By John B. Anderson
Published April 1st 2005 in Human Rights, American Bar Association journal
The reelection of the forty-third president of the United States
took place not on November 2, 2004, when some 120 million Americans
cast their ballots, but on December 13, 2004, when 538 members of the
Electoral College officially met pursuant to article II, section 1 of
the U.S. Constitution.
This quadrennial event has not been emulated by
any other democracy in the world. One American observer, Robert Pastor,
director of the Center for Democracy and Election Management, who
previously helped organize election observation missions to about
thirty countries, recently commented that “[t]he Electoral College was
a progressive innovation in the 18th Century; today, it’s mainly
dictatorships like Communist China that use an indirect system to
choose their highest leader.” Robert Pastor, America Observed, THE
AMERICAN PROSPECT ONLINE, at www.prospect.org/web/index.ww (Dec. 20, 2004).
Electoral College Supporters Then and Now
There
is another interpretation of the genesis of the Electoral College that
is even less kind in explaining its inclusion in the Constitution: that
the Electoral College grew out of the last-ditch efforts of the “states
righters” of 1787 to preserve as much of the Articles of Confederation
as possible. This group was intent on denying direct popular election
of the president and preserving the power of the states. Just as they
succeeded in a provision allowing state legislatures to elect the
members of the Senate, they wanted the primary power to elect a
president to be lodged in the states—not in a mass electorate comprised
of individual voters. James Madison, James Wilson, and Gouveneur Morris
preferred a vote by the people but fell back on the compromise of an
Electoral College to appease the die-hard defenders of the Articles of
Confederation and their exaltation of each state’s right to be its own
principal governing force.
The original design of the Electoral College
was based on the notion that electors would be faithful agents of the
people who were “men superior, discernment, virtue and information” and
who acted “according to their own will.” GEORGE C. EDWARDS III, WHY THE
ELECTORAL COLLEGE IS BAD FOR AMERICA 19 (2004). Fifty years later,
Justice Joseph Bradley of the U.S. Supreme Court and a member of the
1877 Electoral Commission established to settle the disputed
Hayes-Tilden Election of 1876, said, “Electors were mere instruments of
party—party puppets—who are to carry out a function that an automaton
without volition or intelligence might as well perform.” Id. Another
commentator of the same period, Senator John J. Ingalls of Kansas,
opined that “electors are like the marionettes in a Punch and Judy
show.”
Why has this anachronistic system, despite its demonstrable
inability to survive even a test of rationality let alone fulfill the
noble aspirations of the Framers, survived? Why has the U.S. Supreme
Court ignored the clear evidence that the original purpose of the
college has not only been subverted by faithless electors but that the
whole scheme is flawed and demeans the right of individual voters to be
treated equally?
In McPherson v. Blacker, 146 U.S. 1 (1892), relied on
heavily by the Court in Bush v. Gore, 531 U.S. 98 (2000), the Supreme
Court still insisted that the Framers expected that electors would
exercise discretion in selecting a president. Even today, in their Bush
v. Gore concurrence, Chief Justice Rehnquist and Justices Scalia and
Thomas added that their inquiry did “not imply a disrespect for state
courts but rather a respect for the constitutionally prescribed role of
state legislatures.” Id. at 104. This obduracy in clinging to an
outmoded, discredited system, whose foundation has been completely
eroded by the sweeping changes in every facet of the American polity,
is astonishing.
I believe that the primary reason for maintaining the
Electoral College may be the argument that direct popular election
would be a cancer on the federal system. One persistent, indeed
ardent, defender of this archaic method of presidential selection is
Judith Best, who insists direct popular election would “deform our
Constitution and constitute a serious implicit attack on the federal
principle.” JUDITH BEST, A CHOICE OF THE PEOPLE: DEBATING THE ELECTORAL
COLLEGE 55 (1996).
Along with many other political observers, I have been
mystified, if not confounded, by the fact that the 2000 presidential
election failed to energize a strong effort to abolish the Electoral
College. The voices for reform and the adoption of direct popular
election have been muted. Rather, Ms. Best has been joined by Electoral
College proponents like Norman Ornstein of the American Enterprise
Institute, who wrote that “three (or four) crises out of more than
fifty presidential elections is remarkably small.” Norman Ornstein, No
Need to Repeal the Electoral College, www.ncsl.org/programs/pubs/201elec.htm.
He continued: “Heaven forbid a direct vote and the ‘horrific nightmare’
of a possible nation-wide recount in a close contest, especially with
lots of late-arriving absentee votes.” Id.
At this point, one wonders if the nation’s thirty-six-day wait for the announcement of the president-elect and the Supreme Court’s five-to-four majority in the case was not in fact a “horrific nightmare.” I believe that the occupant of the nation’s highest office should be determined by legally registered voters—not 538 faceless, nameless electors—not even if their role is decreed by five members of the U.S. Supreme Court.
Reform Proposals
The
most recent history of any substantial opposition to this outmoded
mechanism goes back to my own days in the U.S. House of
Representatives, where from 1961–1980, I represented the 16th
Congressional District of Illinois. In 1969, by a vote of 338 to 70,
far more than the necessary two-thirds, representatives supported a
constitutional amendment that would have provided for direct election.
