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Amar sounds off on Electoral College, results

Yale Herald
Alex Hemmer

Akhil Amar is the Southmayd Professor of Law at the Yale Law School. He is regarded by many as the world's leading authority on the Bill of Rights, and is the author of, most recently, Processes of Constitutional Decision Making. He teaches an undergraduate course in Constitutional Law.

The Herald sat down with Amar on Wednesday morning, only hours before Senator John Kerry, JE '66, conceded the presidential election to President George W. Bush, DC '68, to talk about the still-uncertain results of the election and the Electoral College as an institution.

 

Yale Herald: First of all, what were your initial reactions from last night's election?

Akhil Amar: Well, there were several striking features. Perhaps most importantly, this is really the first time in more than a century that we've had two back-to-back close presidential elections. You have to go back, I think, to the 1880s to find the last occasion in which two successive presidential elections were cliffhangers. Your generation is moving through very interesting times indeed.

 

YH: Three years ago, you wrote a series of articles recommending that the United States do away with the Electoral College. Why do you think the College should be abolished?

AA: The biggest criticism I have is that it fails to do justice to the basic principle of "one person, one vote." That's a principle that applies when we pick governors within a given state; we add up all the votes, and the person with the most votes wins. And that's good enough even for big states like California that have a lot of people and a lot of territory, and it's the rule in Texas when they pick their governor and in every other state. It seems that that would be the most sensible way, the most truly democratic way, to pick a president. It's a basic idea—one person, one vote.

And the Electoral College also has some glitches. It creates some rather perverse incentives or fails to create maximally-attractive incentives. Let's take the issue of whether states make it easy for people to vote, whether they have long lines or short lines, whether they have very few or lots of precints, whether they have easy registration processes or cumbersome ones. The Electoral College does not give any state a particular incentive to make voting easy. Ohio gets the same 20 electoral votes whether a few Ohioans vote or a lot of Ohioans vote.

Now think about national elections. In a direct national election system, the more voters that turn out in Ohio or any other state, the more Ohio or that other state is playing a part in the national vote count. The more voters that show up, the more your clout. That would create, in my view, some good incentives for states and localities, subject to federal oversight—and federal oversight is very important to make it easier for people to vote. Some states might create state holidays, for example; others might require that employers give wage-earners time-off to vote. We would still have federalism; we would still have states in operation. They might innovate, and we could see which innovations were good, which kind of voting technologies were maximally effective. A national vote, subject to national oversight, would create better incentives for democratization and participation than the Electoral College.

Let me tell you a story about how we got the Electoral College. Historically, it was designed in part to accommodate—to facilitate—-limited enfranchisement. The South, two hundred years ago, did not let large portions of its population vote. They were enslaved, but they were counted as part of the Electoral College system, with a three-fifths formula. Because of this, 200 years ago Virginia had fewer voters and fewer free citizens than Pennsylvania, but more electoral votes. And that created perverse incentives: the more slaves that Virginia bought, or bred, the more clout it had in the electoral process, and that was somewhat perverse. If a state 200 years ago enfranchised its women, it wouldn't get any more electoral votes. But in a direct elections system, if you enfranchise people, you get more clout.

So the Electoral College system has some tainted roots; it is inconsistent with the idea of "one person, one vote;" it's inconsistent with the way we pick governors; it has some unattractive incentive features; and I don't see any strong compensating advantages.

 

YH: Do you think Electoral College reform is likely or possible in the next four years?

AA: The constitution is very hard to amend, so it's unlikely at any given time that we'd see an amendment. I might think that over the course of a generation, if people, if your generation were actually taught the true story of the Electoral College—that it was actually much less about big states versus small states than you were told in third grade, that it was much more about hostility towards democracy in general than you were taught in third grade, that it was much more about slavery than you were taught in third grade—and I think if we had that education process, it might be more imaginable for your generation to begin to think about changing the system.  

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