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Election Analysis and Commentary

Sunday, November 12, 2000

Eric L. Davis

With the possibility that the same presidential candidate will not win both the electoral and the popular vote, calls for a constitutional amendment to replace the Electoral College with direct popular vote of the president are once again being heard in Washington. Members of Congress from both parties - most visibly Sen.-elect Hillary Rodham Clinton (D.-NY) - are demanding that hearings be held early in the new Congress on a constitutional amendment that could be sent to the states for ratification in time for new electoral rules to be in place for the presidential election of 2004.

Hearings on reforming or replacing the Electoral College will almost certainly be held soon after Congress convenes in January. Whether those hearings will result in a proposed constitutional amendment is another matter. An amendment must be approved by a two-thirds majority in both the House and the Senate before it can be sent to the states for ratification. Then, it must be approved by the legislatures in at least three-fourths of the states before it can become part of the Constitution.

Some defenders of the Electoral College refer back to the Founders' intentions in 1787. The advocates of this position note that the framers of the Constitution were deeply skeptical of both direct democracy and election of the President by the legislative branch. The Electoral College was seen as an institution that would allow for an indirect popular role in the election of the chief executive. However, since that popular role was mediated through the electoral college, the choice of the populace (at least those who were eligible to vote in the late 18th century) was prevented from being swayed by a demagogue. By involving the House in the election of the President only if no candidate received a majority of the electoral vote, the President would owe his election to an independent electoral base and would not be subject to improper influence and pressure from Congress.

These arguments were appropriate for the time when the Constitution was written, before the rise of political parties and mass communications. Still, the Constitution needs to be seen as a changing document, adaptable to the times in which each generation lives. Election rules that were suited for 1800 may not be suited for 2000.

However, the Electoral College system has served America well over the past two centuries. Prior to 2000, there have been only three times since the 12th Amendment went into effect for the election of 1804 that the winner of the popular vote did not become President: in 1824, when no candidate received a majority of the electoral votes and John Quincy Adams was elected by the House; in 1876, when a disputed election was awarded to Republican Rutherford B. Hayes over Democrat Samuel Tilden by a special committee with an 8-7 Republican majority; and in 1888, when Republican Benjamin Harrison received more electoral votes, but fewer popular votes, than Democrat Grover Cleveland.

A system that has produced a clear winner in nearly 50 presidential elections should not be casually replaced. Additionally, the Electoral College system does force presidential candidates to pay more attention to the concerns of the voters in large states with substantial blocs of electoral votes: states such as California, New York, Florida, and Michigan. These states are reflective of the social, demographic, and cultural diversity of the nation. It is appropriate that candidates spend much of their time and money seeking the votes of persons residing in these large and representative states.

The presidential nominating process is criticized for placing too much attention on the votes of Iowa and New Hampshire, two states that are not representative of the nation as a whole. Moving away from the Electoral College will diminish the influence of the nation_s major metropolitan areas in the election of the President. (Indeed, some observers have asked why Sen.-elect Clinton has been so quick to call for repeal of the Electoral College, since New York is one of the major beneficiaries of that system.)

My most serious reservation about replacing the Electoral College with direct popular vote involves the question: if the President is directly elected, what is the minimum percentage needed to win the office? 40 percent? 50 percent? Some other percentage?

Should the American public tolerate a voting system that would allow a candidate who is supported by substantially less than a majority of the voters to become the President? This would be the effect of a 40 percent minimum. A 40 percent rule would encourage third party candidates to run, hoping that they could either win the presidency in a closely-divided three-way race (as Reform Party candidate Jesse Ventura won the governorship of Minnesota in a three-way race). Alternatively, a third-party candidate could draw away enough votes that would otherwise go to a major-party candidate that the public_s least preferred choice could be elected President with a 40 percent threshold.

Third party candidates would have even more influence if 50 percent were required to win, since such a system would require a runoff election if no candidate received a majority in the first round. A two-round system with a 50 percent requirement is used in French presidential elections. In France, multiple candidates contest the first round and then throw their support to one of the two remaining candidates for the final runoff. Do Americans wish to support a system with multiple candidates from many political parties jockeying among each other during the weeks between a first and second rounds of voting? And if there were a runoff election, would that not exacerbate the problems associated with long and expensive campaigns?

The Electoral College system, and the two-party system that it supports, have served the United States well for the past two hundred years. We should think carefully before supporting reforms to the Electoral College that could introduce instability into our electoral processes and lead, far more often than under the current system, to uncertain election results.

There are some reforms in electoral processes that are needed following this year's election. Among these are elimination of punch-card ballots (a step taken in Massachusetts following a 1996 contested election using these ballots) in favor of more reliable voting systems such as optically-scanned ballots and touch-screen voting machines; a uniform poll-closing hour across the nation in order to prevent early broadcast of exit poll projections from influencing voter behavior; and a requirement that all absentee ballots be received by election day. The casting of the electoral vote in each state could also be made automatic by requiring that all electors vote for the presidential candidate who finishes first in their state. (Only 26 states now have such a requirement.) Full-scale reform of the Electoral College, although appealing, may turn out, on closer inspection, to be an unwise proposition.