Let's abolish the Electoral College
Created to protect the slave states, it is championed now by conservatives who fear the power of America's true majority. It's time to ditch the antiquated way we choose presidents.
By Garrett Epps
Read more: Rudy Giuliani, Al Gore, Civil Rights, Florida, Politics, Bob Dole, Election 2000, Opinion, Ohio, 2008 election
Oct. 12, 2007 | 
The California Electoral College Initiative has been exposed for what it is: a Republican plan to steal the 2008 presidential election. The idea was to divvy up the electoral votes of the nation's biggest state by congressional district rather than give all 55 to the statewide winner -- who would almost certainly be a Democrat. But a mysterious $175,000 contribution heightened suspicions that the Rudy Giuliani campaign was behind the initiative, and prompted two key staffers to leave their posts with the group pushing it.
The collapse of the effort seems to represent a Florida-style cooked-election bullet dodged. But our democracy won't be safe until we disarm the weapon intended to fire such bullets.
It's time to abolish the electoral vote system. We should do it now.
Other nostrums only go halfway. Maine and Nebraska already split their electoral votes. Maryland has a law ordering the state's electors to vote for the winner of the nationwide popular vote. Wisely, the legislators also mandated that the law would not take effect until states representing a majority of the nation's electoral vote adopt similar laws. But there are two problems with this approach. First, state laws directing electors how to vote are unconstitutional; and second, they leave in place the skewed distribution of votes in the electoral count, which award disproportionate influence to states with small populations.
Even in 1787, the electoral system was the Framers' single worst idea. As time has passed, it has become less and less defensible. It can't be reformed or tamed. It has to go.
Americans revere their Constitution but don't understand it. Every year my students at the University of Oregon law school, channeling their 11th grade civics teachers, tell me that the Constitution is a brilliant document, conceived in near perfection more than two centuries ago. Virtually everything these students -- and bright high-school graduates everywhere in America --"know" about the Constitution is wrong. That ongoing mystification is nowhere more glaring than in the justifications offered for the "Electoral College" (a phrase, by the way, that appears nowhere in the Constitution).
Consider the arguments most often advanced in the so-called "Electoral College"'s favor: The Framers distrusted democratic elections; the system prevents candidates from ignoring small states; it maintains the two-party system; it recognizes the vital role of the state governments; without it, we'd have to have a national voting system; it has served us well.
These arguments are all sophisticated and sincere. But they're wrong. First, electing the president by popular vote would not make the United States into a direct democracy. It would simply assure to each president the legitimacy that the Framers were eager to grant to each member of the House, the certainty that he or she had received more votes than any other candidate. That would be a good thing, not a bad one -- despite one of the most elegant arguments for the system, offered by that redoubtable progressive Walter Dellinger. "At the time of Iran-Contra, Oliver North suggested that the president could legitimately defy the law because he alone was elected by all the people," Dellinger wrote in Slate in 2004. "But the Electoral College system itself should remind every president that although he is chosen by a process that involves significant popular input, his selection is not by virtue of a plebiscite that makes him, like a Juan Peron, the embodiment of the People Themselves."
Presidents, however, already claim a unique mandate from the people. Even Andrew Johnson, who had been elected by nobody, once told Congress to butt out of Reconstruction because "each member of Congress is chosen from a single district or State," while "the President is chosen by the people of all the States." And democratic systems are rarely threatened because their elected officials have too much legitimacy.
In addition, much of what we are told about the Framers' distrust of democracy is misleading. Majority rule was what Madison called "the republican principle," and was to be limited by granting enforceable rights to political minorities, not by creating loopholes that would allow those political minorities to win elections.
Anyway, even if the Framers distrusted democracy in the 18th century, that's not a good reason for us to distrust it in the 21st. We scrapped the Framers' system more than a century ago. We no longer permit individuals to own slaves, for example (13th Amendment); we no longer permit states to maintain old-South-style semi-dictatorships or skew their legislative apportionment (14th Amendment) or to bar voting by racial minorities (15th) or by women (19th) or by those who don't pay their poll tax (24th) or by young adults (26th). Senators are elected by the people, not state legislatures (17th). Why should we tolerate a system that lets state legislatures decide how states pick their electors, as Article II does? (And remember, if Al Gore had won the recount, the Republican majority in the Florida Legislature planned to set that vote aside and choose the electors themselves.)
In fact, the Framers' high-minded elite republic died at Fort Sumter, and should not be mourned. Since Appomattox, we have believed in "government of the people, by the people, for the people." The intentions of the Framers don't bind us, and they shouldn't. The Framers weren't as far-seeing or as noble as we have been taught they were.
As for protecting small states, the argument reminds me of something a Greek Orthodox priest once told me: "There is an ancient Greek word meaning fantastic." (I won't say what word it was, but it appears somewhere in the bestselling work of philosophy by Harry G. Frankfurt, "On Bullshit.") As Akhil Reed Amar of Yale Law School points out, "Only three small-state men have ever been elected president," Zachary Taylor, Franklin Pierce and Arkansas' Bill Clinton. "If the original elector system had been chiefly designed to aid small states," he notes, "its inadequacies were already plainly visible within its first dozen years of operation." Try explaining this theory to people in South Dakota, or Hawaii, or any small state that politicians of one party habitually take for granted, and that presidential candidates of both parties almost never visit.