It was, of course, defeated in the Senate, where it fell prey to a
filibuster made up largely of senators from southern states, aided and
abetted by conservatives from small states. The members of this camp
offered arguments that were largely based on the notion that in a
system of direct election they would in some way—never explained—find
their own roles diminished and the needs of their states
correspondingly ignored.
Another attempt a decade later failed when
even liberal senators fell away from the cause on the ground that it
would be harmful to certain minority groups that they represented. At
about the same time, the Twentieth Century Fund Task Force on Reform
conceived a “national bonus plan.” It would have added a bonus of 102
electoral votes—two for each state plus the District of Columbia—to be
awarded the winner of the popular vote. Obviously, this would ensure
the election of the candidate favored by the people. This idea has not
won over those wedded to the concept of an Electoral College as
presently constituted, however.
Other proposals have sought to move to direct election without going through the torturous amendment process. One was offered by Professors Akhil Amar and Vilram Amar, who point out that the Electoral College, as now configured, neither helps small states, ensures states’ rights, or protects the concept of federalism. See AFTER THE PEOPLE VOTE: A GUIDE TO THE ELECTORAL COLLEGE 55 (Walter Berns ed. 3d ed. 2004). Indeed, electing a president by a popular vote would provide state governments incentives to improve our democracy by finding ways to increase the size of the vote. The Amars would, it should be pointed out, favor instant runoff voting as the optimum method for conducting the direct popular vote. The rank ordering of candidates on the ballot could ensure that, with instant runoff voting, it would be possible in one and the same election to conduct the count in a manner to ensure a true majority winner. This would solve the “spoiler problem” that today confronts any candidate who chooses to run outside the present majority party duopoly.
Institutional Intransigence
Our
elections, as they are now held, have divided rather than united the
country. Battleground states are the focus of both the candidates and
the media. In the 2004 campaign, to cite only one example, President
Bush bothered to poll in only eighteen states. More importantly, most
registration drives were focused on battleground states. Is it healthy
for the democratic process to see the number of competitive states
decreasing? Indeed, if federalism is a principal argument for some
last-ditch advocates on the Electoral College in a country where an
overwhelming majority of Americans favor direct election but feel
increasingly ignored, it is the defenders of the status quo who should
feel challenged?
Our current method of electing presidents is conducive
to the twin evils of fraud and blatantly partisan election
administration. Election 2004 witnessed a win by the president of
approximately 119,000 votes in Ohio. Narrow margins provide an
incentive for fraud and the construction of rules and regulations that
promote political advantage over voters’ rights.
Finally, the present
system actually increases a likelihood of ties in the Electoral
College. A shift of about 21,000 votes in Iowa, Nevada, and New Mexico
could have thrown the election into a 269–269 electoral vote tie, which
is certainly a possibility in the future as well. Once the election
goes to the House of Representatives, where each state has a single
vote, the likelihood of extreme partisanship and deal making, which can
trump the collective will of the people that has manifested itself in
the popular vote, becomes very real.
The need for constitutional change
is upon us, and the task is a difficult one. The dimensions of the
problem are well
defined in an article by Richard H. Pildes:
"[But] democratic
institutional designers rarely consider or build in the capacity for
representative institutions to be readily redesigned as circumstances
change. The static considerations of power and vulnerability at the
moment of formation overwhelm any capacity to create ready mechanisms
for later institutional self-revision. To make matters worse, one of the
iron laws of democratic institutions is that institutional structures
once created become refractory to change." The Constitutionalization of
Democratic Politics, 118 HARV. L. REV. 29, 84.
As specific examples in
our U.S. Constitution, Pildes goes on to cite the provisions for both
the Senate and the Electoral College, and the fact that the
representational basis for both is skewed. In the Senate, approximately
500,000 Wyoming citizens have the same voting power as thirty-four
million Californians. Pildes goes on to specifically argue that the
Electoral College, with its bonus of two electoral votes for each state
regardless of size, illustrates a larger design defect: the
Constitution’s failure to include any ready capacity to modify the
Electoral College structure over time through national political
processes, particularly in light of the material disincentives for
individual states to change their own allocation rules for electors.
Notwithstanding this more than somewhat somber assessment of the built-in resistance to constitutional change, I am encouraged by the currency of the concept of an “Age of Democracy.” If we are indeed being commissioned to spread democracy around the world, we must, in Socratic fashion, know ourselves. We are compelled to look within and to strive to become the exemplar of that which we are seeking to export. Direct democracy should exist at home within the borders of the American republic. It must replace an electoral system chained to the past and its fear of giving the people themselves the ability to choose an American president.
John B. Anderson is a professor of law
at NOVA Southeastern University’s Shepard Broad Law Center in Fort
Lauderdale, Florida. He serves as the chair of FairVote, the Center for
Voting and Democracy. He was a Republican representative in the U.S.
House of Representatives from 1961 to 1980 and ran as an independent
candidate for president of the United States in 1980.
“The Electoral College Flunks the Test in an Age of
Democracy” by John B. Anderson, published in Human Rights, Volume 32,
No.2, Spring 2005 by the American Bar Association.