Leave the Electoral College Alone

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nearly a week public discussion of the presidential election has
started from the premise that it would be a blow to our democracy
if George W. Bush were to gain the White House by winning the most
electoral college votes while losing the popular vote. The usual
prescription is to abolish the electoral college in favor of a direct
vote for the president.

argument is simple. In most presidential elections the candidate
with the most votes also wins the most electors. At best the electoral
college is therefore an inefficient, archaic superfluity offering
no benefits.

political costs, by contrast, arise even in this best case scenario:
are distracted from national issues-like campaign finance reform-by
local demands. Dwarfing even the troublesome cost of local distraction
is the potential error cost: the possibility that the electoral
college may select a candidate who failed to win the popular vote.
Only a direct, national vote avoids these costs. And the limit on
centralized government power is not to be found in structural and
procedural safe-guards-for the sum good government is nothing other
than the product of government of, by, and for the people-but in
a concern that the United States not be governed by a President
who failed to win the most votes.

these democratic sentiments ring true to many Americans, the United
States was composed along different rhythms. The constitution of
the United States established a federal system. A federal system
divides jurisdiction between the state governments and the national
government. Although our federalist constitution marked an expansion
of the national government's power from the time of the Articles
of Confederation, it retained sharp limits on the national government.
Only matters that were considered inherently national-like a declaration
of war-were removed from the province of the states.

surely the election of president is inherently national? The framers
of our constitution thought otherwise. The electoral college they
established made selection of the president first and foremost an
affair of the states, subject to the rules established by state
governments and embodying the careful balance evident in the two-house
national legislature. Just as the provision for two Senators for
each state keeps the more populous states and regions from dominating
the less populous states and regions, the electoral college provides
a federalist safe- guard to our presidential elections.

current predicament is exactly the situation in which the electoral
college is most valuable. Al Gore has won the plurality of the popular
vote but failed to gain support in most of the county. A look at
the country-by-county election maps that ran a few days ago in USA
Today clearly shows that Gore was a candidate of who only appeals
in a few highly populated areas. The electoral college was intended
to prevent a candidate with Gore's limited appeal from winning the

isn't this undemocratic? The supporters of Gore have pre-emptively
denounced a possible Bush presidency as u2018illegitimate' because u2018the
will of the people' supports Gore. Some have suggested that Bush
elector should switch allegiance to Gore so as not to thwart the
people's will. It stretches credibility, however, to claim that
a plurality candidate who gained perhaps a a few hundred-thousand
more votes than his nearest competitor across a country of hundreds
of millions is supported by the u2018will of the people.' There are
several reasons to doubt that a count of the popular vote is a good
proxy for the will of the people. In the first place, most people
do not vote. If the will of the people decides who should take office,
how can we justifiably disenfranchise the will of the non-voting
people? The objection that only folks who followed the procedure
of voting elevates procedure above democratic will, and points back
to the legitimacy of the electoral college.

comparing the direct votes in an election employing an indirect
election procedure is meaningless. Many people did not vote for
one candidate or another because they understood the electoral college
well-enough to appreciate the irrationality of voting. For example,
Gore was certain to win the electors from my home state, New York.
Insisting on voting for Bush would have been laughable. This means
that in the so-called u2018safe-states' – states certain to go
to one candidate or the other – many of the most intelligent
voters probably did not vote for the man who they would have in
a direct election. We simply cannot know how these individuals would
have voted without the electoral college. Any talk of a popular
vote is merely speculation.

the one thing evident from the election is the division of the electorate,
demonstrating that there is no u2018will of the people' supporting one
candidate or the other. Judging from the vote tallies, there are
two wills or two peoples that are very nearly matched in numbers.
More likely, the concept of the u2018will of the people' is entirely
fictional, a charade invented by politicians to cover-up the ugly
truth of a government constituted of nothing other than the unhampered
exercise of force and violence.

than look to government to reify some phantom general will, we need
to revive our understanding of the role democracy plays in our constitutional
order. Democracy's part on our national stage must be limited because
democracy is simply one aspect of our limited government. Far from
representing a crisis in democracy, the possibility that Bush could
become president by winning the electors of so many states but without
winning the most votes affirms the federalist limits we Americans
have placed on our government. Our real crisis is that so few of
those limits remain in place.

system of electing presidents is far from perfect. Bad men get elected
president, and when awful presidents drag us into wars, trample
the constitution, and invade the rights and privileges of Americans,
we suffer the cost of democratic government. No rearrangement of
the procedure for electing the president can repair this. Direct
election would make it worse by removing important federalist constraint
on the presidency. The task is to establish (or restore) limits
on the power of the president so that the now odious office is less
able to visit its costs upon us. It's the presidency, stupid.

13, 2000

Carney is an attorney is New York City.

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