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Doomsayers have warned for years that one of these days the Electoral College was going to cause a constitutional crisis of mammoth proportions. This may be the day!
Although it was an integral part of the system designed by the Founders more than 200 years ago, many Americans are still shocked to find out that the presidency is not a popular election.
Just as it was back in 1789, our President is selected by Electors who are chosen by means adopted by each state legislature. The idea was that ordinary voters could not possibly know enough about leaders from other states who might make a suitable President, so our Chief Executive would be chosen by an elite group of citizens familiar with the national landscape and the needs of a vast nation. Each state was given a number of Electors equal to the total number of members they had in the Senate and House, meaning even the smallest state had three electors. The Constitution was amended in 1961 to give the District of Columbia an additional three Electors, bringing the total to 538.. While the earliest Electors were appointed by the legislatures themselves, it soon evolved that the Electors would be directly elected by the citizens of each state.
With the rise of political parties, each party proposed a slate of Electors and the voters would choose among the competing slates. Today, in all but two states, the candidate who wins a plurality of the state's popular vote wins all of that state's Electors. The two holdout states, Maine and Nebraska, allow the voters in each congressional district to choose one Elector, and two bonus Electors are awarded the candidate with the highest statewide total. The overwhelming majority of states reject any such proportional scheme on the theory that it devalues the state's influence in the presidential sweepstakes.
As a consequence of the electoral vote system, it is possible for a President to lose the election while winning the most popular votes across the nation, which may well be the case this year. Indeed, it has happened three times before in our history, the last one being in 1888, when Grover Cleveland lost his bid for renomination to Benjamin Harrison by an electoral vote of 233 to 168, although Cleveland won the popular vote by almost 100,000. In 1876, when three southern states elected competing slates of Electors, Congress voted to accept the votes of the Republican electors from all three, giving Rutherford Hayes a one-vote victory over Democrat Samuel Tilden, who had a quarter million more popular votes.
In a 4-way presidential race in 1824, John Quincy Adams was finally made President by the House of Representatives although Andrew Jackson outpolled him in both the popular and electoral vote. But since no candidate had a clear majority of the electoral vote, a Constitutional provision kicked in providing for the lower house of Congress to choose the President from among the three candidates who received the most electoral votes. In such a case, each state's House delegation gets one vote and an absolute majority of the states is required for election. States whose House delegations are split are not counted. If Bush and Gore had wound up in a tie with 269 electoral votes each, it turns out that there will be at least 28 states in the new Congress with majority Republican House delegations and at least 18 states with majority Democratic delegations. Three states will be evenly split. (In New Jersey, that result is still in doubt, with each party holding six seats while a recount goes on in the deadlocked 12th District race between Rush Holt and Dick Zimmer.) Thus, in such a scenario it is almost certain that the House would pick Governor Bush.
But in this year's too-close-to-call presidential election, the Electoral College takes on even more significance. There is room for human error, or more accurately, human defection. In most states the Electors are not legally bound to support their parties' nominee, although they generally do so. In modern times, about half the states (including Florida) have enacted laws which require Electors to pledge to support their party's nominee. But even in those states it is not absolutely certain whether that pledge can be enforced, unless there is a further provision in state law authorizing the victorious candidate to replace a defecting Elector. The United States Supreme Court upheld a pledge provision half a century ago, but it has never decided whether the pledge could be enforced in the face of a Constitutional provision which on its face authorizes the Electors to vote as they please.
That fact could conceivably create chaos in the current presidential imbroglio. Try this scenario: Florida certifies George Bush as the winner of its 25 electoral votes despite serious questions about the disqualification of thousands of ballots (enough to have changed the result) by supporters of Al Gore who inadvertently also voted for Pat Buchanan on a confusing ballot in Palm Beach County.
When the Electors convene in their respective state capitals on December 18, three Bush/Cheney Electors somewhere in the country, offended by what they consider an improper count in Florida, exacerbating the fact that Bush ran second in the popular vote, decide that the only honorable thing to do is to cast their votes for Gore and Lieberman. (There will be an effort to replace those Electors, but it is not at all clear that effort will succeed, depending on the particular state's law as well as an interpretation of the Constitution).
The faithless Elector has been a recurring nightmare in presidential elections, although it has never before been decisive of the outcome. The last time was in 1968, when a Nixon Elector insisted on casting his vote for George Wallace. Although it did not affect the result. there was a move in Congress, which must accept and certify the electoral vote, to reject the miscast ballot. Under the law, each house of Congress must vote separately on a challenge to any electoral vote, and unless both houses agree to the challenge, the vote must be accepted as cast.
The final Act: When the new Congress convenes in January, the Republicans will have a working majority in the House and could vote either to reinstate the Bush votes (although it is not clear it has that authority) or to at least reject the three Gore votes, allowing the election to be thrown into the House, where the Republican majority can choose Bush as President.
However, that plan succeeds only if the Senate concurs. As this is written, with the Washington state election still the subject of recount, it is quite possible the new Senate will split 50-50. If the Senate votes along party lines, it will not uphold the challenge (whether or not Al Gore, who will still be Vice-President and President of the Senate until January 20, casts a tie-breaking vote). In such a case, it would appear the three disputed votes would have to be accepted and Al Gore will become the 43rd President of the United States.
How does one fix this system -- which is clearly in need of some kind of repair.-- in a country as large and diverse as ours, where so many still cling dearly to notions of state sovereignty and autonomy?
Indeed, a popular vote system might be just as problematic. If a recount in one state can pose so many problems, suppose we had to recount the hundred-million-or-so votes cast across the country.
One quick fix would be to o away with the Electors, while retaining the electoral vote -- with the electoral vote automatically going to the state winner. This would solve the faithless Elector problem, but still wouldn't resolve the dispute over who won Florida's 25 electoral votes.
A better solution might be to get rid of the winner-take-all system and adopt the Maine/Nebraska model -- apportioning a state's votes by district or some other means... This would give even more power to small states with only one House seat.
If each state retained a minimum of three electoral votes, those states would always be winner-take-all, and might make the unanimous votes of Wyoming and Alaska as significant as the apportioned votes of California and New York. That is a solution not likely to resonate well with the large states.
