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.

Published October 12, 2007 11:11AM (EDT)

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.

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.

By Garrett Epps

Garrett Epps is a professor of law at the University of Baltimore and a former reporter for the Washington Post.

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