The Electoral
College Votes Against Equality
Vikram David Amar & Akhil Reed Amar
Commentary LA Times
September 8, 2004
While the United States tries to persuade the
Arab world to embrace democracy, ethnic equality and women's rights,
at home we're set to pick a chief executive via an electoral college
system that was designed in part to cater to slavery and to
accommodate the disfranchisement of women.
As we all were reminded in 2000, the
presidential candidate with the most popular votes nationwide does
not necessarily win. Instead, the Constitution allots to each state
a certain number of electoral votes based on population.
Conventional wisdom holds that this system was originally aimed at
giving smaller states a boost: Every state, no matter how tiny its
population, would get at least three electoral votes. But, in fact,
every one of the early presidents came from a populous state, and
over the course of two centuries only three presidents have come
from low-population states: Taylor, Pierce and Clinton.
In a system in which each state awards
electoral votes on a winner-take-all basis, large states loom, well,
large. So do swing states, where each side focuses its campaign
because it has a realistic chance to win a statewide majority and
thus the state's entire electoral bloc.
If helping small states does not really explain
the electoral college, what does?
At the founding of the country, the deepest
schisms ran not between large and small states but between North and
South. At the Constitutional Convention, when Pennsylvania's James
Wilson proposed direct national election for the president,
Virginia's James Madison countered that such a system would enable
the North to outvote the South; under direct election, the South
would get no credit for its half-million slaves, none of whom, of
course, would be able to vote. The electoral college system that
ultimately emerged gave the South partial - three-fifths - credit
for its slaves.
Virginia was the big winner, thanks largely to
its massive slave base. Under the 1800 census, the free state of
Pennsylvania had far more eligible voters than Virginia but got 20%
fewer electoral votes. Perversely, the more slaves Virginia (or any
other slave state) bought or bred, the more electoral votes it would
receive. Were any slave state to free slaves who then moved to the
North, it could actually lose electoral votes.
For 32 of the Constitution's first 36 years, a
slaveholding Virginian occupied the presidency. In 1800, Virginia's
Thomas Jefferson beat Massachusetts' John Adams because of the
three-fifths handicap. Had slaves not been counted, Adams would have
won. With this pro-slavery bias of the system in full view,
Americans in 1804 adopted a constitutional amendment (the 12th) that
pointedly preserved the tilt toward slavery while fixing other
electoral college glitches caused by the emergence of national
political parties.
The founders' system also encouraged the
continued disfranchisement of women. In a direct national election
system, any state that gave women the vote would automatically have
doubled its national clout. Under the electoral college, however, a
state had no such incentive to increase the franchise; as with
slaves, what mattered was how many women lived in a state, not how
many were empowered. Even today, a state with low voter turnout gets
precisely the same number of electoral votes as if it had a high
turnout. By contrast, a well-designed direct election system could
spur states to get out the vote.
Of course, even an election system with tainted
origins might be worth preserving for different reasons today. But
if the electoral college makes sense in the modern era, why has
every state repudiated this model for gubernatorial elections? If
one person, one vote is the right way to pick California's governor,
why not the country's president?
Some may contend that the electoral college can
minimize fraud - but historical evidence doesn't bear this out. Some
say the system protects against recounts - but it couldn't prevent
the Florida recount, and why should recounts be feared in a
democracy? Still others believe that the electoral college deters
fringe candidates - but multiple parties have always appeared on
presidential ballots.
True, the electoral college has inertia on its
side, but that's hardly a reason to resist reform - especially when
the system puts at risk the basic democratic ideal of equality and
inclusion, the very ideal the U.S. is seeking to promote around the
world.
The
Case for Reform
Electoral
College Table of Contents
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