Author: croydonconstitutionalists

In the final part of Dan Heaton’s thesis discussing the United States Electoral College, he concludes his views on the Electoral College.

CONCLUSION.

The Florida fiasco has brought the failings of the Electoral College into the limelight of the world’s media and re-awakened the discussion amongst political and constitutional commentators.  There can be no doubt that the system was exposed by the fact that Vice President Al Gore lost the election despite receiving more popular votes than George W. Bush.  However, is the Electoral College solely to blame for the problems faced by the United States Electoral system and is our most precious electoral system any better than that which commentators have vilified so much.

“New York City voters use metal lever-action machines so old they are no longer made, each with 27,000 parts.  Similar machines in Louisiana are vulnerable to rigging with pliers, a screwdriver, a cigarette lighter and a Q-Tip”

Counting the Votes.

Throughout this work I have concentrated on the workings of the Electoral College, its allocation of votes throughout the States and their method of selecting electors.  However, it can be argued that there are much greater problems facing the American election system other than the much maligned Electoral College.

In observing the scenes in Florida we all became aware of the fact that, in the United States, voting is not simply a matter of placing a cross or a tick in a box, but that it can involve voting machines and ballot papers of all shapes and sizes.  The Los Angeles Times published an article in which they collated some of the negligent and unscrupulous practices associated with voting, used in the United States.

“New York City voters use metal lever-action machines so old they are no longer made, each with 27,000 parts.  Similar machines in Louisiana are vulnerable to rigging with pliers, a screwdriver, a cigarette lighter and a Q-Tip.

In Texas, “vote whores” do favours for people in return for their absentee ballots.  Sometimes the canvassers or consultants, as they prefer to be called, simply buy the ballots.  Failing all else, they steal them from mailboxes.

Alaska has more registered voters than voting-age people.  Indiana, which encourages voting with sign-ups by mail at driver’s license bureaus, has jammed its registration lists with hundreds of thousands of people who should not be on them.  They include felons, the dead and many who have registered repeatedly.

In Oregon, a preliminary survey indicates that more than 36,000 of the state’s 1.5 million voters may have mailed in ballots this year that were signed by someone else.  Some students in Wisconsin say they voted as many as four times.

Louisiana’s former election commissioner, Jerry Fowler, pleaded guilty 14 days ago to a kickback scheme with a voting machine dealer.  Even when relationships are legal, lines of authority blur.  In the state of Washington, dealers program vote counters.  In Arizona, they go as far as to help feed in the ballots.” ⁽¹⁾

The situation whereby different states have different voting mechanisms is allowed to exist because whilst according to Article I of the Constitution, Congress can alter regulations set by states with regard to the electing of members of Congress, Article II gives states complete discretion over how to select their Presidential electors.  This not only allows states to use the winner takes all or district plan methods of allocating electors but also how any elections are conducted.

“Rebecca Merconi, a computer scientist at Bryn Mawr College in Pennsylvania, and Curtis Gans, director of the non-partisan Committee for the study of the American Electorate, estimate that at least 2 million ballots did not get counted this year across the country.  That would disenfranchise a city the size of Houston….  The only mistakes that can be estimated with any confidence are those committed by vote-counting machines.  Providers say the machines have error rates of 0.01% to 0.1%.  If that is true, counting machines alone could have made as many as 1000,000 mistakes this year – an average of 2000 votes per state.  That is far more than Texas Governor George W. Bush’s margin in Florida for the presidency.” ⁽²⁾

Whilst obviously human error can occur when counting ballots by hand.  I would suggest that the mistake rate is of a far lesser rate than suggested above.  The discrepancies and confusion are not aided by the variety of counting machines used.

“Weak equipment voting jurisdictions across the country use five varieties of lever-operated machines six kinds of punch cards, 10 sorts of optical scanning systems and six types of touch-screen….

Punch card systems that produce chads are particularly prone to problems.  Sometimes the chads – tiny rectangular pieces of cardboard – are left hungry.  Counting machines force them back into their holes and read what should be a vote as a non-vote.

Optical scanners have their own special problems.

They require precisely printed ballots, and they cannot count ballots when voters mark them with X’s, circles or check marks instead of filling in ovals boxes or arrows.  When the scanners fail to count these ballots, election workers in some states may create duplicate ballots or enhance the originals with a small graphite stamp to clarify voter intentions.  They are meant to work in pairs with members from competing political parties.

Election officials say this system works, but Shaun Newman, an attorney who represents Citizens for Leaders with Ethics and Accountability Now (CLEAN), based in Tacoma, Wash, considers the practice a sham.  “Your ballot can be re-marked, remade totally,” he says, “ without your knowledge or permission”….” ⁽³⁾

It seems bizarre that the United States is incapable of accurately counting votes in its elections.  These problems have caused public attention to turn away from the ills of the Electoral College to the various voting methods.  Indeed, a bill has been introduced in the House of Representatives to establish a Federal Elections Review Commission.  Entitled “21^st Century Election Rules and Technology Act it was introduced on March 7^th 2001 by Representative Lampson.  The duties of the Commission are laid out in Section 3:

SECTION 3.  DUTIES OF THE COMMISSION.

• A) IN GENERAL – The Commission shall examine and report on the nature and consequences of the Federal electoral process, and shall include in its report recommendations to ensure the integrity of, and public confidence in, Federal elections.
• B) SPECIFIC ISSUES TO BE ADDRESSED – In conducting its examination and preparing its report under this Act, the Commission shall address (at a minimum) the following issues:
  1. The current election technology used by states and local governments across the Nation, the current best practices of election technology, and the need for research and development regarding new election technologies.
  2. The need for new practices and technologies to aid voters with disabilities.
  3. Voter registration issues, including same-day registration, universal registration, the impact of the voter requirements of the National voter Registration Act of 1993 (commonly known as the “Motor Voter Act”), and the accuracy of voter registration rolls.
  4. Ballot access issues, including the role of mail-in balloting in Federal elections, the distinction between mail-in and absentee balloting, the uniformity or lack of uniformity in the deadlines established for the receipt of such ballots, and the possibility of fraud associated with the use of such ballots.
  5. The financial, training, and resource needs of State and local election agencies.
  6. The feasibility and advisability of voting through the Internet.
  7. The impact of polling place closing times (including an analysis of the feasibility and advisability of establishing a uniform national poll closing time for Presidential elections), the number and accessibility of polling places, and training of poll workers.
  8. The impact of the physical ballot design, including the technology used to cast and count votes and the uniformity of such technology and a consideration of a uniform design standard, and the impact of the language used on ballots, including the need for simplicity of language and the feasibility and advisability of using foreign language.
  9. The adequacy of the options available to voters and candidates to seek redress for electoral irregularities.

Hopefully the proposed Commission will come to fruition and will put forward sensible proposals to improve the currently abysmal system of counting votes.

“The Electoral College is criticised because a candidate can be elected without having received a majority of the popular votes….it can be seen below that a majority of seats is what is required to form a Government in the United Kingdom and not a majority of the popular votes”

Is Britain any Better?

There has been much criticism of the Electoral College from commentators on this side of the Atlantic.  These criticisms are epitomised by Tim Haines of The Times who claimed that “The U.S. Constitution is killing democracy” ⁽⁴⁾.  Perhaps it would be useful for Mr Haines and his colleagues to take a look a bit closer to home.

In the United Kingdom we have a hereditary monarch who is the Head of State.  Queen Elizabeth II takes part in the state opening of Parliament, grants the Royal Assent to Acts of Parliament and asks the leader of the largest party to form a Government.  However, these are all powers, which have become governed by conventions developed through the years.

The Head of State as a hereditary monarch is not elected by the people but simply the beneficiary of bygone battles, appointments and aristocratic compromise.  The executive function of government however is carried out not by the monarch but in the monarch’s name by his or her Government in Parliament.  There is therefore a lack of a true separation of powers as the executive consists of Members of Parliament (members of the legislative function of government).  Given, that our executive leaders are decided by elections to the legislature, it is important to see just how “democratic” our own voting system is.

In the United Kingdom, for Parliamentary elections, we use a voting system known as “First Past The Post” or “Relative Majority”.  Essentially, this involves voters voting in single member constituencies for the candidate of whom they most approve.  The person who receives the most votes in a constituency is elected the Member of Parliament and if a party receives a majority of the seats in Parliament then they form the Government.

The system is essentially the same as that used for United States House of Representatives elections.  However, with the vote for the legislature in Britain also deciding the controllers of the executive function, it is interesting to see to what extent the British electoral system avoids the ills levelled against the United States Electoral College.

A Candidate Winning Without Receiving A Majority Of Votes.

The Electoral College is criticised because a candidate can be elected without having received a majority of the popular votes.  This, as explained above, is perfectly true; however, it can be seen below that a majority of seats is what is required to form a Government in the United Kingdom and not a majority of the popular votes.

General Election Results 1979 to 1997 ⁽⁵⁾

Date	Party	Percentage of Votes Won	No. of Seats Won	Percentage of Seats Won
1979	Conservative	43.9	339	53.4
Labour	36.9	268	42.2
Liberal	13.8	11	1.7
Others	5.5	17	2.7
1983	Conservative	42.4	397	61.1
Labour	27.6	209	32.2
Liberal-SDP	25.4	23	3.5
Others	4.6	21	3.2
1987	Conservative	42.2	376	57.8
Labour		30.8	229
Liberal-SDP	22.6	22	3.4
Others	4.4	23	3.5
1992	Conservative	42.3	336	51.6
Labour		34.8	271
Lib-Dem	18.1	20	3.1
Others		1.9	24
1997	Conservative	31	165	25
Labour		45	419
Lib-Dem	17	46	7
Others		7	29

A Winner Need Not Receive The Most Votes.

It is quite possible if unlikely for a party to gain more seats than another party and thus form the Government, whilst obtaining fewer popular votes than the defeated party.  Fenton Bresler makes this point in his article in the National Law Journal in December 2000:

“The most recent occasion was in 1974, when incumbent Prime Minister Edward Heath’s Conservative Party polled more votes than Harold Wilson’s Labor Party – and yet Mr Wilson became Prime Minister, and his party formed the new government.  That was because Labor had won 319 seats in the House of Commons to the Conservatives 276.  In its way, it is as much an indirect way of voting as being filtered through the electoral college.” ⁽⁶⁾

Malapportionment.

Much has been made, by its opponents, of the malapportionment of Electoral College votes, whereby each state is guaranteed at least three electoral votes no matter what the population.  This apportionment is of course defended by its supporters with the argument that it maintains and strengthens the federalist principles of the founding fathers and of the constitution.  Nonetheless it does mean that one persons vote is in reality of less value to a Presidential candidate than another’s.  The United Kingdom is not a federal state, although the establishment of national assemblies in Wales and Northern Ireland and the re-establishment of a Scottish Parliament could be signs that our constitutional arrangements may be moving in that direction.  Nonetheless there are within the legislation governing the distribution of House of Commons seats, elements of federal apportionment which could well be classed as un-proportional.  The Parliamentary Constituencies Act 1986 Schedule 2 sets out the rules for the redistribution of seats:

Schedule 2.

