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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