As for the two-party system, does it really need the electoral-vote system to protect it? In many state elections, a simple plurality is enough to elect a governor, a representative or a senator. Yet very few third-party candidates ever succeed. And if one does get more votes than major-party nominees, he or she should win.
Then there's the claim that the electoral vote system honors our federal system by involving state governments in the election. But why should local officials have any role in picking federal officeholders? Elections belong to the people. In fact, the current system often rewards state officials for interfering in elections and preventing their citizens from voting. Take, to pick a state not entirely at random, Florida. It has 27 electoral votes. It has those 27 votes no matter how few people show up at the polls on Election Day. So a governor of Florida may be better off if he can restrict voting to the kind of people who vote the way he likes. In the old days, Southern state officials used lynchings, "literacy" tests and poll taxes to keep the "wrong " voters, meaning blacks and poor whites, at home. Today they use police, purges of the voter rolls, rigid felon-disfranchisement laws, skewed allocation of voting machines or repressive ID requirements to achieve the same end. Under a system of direct election, state officials would want more, not fewer, people to vote.
It is true that if we go to direct election, we should probably also have the federal government running the election. So what? That's what every other industrial democracy I'm aware of does. A well-designed federal election process would have more integrity than the current politicized state-by-state mishmash, which empowers characters like Katherine Harris and Ken Blackwell. By comparison to our present system, Mexico is a model of clean elections.
Finally, the argument that the electoral system has worked well is ridiculous. No part of the Constitution has failed more often, and brought us closer to disaster, than the election provisions of Article II. In 1800, when the election was thrown into the House of Representatives and Jefferson, the Democratic Republican candidate, was nearly robbed of the office, Jeffersonian state militia began assembling to march on Washington. The elections of 1876 and 2000 also caused prolonged crises that were ended by a corrupt bargain (1876) or a judicial coup d'état (2000). And in 1824, 1876, 1888 and 2000, the electoral-vote majority went to a candidate who got fewer popular votes than his opponent. Perhaps in 1789 this would have been OK (though I doubt it); there's no excuse for it in a modern democratic republic.
Because of the electoral system, every presidential election is a moment of danger for the Republic. Not only is the voting system undemocratic, the electors are individual people, a fact that creates what constitutional scholars call the problem of the "faithless elector." Electors have sometimes refused to vote for the candidate they were pledged to. So far this hasn't switched the result of an election. But it could have, and it could in the future. In 1976, a recount in Ohio might have brought Gerald Ford within 7 electoral votes of the popular-vote winner, Jimmy Carter. If that had happened, Bob Dole, Ford's running mate, later baldly explained, "We were shopping -- not shopping, excuse me. Looking around for electors ... We needed to pick up three or four after Ohio."
The fact is that the electoral system owes its creation to the worst possible source: chattel slavery. In Philadelphia, Madison described "the people at large" as "the fittest [source of election] in itself." But without a great deal of regret, he immediately sacrificed this principle because "the right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty."
After all is said and done, there's one overriding reason why many (not all) of the defenders of the existing system are so tenacious: By giving too much representation to small states, it skews the result toward conservative victory. Much of the talk about fear of democracy is really fear of the popular majorities that regularly show up on opinion polls for progressive measures like national healthcare and public financing of campaigns. John Samples of the Cato Institute wrote in 2000 (while Florida hung in the balance) that without electors, "We would probably see elections dominated by the most populous regions of the country or by several large metropolitan areas. In the 2000 election, for example, Vice President Gore could have put together a plurality or majority in the Northeast, parts of the Midwest, and California."
In short, the wrong person would be apt to win, and the wrong voters -- urban, nonwhite, progressive -- would outvote the right ones. In 2004, Gary L. Gregg wrote in National Review Online that "it's the electoral college that keeps the values of traditional America relevant in the 21st century and the electoral college that helps rural America balance the immense cultural, economic, and social power of urban centers." In other words, it prevents majorities from changing America. Most baldly, conservative pundit Steve Farrell wrote a few years ago that electoral voting "insures a candidate must balance his approach with rural, property, and state rights issues. It is one of many checks against direct democracy found in our Constitution, and is therefore a check against socialism."
A voting system should be designed to determine the majority will, not to disguise it. No matter how many bullets we dodge, this system is a loaded gun pointed directly at the heart of our democracy. That we pointed it there and keep it there ourselves doesn't make it any less dangerous. The solution is not to fiddle with the bullets; we need to put the gun down, and make another vital step toward real democratic government, 21st century-style.
About the writer
Garrett Epps teaches constitutional law at the University of Oregon. His latest book is "Democracy Reborn: The Fourteenth Amendment and the Fight for Civil Rights in Post-Civil War America."
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