Rules for Redistribution of Seats.

The Rules.

1. The number of constituencies in Great Britain shall not be substantially greater or less than 613.
2. The number of constituencies in Scotland shall not be less than 71.
3. The number of constituencies in Wales shall not be less than 35.
4. The number of constituencies in Northern Ireland shall not be greater than 18 or less than 16, and shall be 17 unless it appears to the Boundary Commission for northern Ireland that Northern Ireland should for the time be divided into 16 or (as the case may be) into 18 constituencies.

It can be seen that Scotland has guaranteed at least 71 Members of Parliament, no matter what the population.  It can be seen therefore that there is an apportionment that is not based exclusively on population and that this reserved apportionment for Scotland, Wales and Northern Ireland in the United Kingdom is the same as the reserved Electoral college votes for the smaller American states of Alaska, Delaware and Montana.

Faithless Electors.

In the United States Electoral College, electors sometimes fail to support the candidate to which they have previously pledged themselves.  Whilst some states have laws against this, in the United Kingdom there is no sanction against a Member of Parliament who decides to change his or her party allegiance during a Parliament.  In the recent Parliament both Peter Temple-Morris and Sean Woodward left the Conservative Party and joined the Labour Party.  In a closely contested Parliament this could cause a change in Government without the voters having had a voice.

Minority Interests.

Opponents of the Electoral College argue that because of the winner takes all system of selecting electors tends to neglect minority interests.  The winner takes all situation is the same in a state as it is in a British constituency.  Only in those constituencies with a high proportion of ethic minorities, does the ethic minority vote become of significant interest to candidates.  Whilst the views of ethnic minority voters may be taken on board in some inner city seats, the majority of seats are not affected by their vote.  It is also true that those people who vote for the losing party in a constituency do not gain any representation  (although in theory the Member of Parliament represents all of his or her constituents).  Wade and Bradley assess the British situation thus:

“The system of “first past the post” is known as the relative majority system since whenever there are more than two candidates in a constituency, the successful candidate may not have an absolute majority of votes but merely a majority relative to the vote of the runner-up.  This system is simple, but as a means of providing representation in Parliament it is very crude.  It makes no provision for the representation of minority interests nor does it ensure that the distribution of seats in the Commons is at all proportionate to the national distribution of votes.  In Britain, the general tendency of the system has been to exaggerate the representation of the two largest parties and to reduce that of the smaller parties; but even for the larger parties there is no consistent relation ship between the votes and the seats which they obtain….

The advantages claimed for the system include the simplicity of the voting method, the close links which develop between the member and his constituency, and its tendency to produce an absolute majority of seats in the House out of a large minority of votes.  In defence of the system it is claimed that the function of a general election is to elect a government as well as a Parliament, and that the system produces strong government.  But this last claim needs to be examined with care, since a relatively small change of political support in a few constituencies may be exaggerated into an apparent change of mind from one party to the other by a majority of the electorate.”⁽⁷⁾

The Need For Reform.

The cases for and against the Electoral College have been raging for the last two hundred years.  Whilst its proponents claim that it defends federalism its opponents claim that it is unrepresentative and undemocratic, and both claim that it has either a positive or negative effect on minority interests.

The Electoral College was struck as a balance between the nationalists and federalists, however, Professor Philip Klinkner believes that this is no longer an excuse for maintaining the status quo:

“Defenders of the Electoral College claim that its abolition would upset the delicate balance between majority will and individual rights struck by the framers.  But the Electoral College protects no individual rights, just the power of certain states.  And just because fewer people choose to live in those states is no reason for them to receive an extra measure of protection and power in the Constitution.

In addition, our nation’s sense of the proper balance between majority will and individual rights has changed since the framing of the Constitution.  Since then, major aspects of the Constitution have been amended to reflect this new balance.  The 14^th and 15^th Amendments extended the rights of citizenship and suffrage to blacks.  The 17^th Amendment provided for the direct election of U.S. Senators.  The 19^th Amendment extended the right to vote to women.  The 23^rd Amendment gave Electoral College votes to the citizens of the District of Columbia.  Finally, the 24^th amendment forbade poll taxes in elections for federal offices.  These changes to the Framers’ original design have not undermined our democratic system.  On the contrary, they have made them stronger.  Thus, abolition of the current Electoral College is nothing more than the next logical step in this historical progression.” ⁽⁸⁾

Professor Klinkner is correct to state that the constitution itself is not sacred and has been amended several times since its inception and indeed he gives examples of amendments which have helped to spread the franchise, representation and democratic control.  However, to eliminate the Electoral College in favour of direct election would open the position up to the whim of the majority and would eliminate the crucially important concept of federalism from the Presidential race.

Robert F. Weinhagen Jnr in his award-winning article argues that there are some things of more importance within the constitution than simple pure democracy:

“Our system of government is not as simplistic as proponents of the direct election plan would have us believe.  At first blush, it is tempting to endorse one man, one vote and the absolute carrying out of the will of the majority as the sole principles that should govern the selection of the President.

But if those principles are to be treated as absolute, why should we have a bicameral national legislature with each state selecting two senators?  Why should the President be allowed to veto legislation supported by the elected representatives of the people?  Why ought state legislatures be involved in the constitutional amending process?  Why should a Supreme Court composed of Justices with life tenure be allowed to override decisions by congress and the president?

Why should a system that has produced a President in every election since 1789 be abandoned?  It should not.  Separation of powers, minority rights, and other principles which are supported by the electoral college system are important elements of an effective and enduring democracy.” ⁽⁹⁾

The great ill of the Electoral College I would suggest is not the allocation of votes throughout the states but rather that the winner takes all system used by 48 of the 50 states and the District of Columbia.  I feel that the acceptance of a District Plan proposal would be more representative of the views of the minority within a state and yet would maintain the federalist nature of the Electoral College.

“Given that the amendment process, the state interests and the drop in public interest in the issue as the dust settles upon the election, it is unlikely that the Electoral college will be abolished or reformed in the near future”

The Likelihood of Reform.

The reform of the Presidential electoral system whether it be its abolition and replacement with direct election, or whether it be merely reform of the current College will require a constitutional amendment.  This is a very difficult process for a proposal to complete.

The process laid down in Article V of the Constitution requires Congress to pass an Amendment by two-thirds majorities of both the House of Representatives and the Senate.  Conventions or the legislatures of three-fourths of the states must, then ratify the proposal.  Given the fact that the smaller states gain an advantage under the current system then they are extremely unlikely to vote for the abolition of their privileged position.  As the Electoral College backs up the two party system it is also unlikely that congress would pass an amendment by two-thirds majorities of both Houses.

Given that the amendment process, the state interests and the drop in public interest in the issue as the dust settles upon the election, it is unlikely that the Electoral college will be abolished or reformed in the near future.

In conclusion the United States of America is not a pure democracy whether in terms of the House of Representatives which is district based and not proportional, or the Senate, which is totally un-proportional with two Senators being allocated to each state no matter what their population and this is exemplified in the Electoral College.

As H. Con Res 48, a Concurrent Resolution introduced in the House of Representatives in March 2001 states:

“That it is the sense of the congress that the United States is not a democracy – but a republic- and that the present constitutionally prescribed means by which the President and Vice President are selected State by State is essential to preserving the diversity of the citizenry of the United States and to maintaining the United States as a Federal republic composed of independent and sovereign States.” 

The United States is a federal republic and as such the states have a vital role to play in the selection of national officials.  The only nation in Western Europe which even resembles it in a sense is the Federal Republic of Germany however, they have chosen not to let the people have any direct or indirect say on the choice of their federal Head of State because of their own experience of national popular leaders.

The founding fathers had to design a system which reflected the federal nature of the new nation and that federal nature still exists today.  However, the application of the winner takes all system and the problems with voting machines and counting procedures bring  the system into disrepute.  Nonetheless the actual Electoral College is a compromise which for the most part has worked well.  In the words of Alexander Hamilton:

“[T]hat if the manner of it be not perfect, it is at least excellent.” ⁽¹⁰⁾

Notes

1. Los Angeles Times staff Writers, Dec 11, 2000.  Available at www.fairvote.org/op-eds/losangelestimesdec00.htm at p1.
2. Ibid at p3.
3. Ibid at p4.
4. Tim Haines, The Times.  November 9th 2000 p18
5. Compiled from figures found in Thompson, Brian.  “Textbook on Continental & Administrative Law.” 2nd Edition, 1993, Blackstone Press Ltd, London p147 & www.bbc.co.uk
6. Bresler, Fenton.  National Law Journal , December 1, 2000 Available at www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagemate=law/View…
7. Wade E.C.S & Bradley A.W.  “Constitutional & administrative Law”  11th Edition 1993 Longman Group, Harlow, Essex p 180.
8. Klinkner, Philip.  Insight on the News, Dec 18, 2000 v16 i47 p40.
9. Weinhagen, Robert F. Jr.  “Should the Electoral College be Abandoned?”  ABA Journal, July 1986, 67 n7 p852-857 at 857.
10. Federalist no 64.  See Beloff,  Max editor.  The Federalist 2nd edition. 1987, Basil Blackwell Ltd, Oxford.

United States Electoral College

• INTRODUCTION
• CHAPTER 1. ORIGINS & HISTORY OF THE ELECTORAL COLLEGE
• CHAPTER 2. NOT A PERFECT SYSTEM – THE PROS & CONS OF THE ELECTORAL COLLEGE
• CHAPTER 3. PROPOSALS FOR REFORM
• CHAPTER 4. THE GRASS IS ALWAYS GREENER?
• CONCLUSION

In the fifth part of Dan Heaton’s thesis discussing the United States Electoral College, he looks at the alternatives to the Electoral College.

CHAPTER 4 – THE GRASS IS ALWAYS GREENER?

European observers have been mocking the United States Electoral College since the unpleasant situation developed in Florida and they became aware of the system on this side of the Atlantic.  It appears to us that the system is undemocratic and outdated, whilst the fact that a winner of the popular vote can actually lose the election seems inherently unfair.  It is undoubtedly true that the Electoral College has its faults as outlined above, but are the European systems for electing their leaders any better? ⁽¹⁾

I have chosen to study the system used to elect the Heads of State of three countries namely, France, The Republic of Ireland and Germany.  In my analysis I have chosen to look both at the system of election and also at the role which the particular Head of State plays in governing that country.  The importance of this will be seen as the importance of a role can have an effect on the method chosen for selection and the history of a role can have an effect on both the role and the selection procedure.

“The impotent Presidencies of the Third and Fourth Republics were elected by the two chambers of the Assembly and were seen particularly by Charles De Gaulle as reasons for the collapse of France in the Second World War and its inability to settle the Algeria problem in the 1950’s”

FRANCE.

