It would not be surprising if come January we again must swear in a president who did not win more votes than his rival. Again we would face a mini-crisis of democracy. Having convinced us that “every vote counts,” our civic leaders would be hard pressed to explain why the winner is not headed to the White House. The culprit in such a situation would be the Electoral College, and it is time we rethink it.
For conservatives and other champions of the Constitution, the suggestion of such a profound change to our founding document is blasphemous. As the Wall Street Journal recently editorialized about the College, “[S]ince America has survived as a democratic republic for more than two centuries, we’re inclined to think the Founders got it right.” However, the electoral system the Founders envisioned is not the one we have today; a profound change to our constitution has already happened.
The popular election of the President was considered and rejected by the drafters of the Constitution. Instead, they created a system of electors and left it to the various state legislatures to decide how these electors would be chosen. The Founders did not intend for electors to be democratically elected by the people, and selection of electors by state legislatures remained common through the early history of the country. The Founders also did not envision political parties as we have them today. However, the rise of the Democratic party under Andrew Jackson, and his belief that the President be accountable only to the people, democratized the presidency. By the mid-nineteenth century, most states had turned to the popular election of electors.
One other present reality unforeseen by the Founders is the number of mega-states like California, Texas, and Florida, which dominate the college. Theirs was a system meant to favor smaller states. Yet today, given the popular vote, smaller states are precisely the ones shunned by presidential candidates who favor courting their bigger peers.
Defenders of the College also compare it to that other republican institution, the Senate, which is similarly skewed toward smaller states. But the republican nature of that institution, and indeed our federal government, was radically changed by the Seventeenth Amendment, which took the election of senators away from state legislatures and gave it to the people.
A return to a truly republican form of government–one in which the purpose of the federal government is to protect our liberties, and not to heed every popular whim–would be ideal. However, the reality is that we have steered the nation into much more democratic waters. Although the Constitution has not been altered, the Electoral College we have today is not the same one the Founders designed. If one accepts that the election of electors will not be devolved by the people back to legislatures any time soon, then it might be rational to consider alternatives to the College.
Supporters of the current system argue that it promotes stability by lending credibility to the winners of pluralities. For example, Bill Clinton’s 43 percent of the vote in 1992 was transformed into a resounding 370 to 168 victory over George H. W. Bush in the Electoral College. But stability comes at a cost. In the same election, H. Ross Perot garnered almost 20 percent of the popular vote, yet was unable to collect even a single vote in the Electoral College. His voters were effectively disenfranchised because their voice was not heard in the College.
The Republican Party has failed conservatives–nominating national candidates unfazed by rampant social spending or the growth of government–and many liberals would agree that the Democratic Party has failed them. Third-party movements might help break the current unprincipled march toward the mushy middle, but they will never succeed while there is an Electoral College to render them irrelevant. Stability may not be much of a blessing when the status quo stands for nothing–or rather everything.
Nor is stability and legitimacy served when, despite the promise of democracy, the people feel powerless and cheated. Why bother voting if you live in Washington, D.C., or states like Texas or New York? Those electoral votes have been long decided. And if you do vote, you might not bother to do so again if you vote for the popular winner and then realize it doesn’t matter.
If we have spurned our constitutional origins and embraced a democratic ideal, then we should give that ideal meaning and make the best of it. Such a change, however, would have to come in the form of a constitutional amendment. Sure, state legislatures could decide to award electoral votes proportionally, but that would be a gradual and slow change. Ballot initiatives like the one now before Colorado voters are probably unconstitutional because the Constitution specifically gives to legislatures alone the power to decide how electors are chosen.
Electing another minority president this year, therefore, might not be such a bad thing after all–especially if it is John Kerry. Such an outcome might give Republicans common cause with Democrats to change the electoral system.
Jerry Brito is editor of Brainwash and a student at George Mason University School of Law. His Web site is jerrybrito.com.