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Should the Electoral College stay or go?

10:00 AM, Aug 24, 2004 • By CLAUDIA WINKLER
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WITH THE REPUBLICAN NATIONAL CONVENTION just around the corner and the serious phase of the campaign looming after Labor Day, many signs point to another extremely close presidential election. There's nothing like the prospect of a repeat of 2000--a virtual tie on Election Day, leading to recounts and legal battles of rare ferocity and bitterness--to drive home the desirability of a decisive result. Whoever the next president is, may his victory be plain.

When that normal outcome didn't happen in 2000, the effect on our politics was corrosive. True, the American people at large had no trouble accepting the decision produced by the working of our institutional arrangements; there never was any danger of governmental instability or insurrection in the streets. But the fact that the Electoral College winner placed second in the national popular vote (by 543,895 votes out of 100,000,000 cast) understandably rankles, and among Bush's more extreme critics, the belief that he is an illegitimate president is often present, sometimes expressed.

The polite version of this charge is that he is an "undemocratic" president, the product of a uniquely "undemocratic" feature of our political system. The United States is "the only democracy in the world that allows a popular-vote loser to win an election," mistakenly claimed a critique of Bush in the July 26 New Republic. In fact, British-style parliamentary systems can produce precisely that--a prime minister whose party won fewer popular votes than its chief rival--and do so far more commonly than our Electoral College. In the British elections of both 1951 and February 1974, for example, the party that polled the most votes failed to win the most seats and form the government--whereas the United States went for 112 years, from 1888 to 2000, without an instance of this anomalous result.

With the home stretch near, it's not too soon to brush up on just what our rules are. Since the detailed workings of the Electoral College are intricate and arcane, it's advisable to get a copy of After the People Vote: A Guide to the Electoral College, especially the up to date Third Edition edited by John C. Fortier and published by the AEI Press this year. It explains the rules that apply in almost every conceivable eventuality. (What if a major candidate dies? What if state recounts are not complete when the electors vote?) It also lays out the history of the disputed elections of 1800, 1824, 1876, and 2000, and presents intelligent arguments both for and against the Electoral College.

Law professors Akhil Reed Amar and Vikram David Amar, who favor replacing the Electoral College, remind us of the Founders' reasons for devising this contraption. The Founders' "key objection" to direct election of the president, they say, was not any anti-democratic impulse but the poor communications of the day. Voters "would likely lack information about which out-of-state figure would be best for the presidency." The same Constitution-writers who provided for direct election of the House of Representatives every two years also feared that "ordinary Americans across a vast continent would lack sufficient information to choose intelligently among leading presidential candidates."

The Amar brothers also recite the unsavory role of slavery in the origins of the Electoral College. Under direct election, the North would always outvote the South, with its disenfranchised half-million slaves. The rules for the Electoral College allowed southern states to count three-fifths of their slaves in calculating their share of electoral votes. Proposed by James Madison--an opponent of slavery, who hoped and expected slavery would disappear--the Electoral College was part of the institutional compromise between North and South that made the Founding possible at all.

The Amars also briefly review 10 modern defenses of the Electoral College, rejecting each in turn. But theirs is not last word.

That belongs to the late Martin Diamond, whose classic work on the keep-it side, The Electoral College and the American Idea of Democracy, is excerpted here. This brilliant essay, first published in 1977, reminds us that, like the U.S. Senate, the Electoral College embodies the federalist principle by which the American states were successfully united after the failure of the Articles of Confederation. The effect of the Electoral College is not to make us less democratic, but to make federal as well. Here's how Diamond puts it:

"In fact, presidential elections are already just about as democratic as they can be. We already have one man, one vote--but in the states. Elections are as freely and democratically contested as elections can be--but in the states. Victory always goes democratically to the winner of the raw popular vote--but in the states. The label given to the proposed reform--"direct popular election"--is a misnomer: the elections have already become as directly popular as they can be--but in the states. Despite all their democratic rhetoric, the reformers do not propose to make our presidential elections more directly democratic; they only propose to make them more directly national, by entirely removing the states from the electoral process. Democracy thus is not the question regarding the electoral college; federalism is. Should our presidential elections remain in part federally democratic, or should we make them completely nationally democratic?

"Whatever we decide, then, democracy itself is not at stake in our decision, only the prudential question of how to channel and organize the popular will."

After 2000, the practical wisdom of avoiding election of the president in one vast national district ought to be obvious. In 2000, state boundaries acted as firewalls, containing the uncertainty in one state. Imagine a virtual tie on a national scale--a nation-sized Florida. Lawyers for the parties would have every incentive to leap into action demanding recounts in thousands, or tens of thousands, of precincts across the land, with no sure result in sight.

With any luck, there will be no tie this year, but instead an undisputed winner--his margin of victory helpfully magnified (as is usually the case) in the electoral vote. As a country, we don't need another result that invites disparagement of our political system. Rather, we could use a result that demonstrates the effectiveness of our inherited arrangements for channeling the popular will.

Claudia Winkler is a managing editor at The Weekly Standard.