France was one of the first European countries to adopt a republican form of government since the days of ancient Rome, following the revolution of 1789.  However, the role of the Presidency during this time has been one of great discussion.  Essentially the President has had to work with the Parliament over the years to differing extents, which have changed through time and different constitutions.  Indeed the French are now governed under the constitution of their Fifth Republic, adopted in 1958.

The French have traditionally tried to maintain power with the National Assembly rather than with the Presidency, in line with republican proletariat values of representative government.  However, through the different Republics power has ebbed and flowed between the Assembly and the President until 1958, remaining mostly with the Assembly. In previous constitutions the role of the President has been kept to a minimum due to a suspicion of a strong President stemming from a republican antagonism towards a monarchy and because of a distrust of strong leaders due to the country’s experiences under Napoleon I (1799-1814) and his nephew Louis Napoleon Bonaparte who having been elected in 1848 came into conflict with the National Assembly and disbanded it.  He then turned the Second Republic into the Second Empire and declared himself Emperor in 1852.  The impotent Presidencies of the Third and Fourth Republics were elected by the two chambers of the Assembly and were seen particularly by Charles De Gaulle as reasons for the collapse of France in the Second World War and its inability to settle the Algeria problem in the 1950’s.

The role of the Presidency in French republican history is explained by John Gaffney and Lorna Milne:

“In the United States, the idea that the President, as head of the Executive power, should be elected by universal suffrage was accepted very early as an integral part of the model of political democracy created by the American Revolution.  In France, by contrast, the nineteenth century champions of the democratic principles of the 1789 Revolution came to regard a powerful Head of State, and in particular one elected by universal suffrage, as incompatible with political liberty and the sovereignty of the people.” ⁽²⁾

A strong President was thus feared and one who is directly elected no matter what power they have will have some legitimacy and thus could be seen as a challenge to the predominance of the legislature.  Thus when France adopted the Constitution of the Fifth Republic whilst the powers of the President were increased somewhat, the Fifth Republic adopted an Electoral College to select the President.  The French Presidential Electoral College differed from the United States model in that electors were not selected by the people for that particular purpose.  In fact the Electoral College consisted of Deputies, Senators, Regional Councillors, Municipal Councillors and Representatives of Councils in French Overseas Territories.

However, this system did not last long, in 1962 the first President and architect of the Fifth Republic Charles De Gaulle called a referendum for a constitutional amendment to abolish the college and replace it with the direct election of the President.  The proposal was duly ratified by the electorate in October of that year.

The Constitutional Law of 6^th November 1962 thus provided:

ARTICLE 7

The President of the Republic is elected by an absolute majority of the votes cast.  If this is not obtained on the first ballot, there shall be a second ballot on the second Sunday following.  The only candidates at this ballot are the two who received the highest number of votes at the first ballot, having, where necessary, taken account of the withdrawal of candidates who received more votes…

The amendment provides for the election of the French President by direct suffrage under a two ballot system.  Essentially to be elected President, a candidate has to receive fifty per cent of the votes on the first ballot.  If no candidate achieves this then a second ballot is held with only the top two candidates on the ballot, thereby ensuring that barring the extremely unlikely event of an absolute draw that a candidate will receive fifty per cent and thus a majority.

The system can best be demonstrated using the voting figures from the most recent Presidential election in 1995 ⁽³⁾:

First Ballot	Per Cent of Votes	No of Votes (Millions)
Le Pen National Front	15.3	4.5
De Villiers Right	4.8	1.4
Chirac Gaullist	20.5	6.1
Balader Centre Right	18.5	5.5
Voynet Ecologist	3.35	0.9
Jospin Socialist	23.2	6.9
Hue Communist	8.7	2.6
Laguiller Trotskyte	5.4	1.6
Cheminade Independent	0.3	0.08

Second Ballot	Per Cent of Votes.	No. of Votes (Millions)
Jospin Socialist	47.3	13.8
Chirac Gaullist	52.7	15.4

It can be seen in this instance that the number of votes cast was essentially the same and that the two candidates one from the centre-right and one from the centre-left of the political spectrum picked up votes from the respective parts of the spectrum.

The two ballot system whilst eventually producing an electoral majority for the winning candidate is not free from criticism.  Robert Newland criticises it in his study of electoral systems:

“…[T]his is a defective method…to be elected with only two ballots, tactical voting on the first ballot is encouraged.  An elector, believing that his preferred candidate is unlikely to reach the second {and last} ballot, may vote instead for the less unacceptable of the candidates who he believes may reach the second ballot.  The elector thereby helps to bring about his own pessimistic prediction.  The votes for the candidates no longer reflect their true support.” ⁽⁴⁾

John Gaffney ⁽⁵⁾ argues that the direct election of the President has caused the main parties to shift further to the right or to the left in order to obtain maximum support from their own side of the political spectrum in the first ballot, only to then try to mimic their opponent in the second ballot in order to obtain the votes of dissatisfied voters from the other side of the political fence.

This personalising of the process can be seen in the candidacy of Edward Ballader who was in fact a member of the Gaullist RPR Party but accepted the backing of the rival UDF Party in order to rival Jacque Chirac for the position of being the candidate of the right. 

Whilst the French Presidential Election system does ensure that the winner eventually receives a majority of the popular vote it is far from perfect.  The fact that there is a second ballot merely causes the election to be a more drawn out and expensive affair than it need be.  Whilst it is at first sight completely different to the system used in the United States, there are in fact parallels.  The first ballot is in many ways the equivalent of a United States primary election with the voters simply selecting the preferred candidate of the left and of the right just as the Democratic and Republican parties do early in election year.  The two successful candidates then try to span the electoral divide (which admittedly in America is somewhat to the right of what it is in France) in order to obtain swing voters. 

The position of President in the French system of Government may not be what it is in the United States.  The French Prime Minister is the head of the Government whilst the President is the Head of State.  The growth in the importance of the role in the Fifth Republic particularly since the adoption of direct election can be seen in the fact that both President and Prime Minister attend European Summits together.  As Maurice Durerger asserted regarding the direct election of President De Gaulle:

“It gave the President no new powers, but it gave him power.” ⁽⁶⁾

Thus whilst the President of France does not have the powers of the President of The United States he has gained legitimacy through this system.  Perhaps its adoption would be able to unify the United States!

“The system used for electing the President of The Republic of Ireland does appear to create a great amount of consensus and is relatively cost effective if possibly confusing”

THE REPUBLIC OF IRELAND.

The Republic of Ireland in common with France has both a President and a Prime Minister or Taoiseach.  However, unlike in the Fifth Republic the President of Ireland is a much less powerful role.  The President is primarily a figurehead subservient to the Government in Parliament (The Dail) headed by the Taoiseach.

The powers of the President are limited essentially to refusing to dissolve the Dail even if the Taoisaech requests it, and the President may also send pieces of legislation to the Supreme Court in order that the constitutionality of such legislation may be judged.  The Presidents other powers are otherwise explicitly exercisable upon the advice of the Taoiseach.

The President’s role under the 1938 Constitution has been described as being the Guardian of the Peoples Rights:

“If there is one thing more than another that is clear and shining through this whole Constitution, it is the fact that the peoples are the masters.  They are the masters at the time of an election, and their mastery is maintained during the period from election to election through the President, who has been chosen definitely to safeguard their interests, to see that nothing that they have not in a general way given approval of is passed by the small majority which used to be threatened here as a danger to the country as a whole….  In exercising these powers he is acting on behalf of the people who have put him there for that special purpose.  He is there to guard the people’s rights and mainly to guard the Constitution.” ⁽⁷⁾

The position of President was felt to be of such little political significance that a lack of competition for the position was anticipated within the Constitution.

Article 12 (4) 5.

Where only one candidate is nominated for the office of President it shall not be necessary to proceed to a ballot for his election.

This was used in 1938, 1952, 1974, 1976 and 1983 when there was in fact no election for the position.

Such is the lack of significance attached to the role of the President that in 1967 a report was written by the Committee on the Constitution in which the issue of whether the position of President should even be retained or abolished.  The Committee heard that:

19 (b)  The President’s formal duties as Head of State could, without difficulty, be discharged by the Taoiseach, who could act both as Head of Government and Head of State.

(c) The abolition of the separate office of President would give rise to substantial financial savings.

However, the conclusion was reached that :

20 (a)  In view of the President’s function as guardian of the constitution, it would not be realistic to allow the Taoiseach to hold that office.  One of the President’s principal functions is to assist in ensuring that legislation to the Constitution does not become law. ⁽⁸⁾

The Constitution provides for the election of the President directly by the electorate as follows:

ARTICLE 12 (2)

The resident shall be elected by direct vote of the people.

Every citizen who has the right to vote in an election for members of Dail Eireann shall have the right to vote at an election for President.

The voting shall be by secret ballot and on the system of proportional representation by means of the single transferable vote.

The Single Transferable Vote system is normally used in parliamentary elections.  It uses multi-member constituencies and a quota system for deciding on representation.  Essentially a voter marks his or her preferences for as many candidates as they like.  If a candidate is elected on the first count then his or her surplus votes are transferred according to the voter’s second preferences, this continues until all the places are filled.  Should no candidate receive a quota of votes then the least ranked candidate after the counting of first preferences is eliminated and his or her votes are redistributed. 

In the case of the election of the President however, there is evidently only a single member constituency (the country as a whole).  Therefore a winning candidate has a quota of fifty per cent of the valid votes, he or she needs in order to get elected.

The system can be seen from the results of the 1997 Presidential election result: ⁽⁹⁾

	Per Cent  of Votes
Candidate	First Preference	Second Preference
Mary McAlease Fianna Fail	45.2	58.7
Mary Bonetti Fiannna Gaill	29.3	41.3
Rosemary Scalla	13.8
Adi Roche Labour	7.0
Derek Nally	4.7

The system is certainly cost effective requiring only one ballot however, it could be confusing, and could lead to people simply filling in the boxes in order to fill all of them once they have decided who their first preference is.

The lack of importance of the role of President led to Committee on the Constitution  in 1967 to look at the option of abolishing the direct election of the President in favour of an electoral college.  The Committee heard arguments that the direct election of the President could bring the executive organ into conflict with the directly elected legislature, that as Presidents were members of political parties and thus required their support that an electoral college comprised of politicians such as one comprising of members of the Dail and the Senead (Senate).  It was argued that this would be cheaper and simpler.  It was also felt that a national election could cause hostility to a winning candidate.

