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Executive Summary #15 on Legal Issues

November 1, 2004

Executive Summary:The Electoral College: Enlightened Democracy

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America's method of electing Presidents, colloquially referred to as the Electoral College, has come under fire in the aftermath of the 2000 presidential election. That election was the first in more than 100 years to feature a discrepancy between the popular and electoral vote outcomes. Today's unenthusiastic views on the Electoral College would surprise the founding generation. They considered the Electoral College to be one of the greatest achievements of the Constitutional Convention.

The Electoral College was originally conceived as a compromise between the large and the small states, and it still serves the nation well today. The federalist nature of the presidential election system ensures that Presidents will represent the wide variety of subcultures that span the nation. The Electoral College, together with the winner-take-all system, encourages moderation, compromise and coalition building, as well as stability and certainty in elections. The two main alternatives that are often proposed--the District Plan and the Proportional Plan--cause more problems than they solve.

The Constitution's Election Process. American presidential elections are conducted by a national tally of states' electoral votes, rather than individual votes. State legislatures must determine the method by which their representatives in this national election, referred to as electors, are chosen for their states. All states today rely upon a popular election for the selection of electors. Forty-eight states and the District of Columbia award their entire slate of electoral votes on a "winner-take-all" basis. Maine and Nebraska allocate electors based partly on the state vote winner and partly on congressional district results.

A President is elected when one candidate obtains a majority of these states' electoral votes (currently 270 electoral votes). If no candidate obtains a majority, the election goes to Congress under a contingent election procedure. In such an election, the House selects a President and the Senate selects a Vice President. A contingent election of a President last occurred in 1824, and is unlikely to occur again in a dominant two-party race.

Origins of the Electoral College and the Benefits of Federalism. The Founders sought a unique solution to two contradictory goals facing the new country: How could they allow the sense of the people to be reflected in the government, yet still protect the minority from the dangers of unreasonable majority rule? They accomplished their objective by creating a federalist republic in which majorities would rule, but minorities would always have opportunities to make their voices heard. The Electoral College fell into line nicely with this new governmental structure.

The federalist nature of the American presidential election system has an important benefit: It requires presidential candidates to build nationwide coalitions and to show that they will be good representatives for a diverse nation composed of both small and large sovereign states. Presidential candidates cannot succeed if they focus too narrowly on a handful of states, regions, or metropolitan population centers. Critics dispute the benefits of federalism in the presidential election process, arguing instead that state-by-state voting causes some individual votes to be "wasted" or encourages a focus on "swing" states to the exclusion of "safe" ones. Their arguments, however, do not hold up under scrutiny.

Stability and Certainty in Elections. Critics of the Electoral College make the mistake of assuming that they can change the Electoral College without changing any other element of the political system. To the contrary, elimination of the Electoral College is likely to undermine the two-party system--a system that has encouraged moderation and compromise in American politics. Without a two-party system, the electorate would splinter its votes among many candidates. Multi-candidate presidential races would result in constant recounts, uncertainty, and consistent runoffs.

The Electoral College also has the benefit that it tends to magnify the margin of victory for presidential candidates, removing uncertainty from elections that are close in the popular vote. Moreover, the Electoral College controls the incidence of fraud and error in presidential elections. Fraud cannot be completely eliminated when ambitious men are vying for power, but its impact can be minimized. The Electoral College accomplishes this purpose by isolating problems to one or a handful of states. The scenarios seen in Florida in 2000 are not seen on a national scale, as they would be under a close, direct popular election.

The District and Proportional Plan Alternatives. Two commonly proposed alternatives to the Electoral College would allocate votes either by congressional district or proportionately, according to the outcome of the popular vote in each state. These plans cause more problems than they solve. The District Plan would promote increased gerrymandering of congressional districts and a focus on "swing districts." The Proportional Plan would encourage contested election outcomes, because at least one electoral vote in each state would constantly be open to dispute. Colorado's pending proposal to adopt such a plan via referendum is unconstitutional. Moreover, its most immediate impact, if adopted, will be to minimize Colorado's importance in presidential elections.

Conclusion. America's presidential election process preserves federalism, promotes moderation and compromise, and grants definitive electoral outcomes. The unique presidential election process created by the Founding Fathers has served the nation well for more than 200 years and should be retained.

Tara Ross is a lawyer in Texas and the author of Enlightened Democracy: The Case for the Electoral College (World Ahead Publishing, November 2004).

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