X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
The melodrama of the 2000 presidential election has already triggered another outcry against the Electoral College. The prospect of Vice President Al Gore’s winning the popular vote but losing the election has caused some commentators to label our system an outdated failure. They argue for the abolition of the Electoral College, suggesting a direct election decided solely by the popular vote instead. This argument ignores a fundamental principle of American government. The black lines on the American map are there for a reason: They divide the country into states. The electoral vote system reflects the federalist thread sewn through our Constitution that allows 50 separate and sovereign state governments to coexist with the federal government. When we vote in presidential elections, we vote as citizens of our respective states, not merely as United States citizens. A direct election makes no more sense than filling the Senate by a nationwide contest that seats the top 100 finishers. The issue of states’ rights, which triggered the Civil War, ignited notable presidential candidacies as recently as 1968, and still echoes in Republican rhetoric, is hardly a dispensable feature of our country or the Constitution. HIGH HURDLES Abolishing the Electoral College would require nothing short of a constitutional amendment to repeal Article II, Section I, as well as the 12th and 23d amendments. The rigorous process of amending the Constitution explains why countless passionate efforts have succeeded only 17 times in the past 208 years. The procedural hurdles are only heightened by practical considerations. Representatives from larger states, relishing their primacy in the Electoral College, will never promote such an amendment, and their state legislatures will never ratify it. The real problem is not the Electoral College itself, but how its votes are awarded. Nothing in the Constitution requires a state to cast all of its electoral votes for the popular-vote winner, yet 48 states do exactly this, commonly referred to as the “winner-take-all” rule. Legal challenges claiming that such a rule violates the one- man, one-vote rule have uniformly failed. In 1966, the Supreme Court turned away a 50-state challenge to the winner-take-all rule in reaffirming that states are free to declare the methods by which they select electors. Thus, the solution lies in the hands of the state legislatures. Maine and Nebraska have demonstrated one avenue of reform by adopting the “district system,” by which they award the statewide leader in the popular vote two electoral votes, and then give one electoral vote to the popular-vote leader within each congressional district. SENSIBLE SYSTEM Had Florida employed the district system, the close race there would have left only two of its electoral votes in dispute, rather than the presidency itself. The district system would not immunize the country from having its popular-vote winner lose the electoral vote, but it would certainly result in the Electoral College more closely reflecting the will of the people, while honoring requirements of state sovereignty. Mr. Gore’s greatest achievement in 2000 may be his commendable Nov. 8 statement supporting the very constitutional system that threatened his election. The next occupant of the White House is subordinate to the preservation of a working system of government. The anomalous result of electing the second-place finisher has occurred just once in our last 31 presidential elections. As with the 2000 election, the difference in the popular vote in 1888 was less than 1 percent, and the leader did not have a majority of the nation’s votes. No voting system is going to prevent close races. Mr. Gore’s slim plurality in the popular vote would have required a national recount under the very law that triggered the Florida recount. Would proponents of a direct election rather recount Florida’s 67 counties, or every county nationwide? The Electoral College has endured with more stability than most electoral processes in the world. Its results may not precisely mirror the popular vote, but it never leads to tanks rolling through Tallahassee or citizens storming the White House. Our Constitution is not a bulletin board for the impassioned whims of disaffected citizens. Rather than wasting efforts in the ill-conceived evisceration of the Constitution, we should focus our energies on urging state legislatures to eliminate the winner-take-all rule. Philip Chronakis is an associate in the Princeton, N.J., office of Reed Smith.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.