However, it was concluded that the direct election of the President should be retained due to such arguments as:

25 (b) The people might feel that they were being deprived of an institution, which was clearly provided for them under the 1937 constitution.  The design of the present constitution clearly envisages that the President would represent the people as a whole, protect them and the constitution against any possible failings on the part of the legislature and be a permanent reminder of the distinction between the Government and the State.  The people might not regard a President elected by the legislature as being sufficiently independent to discharge these functions and they could logically take the view that, if the President is to represent them, then he must be elected directly by them. ⁽¹⁰⁾

The system used for electing the President of The Republic of Ireland does appear to create a great amount of consensus and is relatively cost effective if possibly confusing.  However, as the position is not really an important role in the governing of the country it is difficult to assess how effective it would be in a hotly contested single winner election.  It should also be noted that the Republic of Ireland is a country with a population of between three and four million and is fairly homogenous ethnically and religiously.  It is not clear that this system would be supported in the large and diverse nation that is the United States of America.

“The mismanagement and abuse of the role under the Weimar Constitution led the West Germans who designed the Federal Republic’s constitution to greatly reduce the powers of the President”

FEDERAL REPUBLIC OF GERMANY.

Germany is a classic example of a forward looking western democracy.  A civilised, sophisticated state at the heart of the new Europe.  However, Germany has not always been a democratic nation.  Indeed until 1871 it only existed as a nation in the minds of romantics.  Not until Bismarck used the Franco-Prussian war to frighten the southern states into a union with his Northern League did the original unification take place.

The turmoil of the next seventy-five years did much to shape the constitution of the Federal Republic of Germany, post the Third Reich.  Originally, the Chancellor (Prime Minister) Bismarck having been appointed by the new Emperor Kaiser Wilhelm of Prussia was able to run the country almost at his will, he was not elected to the parliament nor were his ministers.  After the First World War the Weimar Constitution gave power to the Reichstag under the new Republic but retained much power with the Reich President.  The Reich President was elected by the people and had great power over the appointment of the Chancellor, both because of his powers and because of the system of proportional representation used for elections to the Reichstag which caused great instability with the need for coalitions and the rise of small parties most notably the National Socialists.

The mismanagement and abuse of the role under the Weimar Constitution led the West Germans who designed the Federal Republic’s constitution to greatly reduce the powers of the President.

The basic stem on the President’s powers can be found in Article 58 of the Constitution, or basic law as it is called in Germany.

ARTICLE 59

Orders and directions of the Federal President shall require, for their validity, the countersignature of the Federal Chancellor or the appropriate Federal Minister.  This shall not apply to the appointment and dismissal of the Federal Chancellor, the dissolution of the Bundestag under Article 63 and a request made under paragraph (3) of Article 69.  [Article 69 allows a Minister to be bound to continue in his role until a replacement is found.]

The duties of the President are like any Head of State, to represent the Federal Republic of Germany abroad and to tour the country.  However, in terms of concluding treaties under Article 59 treaties have to be ratified by the Bundestag and in effect the decisions  relating to the making of treaties is made by the Government led by the Chancellor.

The President may propose a candidate to be Chancellor under Article 63, who must then be accepted by a majority of the Bundestag.  The President appoints ministers on the advise of the Chancellor under Article 64, appoints and dismisses federal judges, civil servants and soldiers under Article 60 (1) and grants pardons under Article 60 (2).  Importantly, the President has no power over the armed forces as that power rests with the Federal Minister of Defence under Article 65 (a).  The President of the Federal Republic of Germany is in effect a good will ambassador and a dignitary.

Given the reduced powers of the President and the Germans determination to avoid a conflict between the role and the Bundestag, the Parliamentary council adopted the following provision;

ARTICLE 54.

• The Federal President shall be elected, without debate, by the Federal Convention(Bundesversammlung).  Every German who is entitled to vote in Bundestag elections and has attained the age of forty years shall be eligible for election.
• The term of office of the Federal President shall last five years.  Re-election for a consecutive term shall be permitted only once.
• The Federal Convention shall consist of members of the Bundestag and an equal number elected by the Lander (States) according to the principles of proportional representation.
• The Federal Convention shall meet not later than thirty days before the expiration of the term of office of the Federal President or, in the case of premature termination, not later than thirty days after that date.  It shall be convened by the President of the Bundestag.
• After the expiration of a legislative term, the period specified in the first sentence of paragraph (4) of this Article shall begin with the first meeting of the Bundestag.
• The person receiving the votes of the majority of the members of the Federal Convention shall be elected where such majority is not obtained by any candidate in two ballots, the candidate who receives the largest number of votes in the next ballot shall be elected.

ARTICLE 55

• The Federal President may not be a member of the government nor of a legislative body of the Federation or of a Land.
• The Federal President may not hold any other salaried office, nor engage in an occupation, nor belong to the management or the board of directors of an enterprise carried on for profit.

The Federal President of Germany is thus elected not by the people of Germany either directly or indirectly but by a special Convention whose only purpose is that decision and consists of politicians from the various states (Lander) and the members of the German Parliament (Bundestag).  Thus, whilst the Federal President cannot be a member of the legislature, he is elected by legislators both Federal and regional.  There is therefore a clear breach of the doctrine of the separation of powers.

John Ford Golay explains the reasons behind the decision to elect the President in such a manner:

“The provisions for the president’s election by a national assembly, composed of members, of the Bundestag and delegates elected by the Landtage of the Lander, followed from the Parliamentary council’s decision to eliminate from the presidential office all the characteristics tending to make it a focus of power and popular support completing with the Bundestag.  Popular election of the president, and the popular referendum and initiative, were alike condemned as affording opportunities for the unscrupulous demagogue.” ⁽¹¹⁾

It appears that Germany has decided to invest almost all of its power in the parliament, with the executive comprised of members of the Bundestag and led by the Chancellor.  The system has parallels with the fears, which were felt by the French following the Second World War but before De Gaulle’s referendum and the introduction of direct election.  Whilst the French had a fear of Bonapartism, the founding fathers of the Federal Republic feared the all too contemporary ills of the Third Reich, and the position of the Fuhrer created by Adolf Hitler when he unified the offices of Federal President with that of Federal Chancellor in August 1934.

The system now used to elect the Head of State is evidently lacking in direct democracy.  It does however, have elements of representation as the members of the Bundestag are elected representatives and the delegation from the Lander are elected representatives from the states.

The clear difference between the German and the American model is not merely the election system but also the importance attached to the Presidency.  The French President is of crucial importance in French politics, he can essentially control the direction of Government unless as at present there is a situation of cohabitation in which the National Assembly is led by the opposing party.  The French President attends European summits with the Prime Minister whilst German policy is decided by the Federal Chancellor and his or her government in the Bundestag.

The German system has devalued the doctrine of the separation of powers in favour of greater stability, which it has craved since its creation and certainly following the Third Reich and the Second World War. 

Notes

1. See generally; McLaren Carstairs, A. “ A Short History Of Electoral Systems In Western Europe” 1980 George Allen & Unwin, London.   Farrell, David M.  “Comparing Electoral Systems” 1997 Prentice Hall Harvester Wheatsheaf, London.  Lakeman, Enid  “How Democracies Vote – A Study of Electoral Systems” 3rd Edition.  1970, Faber & Faber, London.  Hand G, Georgel J, Sasse C..  “European Electoral Systems Handbook”  1979 Butterworths, London.    LeDuc L, Niemi R.G.  Norris P “ Comparing Democracies” – Elections and Voting in Global Perspectives”  1996, Sage Publications, London.
2. Gaffney, John.  Milne, Lorna.  “French Presidentialism and the Election of 1995” 1997 Ashgate Publishing Ltd, Aldershot at p6.
3. Ibid at p60-62
4. Newland, Robert A.  “Comparative Electoral Systems” 1982, The Arthur McDougall Fund, London at p13.
5. Gaffney, John.  Milne, Lorna.  “ French Presidentialism and the Election of 1995.” 1997, Ashgate Publishing Ltd, Aldershot, Chapter 16.
6. Durerger, Maurice.  “Le Systeme Politique Francais Droit Constitutionel Et Institutions Politique.” 1988, Presse Universitaires de France 19th edition, Paris pp178-181 Ibid at p5.
7. Extract from Dail Debates Vol 67, cols 40 & 51, 11th May 1937 – Mr de Valera’s speech to the Dail.  Taken from O’Reilly J.& Redmond M.  “Cases & Materials on the Irish Constitution 1980 The Incorporated Law Society of Ireland, Dublin at p174.
8. Ibid at p175
9. www.agora.stm.it/elections/election/ireland.htm
10. Ibid at p176
11. Golay, John Ford.  “The Founding of the Federal Republic of Germany.” 1958, University of Chicago Press, Chicago.

United States Electoral College

• INTRODUCTION
• CHAPTER 1. ORIGINS & HISTORY OF THE ELECTORAL COLLEGE
• CHAPTER 2. NOT A PERFECT SYSTEM – THE PROS & CONS OF THE ELECTORAL COLLEGE
• CHAPTER 3. PROPOSALS FOR REFORM
• CHAPTER 4. THE GRASS IS ALWAYS GREENER?
• CONCLUSION

In the fourth part of Dan Heaton’s thesis discussing the United States Electoral College, he looks at Proposals for Reform of the Electoral College.

CHAPTER 3 – PROPOSALS FOR REFORM.⁽¹⁾

Since its inception the Electoral College has been the subject of much debate both in the world of academia and in Congress.  From 1889 until 2000 some 587 constitutional amendments, proposing Electoral College reform have been introduced into Congress.

“The Electoral College discriminates in favour of the less populous states by guaranteeing them at least 3 Electoral Votes.  Thus there is not a proportional distribution of Electoral College Votes between the states based on population.  This creates a situation therefore in which the value of an individual’s vote differs between different states”

A History of Recent Reform Proposals.

Whilst there have been numerous proposals to abolish or reform the Electoral College, these proposals seem to periodically become more prevalent in the midst or aftermath of close or controversial elections.

1969 H.J. RES 681.

This amendment was proposed by Representative Celler during the 91^st Congress.  It provided for the abolition of the Electoral College and its replacement with a direct popular election for President and Vice-President.  In order to win a candidate had to receive not only the most votes but also at least 40% of all votes cast.  Should no one candidate receive the 40% threshold then there would be a runoff between the two leading candidates.  The proposition was defeated in the Senate having passed through the House of Representatives.

It was able to succeed to the extent that it did following the close election of 1968 when the candidacy of George C. Wallace, the American Independent Party Candidate looked as though it might push the election into Congress for a contingent election.

1979 S.J. RES 28., 96^th Congress

This proposal, advocating direct popular election, was approved by the Senate by 51 votes to 48 but this fell short of the two-thirds majority needed for a constitutional amendment.  This proposal followed the close election of 1976 in which Jimmy Carter won with 50.1% of the popular vote and one Republican elector voted for the Libertarian Party candidate. ⁽²⁾

1992 S.J.RES 297, S.J. RES 302 and S.J. RES 312, 102^nd Congress.

In 1992 the prominent candidacy of Ross Perot looked for a time as if it might take the election into Congress for a contingent election.  Thus, hearings were held on all three of the above direct election proposals.

Whilst the above proposals were not successful the recent debacle has again raised the ire of opponents of the Electoral College.  The Florida fiasco has already spawned a number of proposals, which have been introduced in the 107^th Congress since it first met in January 2001.

