By Mark Rhoads
American voters tend to have a very short attention span. It seems as if every almost every four-year election cycle requires new educational lessons in how democracy works. Many voters will tune in only at the very last minute next year just days before the need to decide who will receive their vote for president and other major offices. Younger voters in particular will join millions of older voters in claiming they do not understand the reasons for the Electoral College. You will often hear people complain, “why can’t we just vote directly and the winner will be the person with the most votes.”
The Electoral College is a safety mechanism to protect our process from the uncertainty of a raw popular vote head count. There are many reasons why it should not be abolished but those reasons are rarely explained in an articulate way in the main stream news media. Or if the story is dealt with at all, it is most often dealt with in a superficial manner.
The Electoral College was created by Article I, Section II of the Constitution which states in part that “Each State shall appoint, in such manner as the Legislature thereof shall direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
So for starters the Electoral College may not be abolished just with a law, it would take an amendment to the Constitution adopted by a two-thirds majority in each House of Congress and then ratified by three-fourths of the states. It is hard to change the Constitution and it should be.
But when one evaluates the need for the Electoral College, try the following thought experiment. Suppose that there was no Electoral College in 2000 and the nation were to rely only on the popular vote count winner only to decide who was elected as president.
Former Vice President Al Gore won 50,999,897 popular votes for of 48.4 percent of all individual votes cast for president. Texas Gov. George W. Bush won 50,546,002 popular votes for 47.9 percent of the total vote. So 543,895 popular votes nationwide or only one half of one percent separated the totals of Gore and Bush out of 101,455, 899 votes cast.
But because the 25 Electoral Votes of Florida were decisive in awarding a 271 vote majority to Gov. Bush in the Electoral College, the Gore campaign under the management of Bill Daley raced teams of expert election-law attorneys to Florida to challenge the popular vote count only in that state where the Bush total was only 877 votes or one-tenth of one percent more than the Florida total for Gore. Bush received 2,912,790 votes in Florida to 2,912,253 for Gore. No election had ever been closer than that to decide the final outcome. It soon became apparent that the precision of electoral machinery was not sufficient to accurately measure the close marginal difference in a way that all parties could accept.
With the stakes as high as they get in U.S. politics, the Gore lawyers tried everything they could think of to alter the popular vote count in Florida so that Gore would be awarded the 25 Electoral votes instead of Bush. But after one month of extremely intense battles in many courts, the Bush tiny margin of 877 votes grew with later military absentee ballots and his margin stood up when the U.S. Supreme Court ruled on Dec. 8 that the Florida Supreme Court had created a problem that could not be fixed because the lower court had authorized inconsistent standards of re-counting votes in different counties that did not conform to the equal protection clause of the 14th Amendment. It also ruled that time had run out to certify Florida’s Electoral votes to The Clerk of the U.S. House. The Electoral College had served its constitutional function of final certification of a winner. It was not the only time in American history that a popular vote leader did not also win a majority in the Electoral College but it was an extremely rare result.
While there was talk of court challenges to vote totals in other close states, in the end the Gore team only contested results in Florida courts.
But suppose there had been no Electoral College. Instead of court battles limited to one state only, the challenges could have been made in multiple jurisdictions all over the country to determine if the decisive popular count margin of only one-half of one percent of the national total was accurate enough to maintain a decision in favor of Gore.
The Florida court battles took 30 days of intense legal maneuvers until the constitutional clock ran out and only 877 popular votes were under examination. But suppose that Bush, and not Gore, had decided to challenge a margin one-half million votes in all states and counties had been subject to re-examination. The legal process with hearings and appeals might not have finished before the end of the new president’s first year or later.
If the legal representation had been reversed and David Boies had been the attorney for Bush instead of Ted Olson, the courts might have been presented with a galaxy of novel legal theories. For example, did erroneous news reports from eastern-based TV networks that Gore had carried Florida and Virginia three hours before the polls closed on the west coast and one hour before the polls closed in the western panhandle of Florida unduly tip the scales to cause Bush voters to stay home and Gore voters to vote in heavier numbers in the west? Such a distortion in the popular vote in the west alone could have accounted for one-half of one percent of the national vote.
All these issues that could have arisen over many years of litigation were frozen in place and rendered moot by the finality of the Electoral College system. The system has been fine-tuned and tinkered with in some states over time to allow a proportionate allocation of electoral votes within a state to more closely mirror the popular vote outcome in that state. Other refinements in the Electoral College have been proposed to eliminate the possibility of the “faithless elector” problem when a member fails to vote for the candidate who carried his or her state.
But the flaws in the Electoral College do not in general justify the abolition of the system in favor of only a raw head count. If you think the 2000 Florida recount was a litigation and ballot-counting nightmare, then just try to imagine the alternative–a marathon of recounts and litigation in courts on a national stage in all jurisdictions.
Yes the Electoral College can allow for distortions in reflecting the popular will but so could a raw head count with no buffer. Only a few times in our history has a different candidate won the popular vote from the one who won the Electoral College. Two states, Maine and Nebraska, currently do not have a winner-take-all system of awarding their electoral votes. Only once has any person, Andrew Jackson in 1824, won both the popular vote and the Electoral College and still did not win the presidency because four candidates were so evenly matched that Jackson could not get an outright majority in the college. Then the House voted to elect John Quincy Adams and Jackson came back to win four years later in 1828.
So be careful what you wish for. If you want to see the Electoral College abolished and can convince two-thirds of both houses of Congress and three-fourths of the states to change the Constitution to adopt some new system, bear in mind that the Electoral College has worked well for most of American history and has only failed to work just a very few times when an election was either decided by the U.S. House, by a special commission in 1876, or by litigation in the highest state and national courts in 2000.
(Published originally in Illinois Review)