Constitutional Law

No one would accept a method of voting for any other public office that virtually required the candidates for office to ignore large swathes of the electorate. For years it seemed that the only way to change this would be to amend the Constitution. But that is such an unlikely prospect that even after the 2000 election provided a modern-day example of a candidate who won the popular vote but lost the electoral vote, the Baker-Carter Commission, which had been tasked with coming up with voting reform proposals, chose not to propose or even consider abolition of the Electoral College. 

Into this void stepped two brothers who are law professors, Akhil Amar and Vikram Amar. Because each state may choose the method by which its electors are allocated, they asked why not have states direct their electors to vote for the winner of the popular vote. Their idea has been adopted by a non-profit group called the National Popular Vote. Backed by former Sens. Birch Bayh and Jake Garn, it has introduced bills in 42 states that would require a state’s electors to vote for the winner of the national popular vote once states with a total of 270 electoral votes -- the minimum number needed to win the presidency -- had signed on. Should this effort succeed, what is now an odd patchwork system in which the candidates vie for election in a random selection of around 15 states at most (or more likely about 8 this time) would become a truly national election. For a nascent movement, the National Popular Vote has had considerable success. The approach has been adopted so far in Maryland, New Jersey, Illinois, and Hawaii, which have a total of 50 electoral votes among them.

The National Popular Vote effort came to Massachusetts recently and revealed that any proposed change in the presidential election process brings forth defenders of the Electoral College who would have you believe the sky is about to fall. They see the Electoral College as vital to ensuring that successful presidential candidates have national rather than purely regional support and that the two party system survives. To these perennial arguments, this time they added that the National Popular Vote system is probably unconstitutional because it would undermine the added weight given bythe Electoral College to the votes of small states.

The truth is that the Electoral College is not a vital democratic organ. It is more like an appendix, a curious remnant of a bygone age that may once have served some long forgotten purpose, but now can cause only trouble, as it did in 2000.

The founders did not adopt the Electoral College with any great purpose in mind. It was a compromise, and an unimportant one at that. The drafters of the Constitution did not think that presidential elections would typically be resolved in the Electoral College. Overawed by George Washington, theycould see him being elected president by acclimation, but they saw no one else on the horizon with any similarly broad popularity. They expected that, after Washington left the scene, future elections would generate candidates with purely regional support, none of whom would come close to winning a majority of electors. Consequently, they spent far more effort devising a method by which the House of Representatives would determine the president after the inevitable failure of the Electoral College to do so.

Did the founders nonetheless inadvertently stumble upon an approach that would guarantee that the presidency could be secured only by a candidate with broad geographic support, thereby promoting national unity? Hardly. The Electoral College cannot prevent

serious regional divisions from arising, as they did before the Civil War, or effectively counteract those divisions.   

In the election of 1860, when a mechanism to keep the country together was needed most, the Electoral College failed utterly. Lincoln’s campaign focused exclusively on northern states -- he was not even on the ballot in nine southern states – and he won easily with this regional approach. Stephen Douglas took the unprecedented step of going on a nationwide speaking tour to urge the country to remain united. His message resonated sufficiently to garner him second place in the popular vote, but the Electoral College masked this broad support for national unity because he carried only one state’s delegation.

While our national divisions are thankfully not what they were back then, the Electoral College is still making them appear to beworse than they are. In the 2004 presidential election, George W. Bush won the popular vote by less than 2 percent over Sen. John Kerry (D-Mass.), and in 21 states the margin of victory for one of these candidates was 10 percent or less. This evidently close national election looks much different on the electoral map, which reveals a major regional divide. Senator Kerry prevailed in the northeast, the West Coast, and in a swath of states on the western end of the Great Lakes, while President Bush took everything else.

There is also no real reason to believe the Electoral College helps maintain a two party system. In theory, with most states giving all their electors to the candidate who prevails in the state’s popular vote, the system favors only parties large enough to win majorities in many states.   But there is no evidence that this has anything to do with developing or maintaining the two party system in this country. The two party system arose out of the disagreements between  Thomas Jefferson and Alexander Hamilton during Washington’s administration, long before the present method of selecting electors predominated. 

The Constitution leaves the method of elector selection up to each state’s legislature, many of whom initially kept this important task to themselves. Six states still did so as late as 1824,and in that year five others chose electors by districts within their states. In subsequent elections, the winner-take-all approach predominated, but by then the two party system was already firmly entrenched in our national life, no thanks to the Electoral College.