I propose to use the remainder of this chapter to outline the proposals, which have so far been submitted for consideration and to assess the effectiveness of each in solving the ills of the current system so commonly asserted by its opponents.  In order to achieve this assessment it would be of an advantage to briefly summarise the ills of the Electoral College as examined in depth earlier in this work. [Chapter 2]

The “Faithless“ Electors.

The problem caused by electors voting for candidates other than those to whom they have pledged support.

The Election of a President Who Does not Receive a Majority of the Popular Vote.

It is possible that a candidate may win the presidency without securing a majority of the popular vote, thus in effect a President is elected who more people voted against than for.

The Election of a President Who Does Not Win a Plurality of the Popular Vote.

It is technically possible for a candidate to actually win the Electoral Vote despite the fact that another candidate has won more popular votes than he has. 

Malapportionment and Voter Dilution.

The Electoral College discriminates in favour of the less populous states by guaranteeing them at least 3 Electoral Votes.  Thus there is not a proportional distribution of Electoral College Votes between the states based on population.  This creates a situation therefore in which the value of an individual’s vote differs between different states and thus some people’s votes are diluted.

The “Winner Takes All” System and the Disenfranchising of Minorities.

It is argued that the “Winner Takes All” system of selecting a states electors, whereby all of a state’s Electoral College votes are awarded to the winner of the statewide popular vote disenfranchises minorities.  It is suggested that, the system used in 48 states and the District of Columbia, discriminates against minorities in each state as those who vote against the statewide winner do not have their votes counted towards the election of the President.

The Contingent Election.

The system used to elect a President and Vice-President when no candidate receives a majority of the Electoral Vote.  It is argued that this system is even more disproportionate in favour of the less populous states than the apportionment of Electoral College Votes. This is because, in selecting the President, the House of Representatives vote as states and not as individuals and each state is guaranteed at least 1 Representative no matter what their population and when selecting the Vice-President, the Senators vote as individuals, there are still two Senators per state no matter what its population.

Reform Proposals in 107^th Congress.

There have been a number of reform proposals made in the 107^th Congress, which I will deal with under the following headings:

• Direct Popular Election.
• District Plans.
• Proportional Plans
• Hybrid Plans.

Direct Popular Election Proposals.

There have been two such proposals laid before Congress since January 2001.

H.J. RES 3 107^th Congress, was introduced to the House of Representatives on January 3^rd 2001 and provided as follows:

SECTION 1. The President and Vice President shall be elected by the people of the several States and the district constituting the seat of government of the United States.

SECTION 2. The electors in each State shall have the qualification requisite for electors of Senators and Representatives in Congress from that State, except that the legislature of any State may prescribe less restrictive qualifications with respect to residence and Congress may establish uniform residence and age qualifications.

SECTION 3.  The persons having the greatest number of votes for President and Vice President shall be elected.

SECTION 4. Each elector shall cast a single vote jointly applicable to President and Vice President.  Names of candidates may not be joined unless they shall have consented thereto and no candidate may consent to the candidate’s name being joined with that of more than one other person.

SECTION 5.  The Congress may by law provide for the case of the death of any candidate for President or Vice President before the day on which the President-elect or Vice President-elect has been chosen, and for the case of a tie in any election.

SECTION 6.  This article shall apply with respect to any election for President and Vice President held after the expiration of the 1-year period which begins on the date of ratification of this article.

The amendment proposal establishes direct election “by the people2 through Section 1 and through Section 3 provides that The person having the greatest number of votes” shall be President.  Section 2 would give Congress new powers to set uniform residence requirements and to set a uniform voting age.  Section 4 enshrines the principle of running mates by allowing voters only to vote for one set of joined candidates for the Presidency and Vice Presidency.  Section 5 gives Congress the power to provide a remedy in case of the death of a candidate or if there is an electoral tie.

The proposal does eliminate the possibility that a president can be elected despite another candidate receiving more votes than him.  This is explicit in Section 3 “The persons having the greatest number of votes for President and Vice President shall be elected”.   However, the proposal does nothing to alter the fact that a President can be elected who does not obtain a majority of the votes.  It is quite possible that in only a three way contest that a candidate could obtain as little as 34% of the national vote and still be elected President.  Previous proposals such as H.J. RES 681 91^st Congress in 1969 contained a 40% threshold, that a candidate had to achieve in order to be elected however, this proposal contains no such provision and so a minority President whom most voters voted against could still be elected.

By adopting direct popular election the amendment does eliminate the problem of faithless electors, as the position of elector is abolished.  The problem of malapportionment and voter dilution is effectively circumvented as each vote in the country becomes of equal value and the winner takes all system is abolished along with the states electoral votes.  However, the thorny issue of the contingent election is not totally put to rest by the amendment.  Whilst admittedly the possibility of a tie in a nation-wide popular vote is extremely unlikely the amendment only states that “Congress may by law provide…for the case of a tie in any election.”  Although the adoption of direct popular vote makes this issue practically redundant, the amendment would still allow Congress to decide the fate of the Presidency.

H.J. RES 5 was introduced to the House of Representatives on January 30^th 2001 by Representative Delahunt and provides as follows:

SECTION 1.  The President and Vice President shall be elected by the people of the several States and the District constituting the seat of government of the United States.

SECTION 2.  The electors in each State shall have the qualification requisite for electors of Senators and Representatives in Congress from that State, except that the legislature of any State may prescribe less restrictive qualifications with respect to residence and Congress may establish uniform residence and age qualifications.

SECTION 3.  The name of each candidate for President shall be paired with the name of a candidate for Vice President, and each elector shall cast a single vote for a pair of candidates.  Names of candidates may not be joined unless they shall have consented thereto and no candidate may consent to the candidate’s name being joined with that of more than one other person.

SECTION 4.  The Congress may by law provide for the case of a tie between the two candidates receiving the greatest number of votes for President and Vice President in any election.

SECTION 5.  Each State shall prepare a list of each candidate for President and each candidate for Vice President who received votes in the State and the number of votes each candidate received, and shall sign, certify, and transmit the list to the seat of the Government of the United States, directed to the President of the Senate.  The President of the Senate shall, in the presence of the Senate and House of Representatives, open all of the certified lists transmitted by the States, and the votes shall then be counted.  The persons having the greatest number of votes for President and Vice President shall be elected.

SECTION 6.  Congress shall have the power to enforce this article by appropriate legislation.

SECTION 7.  This article shall apply with respect to any election for President and Vice President held after the expiration of the 1-year period which begins on the date of the ratification of this article.

H.J. RES 5 also establishes direct popular election of the President and Vice President, however, it does not empower Congress to provide for cases in which a candidate dies.  The article provides a procedure for vote counting similar to that of the current system with the states counting the votes and sending the results to Congress to be collated.  The article also differs from H.J. RES 3 in that it provides for Congress to enact legislation to enforce the amendment.  This provision simply provides that the candidate who receives the most votes shall be the winner.  There is no requirement for a majority of votes or even a threshold and so the possibility of a minority President remains.

Both of the above direct popular election proposals currently before Congress are open to the usual criticisms that direct election proposals face.  Direct election detracts from the federalist nature of the Union, the candidates may only give weight to the opinions of voters in the most populous regions and so can be elected without obtaining broad nationwide support.  Direct election may also detract from minority interests in that by definition a candidate will wish to appeal to the vast majority of the electorate  and a nationwide vote may require a national, costly and time consuming recount.

H.J. RES 5 may circumvent the problem of costly recounts by specifying that the states should count the votes, however, as neither proposal requires a majority of votes to win nor sets a threshold a candidate could be elected with a relatively low percentage of the national vote.  Whilst the direct election should encourage more candidates and therefore a greater choice, a system which does not require a majority of votes or even set a threshold will still see candidates such as Ralph Nader seen as wreckers.  A system without preferential voting or a run off will see a vote for a minority candidate directly detract from another candidate and thus the two party system would probably be maintained with voters voting for the candidate they perceive as the lesser of two evils rather than their preferred candidate just as at present.

District Plan Proposals.

H.J. RES 1 was introduced in the House of Representatives on January 3^rd 20001 by Representative Clyburn and proposes the following:

SECTION 1.  In an election for President and Vice President, each State shall appoint two Electors to vote for the candidates for President and Vice President who received the greatest number of popular votes cast in the State for such election and, for each congressional district established pursuant to section 2 of this article, one Elector to vote for the candidates for President and Vice President who received the greatest number of popular votes in that district.

SECTION 2.  For purposes of section 1 of this article, each State shall by law establish a number of districts equal to the number of Representatives in Congress to which such State is entitled.  All such districts shall be established by the States at such intervals as the Congress by law provides.  Any district established for the election of Representatives in Congress as of the date of the ratification of this article shall be considered to be established pursuant to this section.

SECTION 3.  For purposes of this article, the District constituting the seat of Government of the United States shall be treated as if it were a State, except that the number of electors for the District may not exceed the number of electors for the least populous State.

SECTION 4.  The Congress may by law provide for the case of the death of any candidate for President or Vice President before the day on which the President-elect or Vice President-elect has been chosen, and for the case of a tie in any election.

SECTION 5.  The Congress shall have the power to enforce this article by appropriate legislation.

SECTION 6.  This article shall apply with regard to any election for President and Vice President that is held more than one year after the date of the ratification of this article.

Under this proposal the President and Vice President would be elected under a district plan system.  Under the district plan two Electoral College votes representing a state’s Senators would be awarded to the winner of the statewide popular vote whilst those Electoral College Votes representing a state’s Representatives would be allocated to the winners of those electoral districts.  Under Section 2 however, the districts, at the state’s discretion. Could be the existing Congressional Districts or ad hoc electoral districts created for the presidential election, equal in number to the Congressional Districts.  Under Section1 the office of Presidential Elector is retained and under Section 4 the Contingent election process is retained for the purposes of a tie.  There is no provision for electoral running mates as there is no requirement for a single joint vote and very importantly there is no requirement for the winning candidate to receive a majority of the Electoral Votes.  Under Section 4 the contingent process is only used in the case of a tie.

This system would maintain the concept of federalism, but would retain the much maligned contingent election and would allow the possibility of a minority President, not only in terms of the national popular vote but also in the Electoral College.  The system would enhance minority interests as it is likely that they would be of a sizeable portion of the voters in many of the districts, assuming that there was no gerrymandering, however, the less populous states would still be over represented. 

H.J.RES 18 was introduced in the House of Representatives on February 13^th 2001 by Representative Engel and states as follows:

SECTION 1.  In an election for President and Vice President, each State shall appoint two Electors to vote for the candidates for President and Vice President that received the greatest number of popular votes in that State and, for each congressional district established under section 4 of this article, one Elector to vote for the candidates for President and Vice President that received the greatest number of popular votes in that district.  The candidate having the greatest number of electoral votes for President shall be the President.  The candidate having the greatest number of electoral votes for Vice President shall be the Vice President.

