing them by congressional district. In small one-party states, especially, this can give them more clout by dangling for the opposite party the prospect of winning one or two electoral votes out of the four or five because of a congressional district or two with different political leanings than the overall state. (In large states, on the other hand, division by congressional district could dilute their power and add to the confusion and close results in a tight election.) Remember too, that if large states like California allocated their electors by congressional district, it would create opportunities for more third and fourth party candidates like Ralph Nader to run for president, pick off a handful of districts (and electors), and perhaps throw the election into the House of Representatives. But there is more that should happen now than direct reform or change in the Electoral College itself. This November, Americans learned as vividly as one can imagine that in our elections, every vote counts. Unfortunately, they have also learned, just as vividly, that not every vote is counted-not even close. For all except a handful of election aficionados, the messy, sloppy, underfunded, undermanned, sometimes incompetent and occasionally corrupt administration of our elections, in a process more decentralized than any area other than garbage collection, has come as a shock. ELECTION REFORM The first step to reform is more money. And the money-probably $250 million, a small sum in the context of a nearly $2 trillion federal budget, but huge for local officials-becomes the key to substantive reform. States should consider their own reform programs, providing grants to election districts. And Congress should pass a bill providing the money in the form of matching grants (like the Highway Trust Fund, with a 90 percent to 10 percent ratio) to localities that agree to implement the following substantive reforms:
The Electoral College will always remain controversial. The controversy may grow in the Information Age, with individual empowerment and the drive for direct democracy ascendant. But this "archaic" device is not anti-democratic-any more than a World Series that picks a winner by best-of-seven games, instead of by the overall number of runs scored, is wrong or illegitimate. As the data and arguments above suggest, the EC has legs-it continues to provide major benefits to American democracy. We need reform, and we need it now-in election administration and campaign finance. We do not need repeal of the Electoral College. Norman Ornstein is a resident scholar at the American Enterprise Institute for Public Policy Research in Washington, D.C. Reforming the Electoral CollegeNebraska was the last state to reform its process for selecting presidential electors with its switch to the district system in 1991. Ways in which the states could choose to reform the system include:
-Jennie Drage, NCSL Choosing Presidential Electors
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