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by Robert Herold

With less than two weeks remaining in the 2004 campaign, fewer than a dozen states remain of any interest to either candidate. These so-called "battleground" states are receiving exclusive attention only because of the Electoral College. Isn't it a problem that campaign 2004 has all but ignored many issues critical to, say, California, Texas and New York? Does population mean so little? And were these and other states in play, wouldn't the campaign rhetoric have been different? How would the debate over, say, Iraq have developed had both candidates found a need to actively campaign in San Francisco? Or consider the charge, Massachusetts liberal: It is a term in play only because the Electoral College places a finite value on the Bay State.

Following the 2000 election mess, the cry to dump the Electoral College grew louder. If we see a similar result this time around, the rooftops will be shaking. The criticism of the Electoral College most often begins (and ends) with the issues of logistics and elitism. Both factors, so the argument goes, having been long ago answered by history if not constitution change. Put simply, we didn't have airplanes when the Electoral College was created, our literacy rate was low and less the half the population was allowed to vote. Times have changed, say an increasing number of disgruntled Americans who believe it's time to adopt a popular vote. All we have to do, they say, is get rid of this "horse and buggy" Electoral College system.

It's not so simple.

By switching to a popular vote, you would cut out the role that states have always played in the election of the president. If through the Electoral College vote count (based on states) no candidate wins a majority, the decision goes to the House of Representatives, where each state delegation has one vote. Population counts for nothing at all. We live in a federal republic, not a democracy, and our electoral process reflects this often overlooked fact. Therefore, to attack the Electoral College is to attack federalism as we know it; the Founding Fathers never had a popular vote in mind at all.

Until 2000 (with a couple blips back in the 19th century), it hasn't been much of an issue. Since the states have adopted the "winner take all" electoral model, it's unlikely that a candidate won't gain a majority in the Electoral College vote. Obviously, such a process works against minority parties. But the Founders believed that the need to gain a majority would lead to compromise, which is good in creating leaders who have at least some kind of mandate from the people.

To illuminate, let's replay Election 2000 by replacing the Electoral College with a popular vote model, but one that still maintains the Constitutional role of states as well as the necessity that the winner must receive a majority of the vote. We would first need to reassign electors on a proportional basis, state by state. If my calculations are correct, Al Gore would have come out ahead of George W. Bush 267 to 262. So Gore wins? Right? Not so fast. Remember, he still needs a majority, or 270 votes. Why doesn't he have a majority? Because Ralph Nader, in a proportional system, wins eight votes (depending on how you round off the percentages). Since we have no majority winner, the election goes to the House of Representatives, where each state delegation has one vote.

So how would the state delegations decide? I can think of two strategies. First, they could vote along party lines, which is to say that if the R's have six seats and the D's five, Bush receives that state's one vote. This way, Bush would have won 27 to 24 (including the District of Columbia). Our delegations could, however, decide to distribute electors based on whoever won the popular vote in their respective states. Bush still would have won, and by a bigger majority, 30 to 21. I assume, of course, that the Nader votes will wash out under either scenario.

Despite his popular vote lead, Gore would have won only if we were willing to strip the states of important standing in the Constitution. James Madison, I think, would have cautioned against adopting such a system. He argued for compromise, which he believed was produced most efficiently by a system biased towards majority rule. He would not want a proportional system that might elect a candidate who claims less than, say, 30 percent of the vote. Would such a president enjoy the legitimacy necessary to govern? Madison would say that he wouldn't.

So as we grumble our way through another election and brace ourselves for another Florida, we need to be reminded that reform is not so simple a matter as turning the horse out to pasture and storing the buggy in the barn. It would require that we fundamentally change our system of government. Perhaps we should give grand reform a go. If Election 2004 goes as badly as Election 2000 did, the pressures will mount to do just that. But, as I say, it's not at all a simple task. Not simple at all.

Publication date: 10/21/04
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