SECTION 2.  If two or more candidates receive an equal number of electoral votes for President and such number is greater than the number of such votes received by any other candidate, then from the candidates who receive such equal number of votes the House of Representatives shall choose immediately, by ballot, the President.  But in choosing the President, the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice.

SECTION 3.  If two or more candidates receive an equal number of electoral votes for Vice President and such number is greater than the number of such votes received by any other candidate, them from the candidates who receive such equal number of votes the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

SECTION 4.  Each State shall by law establish, for the election of Representatives in the Congress and for purposes of section 1 of this article, a number of districts equal to the number of Representatives to which such State is entitled.  All such districts shall be established by the States at such intervals as the Congress by law provides.  Any district established for the election of Representatives in the Congress as of the date of the ratification of this article may be considered to be established pursuant to this section.

SECTION 5.  For purposes of this article other than sections 2 and 3, the District constituting the seat of Government of the United States shall be treated as if it were a State, except that the District may not appoint a number of Electors greater than the number of Electors appointed by the least populous State.

SECTION 6.  The Congress shall have the power to enforce this article by appropriate legislation.

SECTION 7.  This article shall apply with regard to any election for President and Vice President that is held more than one year after the date of the ratification of this article.

This proposal also provides for the election of the President and the Vice President by use of a district plan.  Like H.J. RES 1 it does not require that the winners obtain a majority of the electoral votes, merely requiring that the candidates with the most electoral votes are the winners.  It also explicitly maintains the current contingent election process in case of a tie, maintaining the 12^th Amendment provision of one state one vote in the House for electing the President.

The proposal is therefore open to the same criticisms as H.J. RES 1 especially in that it allows a candidate to win the Presidency without receiving a majority of the electoral votes never mind a majority of the popular vote.

H.J. RES 37 was introduced in the House of Representatives on March 13^th 2001 by Representative Clement and proposes the following:

SECTION 1.  In an election for President and Vice President, each State shall appoint one elector for each district in that State represented by a member of the House of Representatives.  Each elector shall cast a vote for the candidates for President and Vice President who received the greatest number of popular votes in that district.

SECTION 2.  Each State shall appoint two electors who shall each cast a vote for the candidates for President and Vice President who received the greatest number of popular votes in that State.

SECTION 3.  Electors for the District constituting the seat of Government of the United States as provided by the twenty-third article of amendment shall each cast a vote for the candidates for President and Vice President who received the greatest number of popular votes in the District.

SECTION 4.  If no candidate for an office receives a majority of the votes cast by the electors, then from the two candidates for that office receiving the highest number of electoral votes, the House of Representatives shall choose immediately, by ballot, one candidate who shall serve in that office.

SECTION 5.  If ratification of this article by three fourths of the several States occurs within the calendar year of a Presidential election, this article shall not take effect until the following Presidential election.

SECTION 6.  Congress shall have the power to enforce this article by appropriate legislation.

This article proposes use of a district system.  It differs from the previous two district plan proposals in that it requires the District of Columbia votes to be given to the District wide winner no matter how many votes the District may be entitled to in the future.  The amendment also provides that a candidate must obtain a majority of the electoral votes in order to win the Presidency.  The system proposed also maintains an adapted contingent election process.  In the new version of the contingent election the House of Representatives would vote for both President and Vice President leaving the Senate out of the process.  The House would also implicitly vote as individuals rather than as states.

The system proposed in H.J.RES 37 still allows the possibility of a minority president and even one who received less popular votes than the loser, however, this is reduced because of the better representation of the minority vote in the several states.  Such outcomes are also possible in the case of a contingent election but this is somewhat more representative because the vote would be taken by individuals rather than over-representing the smaller states and the removal of the Senate from the process.

Overall the district plan proposals are more representative of minorities than the winner takes all system.  It allows minorities whether they be inner city ethnic or rural communities more leverage in that they are able to gain representation through the congressional district electoral votes.  Nonetheless, the issue remains that a minority President can be elected and a winner of the national vote may also lose although the likelihood is greatly reduced.

Proportional Plan.

H.J RES 17 was introduced to the House of Representatives by Representative Engel on  February 13^th 2001 and provides: as follows:

SECTION 1.  In an election for President and Vice President, each State shall appoint a number of Electors to vote for each candidate for President or Vice President that bears the same ratio to the total number of Electors of that State as the number of votes received by that candidate bears to the total number of votes cast in that State.  Each State shall make computations for purposes of carrying out this section in accordance with such laws as it may adopt, including laws providing for the allocation of Electors among more than two candidates receiving 5 per cent or more of the total number of votes cast in the State under such criteria as the State may by law establish, except that fractional numbers less than one one-thousandth shall be disregarded.  The candidate having the greatest number of electoral votes for President shall be the President.  The candidate having the greatest number of electoral votes for Vice President shall be the Vice President.

SECTION 2.  If two or more candidates receive an equal number of electoral votes for President and such number is greater than the number of such votes received by any other candidate, then from the candidates who receive such equal number of votes the House of Representatives shall choose immediately, by ballot, the President.  But in choosing the President, the votes shall be taken by States, the representation from each State having one vote, a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice.

SECTION 3.  If two or more candidates receive an equal number of electoral votes for Vice President and such number is greater than the number of such votes received by any other candidate, then from the candidates who receive such equal number of votes the Senate shall choose the Vice President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

SECTION 4.  For purposes of this article other than sections 2 and 3, the District constituting the seat of Government of the United States shall be treated as if it were a State, except that that the District may not appoint a number of Electors greater than the number of Electors appointed by the least populous State.

SECTION 5.  The Congress shall have the power to enforc1e this article by appropriate legislation.

SECTION 6.  This article shall apply with regard to any election for President and Vice President that is held more than one year after the date of the ratification of this article. 

This proposal would adopt a proportional system to elect the President and Vice President.  Essentially, the candidates would receive the proportion of state’s electoral votes in ratio to the proportion of the popular votes they received in that state.  The proposal would however, require a candidate to obtain five per cent of a state’s popular votes before receiving any of that state’s electoral votes.  The amendment does not require that the winner should have a majority of the electoral vote or any minimum percentage of the popular vote, therefore a President could be elected who received fewer popular votes than another candidate, and a minority president both in terms of electoral and popular votes is possible.  The system also maintains the current contingent election system in Congress in the event of an electoral tie. 

The system does protect minorities in that every vote in a state, no matter where in that state it is cast, is of equal value in that state and it also maintains the federalist principal.  The system does deter third party candidates, as they would require five per cent of the popular votes in a state before obtaining any electoral votes.  However, this helps to require a candidate to obtain a broad base of support as whilst a candidate may obtain large percentages in some states they would be wise to attempt to obtain at least that vital five per cent of the vote instates in which they are less popular.

A Hybrid Proposal.

H.J. RES 25 was proposed by Representative Leach on March 1^st 2001 and included the following provisions:

SECTION 1.  The President and Vice President shall be elected in accordance with this article by the people of the several States and of the District constituting the seat of Government of the United States.  The electors in the District shall have such qualifications as Congress may by law prescribe, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.

SECTION 2.  On the day designated by Congress for holding an election for President and Vice President, each elector shall cast a single vote jointly applicable to a pair of candidates for President and Vice President.  The candidate for President and the candidate for Vice President shall be clearly indicated within each pair.  The names of candidates for President and Vice President shall not be joined as a pair unless both candidates shall have consented thereto and no name of a candidate may be joined with that of more than one other person.

SECTION 3.  The times, places, and manner of holding an election for President and Vice President shall be regulated in the District by Congress, and in each State by the legislature thereof, except that Congress may at any time make or alter such regulations.

SECTION 4.  Each State shall have the number of electoral votes that is equal to the number of Senators and Representatives in Congress to which such State is entitled.  The District shall have the number of electoral votes that is equal to the number of Senators and Representatives in Congress to which the District would be entitled if it were a State.  The legislature of each State shall determine whether to apportion the electoral votes of such State in accordance with the provisions of Section 5 or section 6.

SECTION 5.  The legislature of any State may determine to, and the District shall, apportion all of the electoral votes of such State or the District to the pair of candidates for President and Vice President that received the greatest number of votes in such State or District.

SECTION 6.  The legislature of any State may determine to apportion two of the electoral votes of such State to the pair of candidates for President and Vice President that received the greatest number of votes in such State, and to apportion one electoral vote, for each district from which a Representative from such State is elected, to the pair of candidates for President and Vice President that received the greatest number of votes in such district.

SECTION 7.  The chief executive of each State and the District shall, within thirty days after an election for President and Vice President, transmit a signed and sealed certificate to the President of the Senate stating the number of electoral votes of such State or District that are apportioned to each pair of candidates for President and Vice President, and the total number of votes received in such State or District by each pair of candidates for President and Vice President.  The President of the Senate shall, in the presence of the Senate and House of representatives, open all the certificates and announce the contents.

SECTION 8.  The pair of candidates for President and Vice President who received the greatest number of votes, with such number determined by calculating the sum of the total number of votes received by each pair of candidates for President and Vice President in each State and the District and required to be stated in the certificates to the President of the Senate, shall be apportioned a number of additional electoral votes equal to the product of two times the sum of the number of States and the District.

SECTION 9.  The pair of candidates for President and Vice President receiving the greatest number of electoral votes shall become President and Vice President, if such number be a majority of the sum of the number of additional electoral votes and the number of apportioned electoral votes required to be stated in the certificates to the President of the Senate.

SECTION 10.  If no pair of candidates for President and Vice President receives such majority, then the House of Representatives shall choose immediately, by ballot, the President from the candidates for President, not exceeding three, receiving the highest number of electoral vote when paired with a candidate for Vice President, and the Senate shall choose the Vice President from the candidates for Vice President receiving the two highest number of electoral votes when paired with a candidate for President.  In choosing the President, one round of votes shall be taken first by State, the representation from each State having one vote.  A quorum for such purpose shall consist of a member or members from two-thirds of the States, and a majority of all States shall be necessary to a choice.  If no candidate for President receives such majority, then the House of Representatives shall choose immediately, by ballot, the President from the same such candidates, with each Representative having one vote.  A quorum for such purpose shall consist of two-thirds of the whole number of Representatives, and a majority of the whole number of Representatives shall be necessary to a choice.  In choosing the Vice President, each Senator shall have one vote, a quorum shall consist of two-thirds of the whole number of Senators, and a majority of the whole number of Senators shall be necessary to a choice.

SECTION 11.  This article shall apply with respect to any election of a President and Vice President to a term of office commencing later than two years after the date of the ratification of this article. 

This proposal provides States with a choice of how to allocate their electoral votes.  Under Section 5 they may use the current winner takes all system or under Section 6 they may use the district plan.

The proposal includes an innovation in that an extra 102 national electoral votes would be awarded to the candidate who won the most national popular votes.  Thus the winner of the election would be the candidate who won a majority of all the votes, the currently allocated electoral votes plus the national bonus votes. 

