For 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.
The 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.
Serious political costs, by contrast, arise even in this best case scenario: candidates 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.
Although 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.
But 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.
Our 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 presidency.
But 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.
Second, 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.
Finally, 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.
Rather 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.
Our 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.
November 13, 2000
John Carney is an attorney is New York City.