The resolution also alters the contingency election process.  The process retains the House of Representatives choosing the President from the top three candidates, and the Senate choosing the Vice President from the top two candidates.  However, if there is no winner in the House of Representatives then the Representatives vote again but as individuals rather than as States.

The proposal in giving the States a choice on how to allocate their electoral votes in fact would make very little difference as they already have this choice.  Nebraska and Maine use the district system whilst the other 48 States and the District of Columbia use the winner takes all.  The only thing that the provision does is to in effect ban a State from using a proportional system.

The bonus scheme proposal whereby 102 extra votes would be awarded to the winner of the national popular vote, would in effect take away the possibility of a candidate winning the national popular vote but losing the electoral vote as in a close election the 102 extra votes would more than outweigh any difference in the electoral vote.

However, the system does not guarantee that the winner will have a majority of the popular vote and the problem of malapportionment still exist even if to a lesser extent.  The use of the national vote could result in numerous recounts if it becomes crucial in a close race.

“none of the current proposals before Congress are a panacea to the defects which opponents of the Electoral College denounce so vehemently”

It is clear that none of the current proposals before Congress are a panacea to the defects which opponents of the Electoral College denounce so vehemently.  All of the proposal have their advantages, whether it be greater representation of minorities whilst maintaining the concept of federalism in district plans or the simple appeal of one man one vote as in the direct election proposals. 

In the next chapter I shall look at the systems by which the sneering European “democracies” select their heads of state in order to see whether the United States can learn anything and whether indeed the Europeans have the right to be so complacent about their own systems.

Notes

1. See generally CRS Report for Congress RL 30804 “ The Electoral College: An Overview and Analysis of Reform Proposals” January 16, 2001 L. Paige Whitaker & Thomas H. Neale & Specifically CRS Report for Congress “The Electoral College: Reform Proposals in the 107^th Congress”  March 13^, 2001, Thomas H. Neale.
2. See  earlier “Faithless Elector”

United States Electoral College

• INTRODUCTION
• CHAPTER 1. ORIGINS & HISTORY OF THE ELECTORAL COLLEGE
• CHAPTER 2. NOT A PERFECT SYSTEM – THE PROS & CONS OF THE ELECTORAL COLLEGE
• CHAPTER 3. PROPOSALS FOR REFORM
• CHAPTER 4. THE GRASS IS ALWAYS GREENER?
• CONCLUSION

In the third part of Dan Heaton’s thesis discussing the United States Electoral College, he looks at the Pros & Cons of the Electoral College.

CHAPTER 2 – NOT A PERFECT SYSTEM – THE PROS & CONS OF THE ELECTORAL COLLEGE.

“The impetus for abolishing the electoral college is as strong as it is simple.  No sane electoral system awards victory for second place.  Indirect presidential elections made sense, if ever they did, only in the early American republic.  Voters today should be trusted to cast a straightforward vote for a presidential candidate rather than for a panel of occasionally faithless and invariably faceless electors.” ⁽¹⁾

This view expressed by Professor Jim Chen of the University of Minnesota Law School on 22^nd November 2000 in light of the Florida fiasco has been echoed by numerous academics and commentators, both legal and political, since the 2000 election.  The case for the abolition or reform of the Electoral College has been argued, if out of sight of the public, ever since its creation.  There are those who believe that the Electoral College is inherently flawed and should be abolished out of principle and there are those who believe that it should be abolished or reformed because it is damaging democracy.  There are however, numerous advocates of the Electoral College who see the events of November 2000 as merely a blip in an otherwise fair and equitable system which allows the people a voice but also maintains the federalist nature of the Constitution and that it should be maintained at all costs.

In this chapter I shall assess the disadvantages of the Electoral College system as voiced by its detractors and the its advantages as espoused by its supporters. 

“They always voted at their Party’s call

And never thought of thinking for themselves at all:

As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.”

The Disadvantages of the Electoral College.

The Faithless Electors.

One of the main arguments against the Electoral College put forward by its opponents is the issue of faithless electors.  They find it to be an affront to the practice of popular elections that an elector pledged to vote for one candidate should then cast their vote for another against the wishes of the electorate.  Mr Justice Jackson in his dissenting judgment in the case of Ray v Blair (2) (1852) stated the role of elector as he saw it historically:

“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its texts, that electors would be free agents, to exercise an independent and non-partisan judgment as to the men best qualified for the nations highest offices.  This arrangement miscarried.  Electors, although often personally eminent, independent, respectable, officially became voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire:

They always voted at their Party’s call

And never thought of thinking for themselves at all:

As an institution the Electoral College suffered atrophy almost indistinguishable from rigor mortis.” ⁽³⁾ 

Thus as Justice Jackson states so eloquently it is rare that an elector votes against their pledged candidate.  However, over the years, the faithless electors have continued to appear sporadically and for their differing reasons, although fortunately none as yet have made a difference to the outcome of an election.  The occasions when electors have not fulfilled their pledge may be rare but have occurred as recently as 2000.  The fact that the political party organisations have continued to nominate people who could not be trusted remains astounding.  Here are some instances of faithless electors from recent the last century:

• 1948 – Preston Parks, a Democratic Party from Tennessee, voted for Governor Strom Thurmond of the States’ Rights ticket instead of Harry S. Truman.
• 1956 – W. F. Turner, Democratic elector in Alabama, voted for a local judge instead of Adlai E. Stevenson.
• 1960 – Henry D. Irwin, an Oklahoma Republican attempted to stop Kennedy from being elected by organising conservative Democrats to vote for Harry Byrd , the Democratic Senator for Virginia.  However, in the end only he voted for Byrd and Kennedy was elected.
• 1968 – Dr Lloyd W. Bailey, a Republican elector from North Carolina, voted for George Wallace of the American Party instead of his pledge Richard Nixon.  He alleged that he did this because the Congressional District in which he lived had voted for Wallace, but it is believed that he was against the incoming Nixon appointing Henry Kissinger. ⁽⁴⁾
• 1972 – Roger MacBride, a Virginian elector for Richard Nixon decided to vote for John Hosper of the newly formed Libertarian Party.
• 1976 – Mike Padden who was a Washington Republican, pledged to vote for Gerald Ford, who instead voted for Ronald Reagan bizarrely as a protest against the winner, Democrat Jimmy Carter, in order to highlight his own Pro-Life views.
• 1988 – Margarette Leach, a Democratic elector for West Virginia, decided to highlight the fact that electors could vote for whoever they like by reversing her vote and voting for Senator Lloyd Benson of Texas {the Democratic Vice-Presidential candidate} for President and Michael Dukakis {the Democratic Presidential candidate} for Vice-President.  It was of no consequence however, as George Bush Senior had already won.
• 2000 – Barbara Lett-Simmons, an Al Gore pledged Democratic Party elector from the District of Columbia, abstained by casting a blank ballot, presumably in protest at the Florida fiasco.

Some states have tried to circumvent the potential problem by endeavouring to bind their electors through their state laws.  New Mexico, North Carolina, Oklahoma, South Carolina and Washington now demand that electors pledge to vote for their party and have sanctions available for breach.  The District of Columbia, Florida, Massachusetts, Mississippi and Oregon all require a formal pledge but do not back this up with any legal sanctions.  Alabama, Alaska, Colorado, Maine, Maryland, Montana, Vermont and Wyoming direct their electors to support the winning ticket and California, Connecticut, Hawaii, Michigan, Ohio, Virginia and Wisconsin direct the electors to vote for the party which they represent. ⁽⁵⁾ [CRS  Report for Congress RL 30804 p9]

Thus 24 of the 50 states do not impose upon the electors any duty to vote in a particular way and in effect leave them as free agents.  It is also unclear as to whether the sanctions imposed by some states are constitutional.  However, the Supreme Court in Ray v Blair (1952) ⁽⁶⁾ ruled that a state can mandate a political party to exclude from their nominees for electors anyone who refuses to make a formal pledge to vote for their candidate.

The faithless elector argument espoused by opponents of the Electoral College undoubtedly has some merit because potentially, in a close election, if enough electors broke their pledges then they could affect the result of the Electoral vote and the presidency.  However, no elector has yet managed to change the outcome of an election and most faithless electors have simply cast bizarre votes as protests, with the outcome of the election already decided.

The fear of a potential coup by faithless electors could be circumvented without changing the essence of the Electoral College, by adopting an automatic plan.  Under such a scheme, which I will assess in more detail later, the Electoral College votes are simply awarded on the basis of the statewide ballot with the intermediary office of elector being abolished.

“This occurred in 1992 to Bill Clinton because of the strong candidacy of Ross Perot.  There was a clear Electoral College winner but Clinton received less than 50% of the popular vote”

The Election of a President Who Fails To Receive a Majority of the Popular Vote.

Opponents of the Electoral College argue that the system allows the possibility a candidate being elected with less than 50% of the popular vote, a plurality winner.  This is again a meritorious argument with minority winners becoming more likely with the rise of third party candidates.

A minority President can be and indeed has been elected in three ways.  Firstly, in 1824 a minority President was elected because America was so divided that there were more than two strong candidates.  No candidate received a majority of electoral votes and so Congress was forced to decide from amongst the candidates, whom should be President, eventually selecting John Quincy Adams.

Secondly, it is possible to elect a minority President, if, as in 1888, one candidate wins heavily in some states and loses narrowly in others, thus whilst winning the popular vote, losing in the Electoral College.

Thirdly, it is possible to elect a minority President whenever a third party candidate takes enough popular votes away from the two main party candidates that even if there is a clear popular and electoral winner, in fact the winner still does not obtain a majority of the popular vote.  This occurred in 1992 to Bill Clinton because of the strong candidacy of Ross Perot.  There was a clear Electoral College winner but Clinton received less than 50% of the popular vote.  Indeed, in 2000 whilst Al Gore did obtain more popular votes than George W Bush he only obtained 48.38% of the national popular vote, primarily because of the Green Party candidate Ralph Nader who polled 2.74% of the national vote.

The possibility of electing a minority President will not be diminished, simply by abolishing the Electoral College.  The situation could still occur in a direct election.  The only way that a majority President could be guaranteed would be by having second ballots which would be expensive or by using a preferential ballot paper on which candidates are ranked in order of preference.  I will assess the viability of such a proposal later in this work.

A Candidate Can Win The National Vote But Lose The Election.

The 2000 Presidential Election was not the first time that a candidate has been elected having received fewer popular votes than their rival.

In 1876 Samuel Tilden received more popular votes than Rutherford B. Hayes but Hayes won by one electoral vote due to the Colorado Legislature selecting electors to save money, having only just joined the Union.

In 1988 Democrat Grover Cleveland won more popular votes than Republican Benjamin Harrison but Harrison was able to win the Presidency through the Electoral College.  This was due to Cleveland winning heavily in some states and Harrison winning narrowly in others.

However, the issue had remained a purely academic and theoretical possibility for over a century until the 2000 when the election became too close to call and the final tally of Florida became so crucial.  It is probably the issue that caused the most anguish amongst commentators because of the simplicity of the argument that the winner should have won.

It appears to European observers as if American democracy is a sham.  The most basic rule of democracy is that he who receives the most votes should win.  However, it should be remembered that the United States is a federal state and that the founding fathers wished  that the President should have broad national support.

The problem of a President being elected with fewer votes than his rival could be avoided through national direct election, but should there be a similarly close contest it could result in a costly and time consuming national recount.  Such a situation would make the Florida scenario pale into insignificance. 

Malapportionment and Voter Dilution.

It is argued by detractors that the Electoral College system of guaranteeing each state at least 3 electoral votes, thus not being completely proportional, is a malapportionment of representation.

Essentially they believe that the lack of equality of voting power, a dilution of the value of a persons vote, is contrary to the Equal Protection Clause of the 14^th Amendment., which states:

“…No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any persons of life, liberty, or properly, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws….”

Since the 1960’s state legislatures have been forced to have reasonable equality of representation. ⁽⁷⁾ In the case of Reynolds v Simms (1964) ⁽⁸⁾ the Alabama state legislature had its apportionment of districts deemed unconstitutional by the Supreme Court.  Chief Justice Earl Warren  stated:

“To the extent that a citizen’s right to vote is debased, he is that much less a citizen.  The fact that an individual lives here or there is not a legitimate reason for overweighting or diluting the efficiency of his vote.  The complexions of societies change, often rural in character becomes predominantly urban.  Representation schemes once fair and equitable became archaic and outdated.  But the basic principle of representative government remains, and must remain, unchanged – the weight of a citizen’s vote cannot be made to depend on where he lives.  Population is, of necessity, the starting point for consideration and controlling criteria for judgment in legislative apportionment controversies.  A citizen, a qualified voter, is no more no less so because he lives in the city or on the farm.  This is the clear and strong command of our Constitution’s Equal Protection Clause.  This is an essential part of the concept of a government of laws and not men.  This is at the heart of Lincoln’s vision of “government of the people, by the people [and] for the people”….” ⁽⁹⁾

It would appear that there could be some argument that the Electoral College does discriminate against people who live in more populous states as their individual votes are not of equal value to those of people in less populous states.  However, the above rulings only relate to state legislatures and indeed a strict interpretation of the Fourteenth Amendment only declares that states should provide equal protection, and not that the United States should. 

It appears therefore that whilst the Electoral College does break the spirit of Equal Protection it does not in fact breach the 14^th Amendment.

“Winner Takes All” and The Disenfranchising of Minorities.

One argument put forward against the Electoral College is that it discriminates against minorities.  This it is argued is because of the almost universal use of the “Winner Takes All” system of selecting electors.  It is clear that a voter who votes for the losing candidate under that system does not have their voice heard.  However, Matthew M. Hoffman argues that the “Winner Takes All” system coupled with his assertion that people vote along racial lines (blacks voting for the Democrats and whites predominantly for the Republicans) means that racial minorities do not have their voice heard.  He also argues that the unit voting system is illegal under The Voting Rights Act 1965. ⁽¹⁰⁾  

However, given that minorities tend to live in the most populous states then they have the ability to swing the vote in these most crucial of states.  Therefore, their votes are of great value to candidates who would surely wish to appeal to them.  Nonetheless, it is true that literally millions of people in a state can vote for the losing candidate and not receive any representation in the College.  Victor Williams and Alison m. MacDonald  argue that that is unrepresentative:

“The winner-take-all state unit voting methodology of the electoral college is an inherently unfair and unjust vote weighting system that clearly dilutes the non-majority votes of each state….  [T]he winner-takes-all state unit electoral college voting is an obvious violation of the principle that one persons vote should have the same value as another’s.” ⁽¹¹⁾

It is often argued that the system depresses voter turnout.  It is suggested that in states, which continually return electors from the same party that voter turnout, is depressed because people of a different persuasion do not vote.  However, even according to figures compiled by The Center for Voting and Democracy, who are against the Electoral College, Presidential elections consistently attract higher turnouts than Congressional elections. ⁽¹²⁾ It is therefore suggested that the poor voter turnout figures in the United States are a result of a lack of belief or interest in the political system in general rather than simply being the fault of the Electoral College.

The Contingent Election.

The contingent, election used in cases where no candidate receives a majority of the electoral votes is a much criticised procedure.  Opponents of the contingent election argue that it is inherently undemocratic because each state’s congressional delegation has only one vote between them and thus gives a very disproportionate voice to the smaller states.   This is undoubtedly the case and is far more disproportionate than the College itself.  However, it is all part of the federal nature of the United States and because of the two party system now prevalent in the country it has not been used since 1824.

There can be no doubt that there are some very cogent arguments against the Electoral College which can be summed up in Mr Justice Jackson’s comments in Ray v Blair (1952) ⁽¹³⁾

“The demise of the whole electoral system would not impress me as a disaster.  At its best it is a mystifying and disturbing factor in presidential elections which may resolve a popular defeat into an electoral victory.  At its worst it is open to local corruption and manipulation once so flagrant as to threaten the stability of the country.  To abolish it and substitute direct election of the President, so that every vote wherever cast would have equal weight in calculating the result, would seem to me a gain for simplicity and integrity of our governmental process.”

There are however, numerous arguments in favour of the system.

The Advantages of the Electoral College.

Despite, the recent debacle and the democratic arguments used against the Electoral College, the system still has its vociferous advocates  whose arguments are a mixture of theoretical and practical positives.

Election Requires a Broad Range of Support.

Proponents of the Electoral College point to the fact that in order to win the

Presidency a candidate must acquire a broad geographical support.  The United States of America has a vast geography, with different climates, terrains and cultures.  America has large urban areas, industrial towns but also vast agricultural regions.  In order to become President, under the Electoral College, it is suggested that a candidate must obtain support from both the urban population centres and the agricultural belt.  The winning candidate must thus appeal to more than one section of society or one region of the country in order to obtain election.  The President would thus be aware of the issues affecting the whole country and therefore better able to govern the nation as a whole.

John Samples, Director of the Center for Representative Government at the Cato Institute echoes many Electoral College supporters:

“…We must keep in mind the likely effects of direct popular election of the president.  We would probably see elections dominated by the most populous regions of the country or by several large metropolitan areas.  In the 2000 election, for example, Vice President Gore could have put together a plurality or majority in the Northeast, parts of the Midwest, and California.

The victims in such elections would be those regions too sparsely populated to merit the attention of presidential candidates.  Pure democrats would hardly regret that diminished status, but I wonder if a large and diverse nation should write off whole parts of its territory.  We should keep in mind the regional conflicts that have plagued large and diverse nations like India, China, and Russia.  The Electoral College is a good antidote to the poison of regionalism because it forces presidential candidates to seek support throughout the nation.  By making sure no state will be left behind, it provides a measure of coherence in our nation.” ⁽¹⁴⁾ 

Whilst it is probable that more attention would be given to the most populated areas in a direct election, comparisons with third world and communist or ex-communist countries are alarmist to say the least.  It may well be that in the early days of the Union it would have been possible for the country to be split. Indeed this happened with the civil war, but with increased mobility and improved communications the country is effectively a lot smaller and less diverse than it used to be.  It is worth noting also that apart from the Native Americans, the population is of fairly recent immigrant descent and thus, regional and ethnic disputes of the nature seen in Russia and India are hardly plausible.

Federalism and The Separation of Powers.

The United States of America is a union of sovereign states and as such has at its core a federal system of government.  The Electoral College is a compromise between national and state interests and therefore acts as an important balance.  The Electoral College was designed to represent the states’ choice for president.  However, it achieves this through the distribution of electoral votes based on representation in congress and thus guarantees a voice for the small states whilst giving weight to the more populous states.  It is argued by its supporters that to abolish the Electoral College would be a breach of the crucial balance between state and national government.

As well as being part of the overall federal structure of the union it is also argued that it plays a part in the application of the doctrine of the separation of powers.  This is because in the United States the separation of powers is not merely between the executive, legislature and the judiciary but also between the national and state governments.  This division acts as a second level of protection against too much power being concentrated in the hands of any one group of people.  Its proponents argue that to abolish the Electoral College would simply give the most populous states complete control over the appointment of the Chief Executive of the whole Union, which would give those states undue influence over others, and would be a breach of the very essence of federalism.  John C. Eastman  of the Claremont Institute states the federalist argument as follows:

“Congress, for example, is divided between two branches, only one of which is apportioned by population while the other, the Senate, is constituted by the distinctly non-majoritarian  allotment of seats to States of vastly different populations.  This, the founders believed, served to check the raw passions of a majority that might gain sway in the House of Representatives and use its majority power to trample the rights of minorities.  And it served to protect the States as a fundamental component of our constitutional system, able to check the power of the national government and thereby help ensure liberty.

The same concern with raw power underlies the constitutional doctrines of enumerated powers, of federalism, of an independent, non-elected judiciary, and yes, of the Electoral College.  Indeed, the Electoral College is part and parcel of the entire constitutional structure.” ⁽¹⁵⁾

“In the 2000 election the Green Party candidate Ralph Nader obtained 2.74% of the popular vote and yet received no Electoral College votes.  He may well have achieved more popular votes if people actually believed that he could obtain electoral votes”

Political Stability.

Supporters of the Electoral College point to the relative political stability  that the United States has enjoyed compared to other “democracies”.  They argue that this stability is aided by the Electoral Colleges tendency to exacerbate the two party system.  They point to the fact that minor parties have very little chance of obtaining any electoral votes, as a deterrent to extremist parties.  They suggest that this leads to interest groups having to bring themselves under the umbrella of one of the major parties.  Whilst their views are then heard, they have to abandon their more extreme views and most radical policies in favour of more practical consensual policies.  According to the argument, what the United States has in the shape of the Democrats and the Republicans are two practical coalitions, who essentially share the same ideology and aims only differing through methodology.  Therefore, the argument goes, the two party system avoids major changes in policy whenever there is a change of government, thus leading to greater continuity.

Whilst it is true that the United States is a relatively stable democracy, the two party system as exacerbated by the Electoral College does however limit voter choice.  In effect anyone who does not agree with either of the two major candidates has no way of gaining representation through the ballot box.  In the 2000 election the Green Party candidate Ralph Nader obtained 2.74% of the popular vote and yet received no Electoral College votes.  He may well have achieved more popular votes if people actually believed that he could obtain electoral votes.   It would appear that the political stability, allegedly achieved through the Electoral College, is achieved at the expense of effective electoral choice. 

The Electoral College Webzine, a website espousing the benefits of the College states that:

“Whilst the Electoral College tends to produce candidates that look like Tweedledum and Tweedledee, direct election would produce a choice between Pat Buchanan and Pat Robertson or Jesse Ventura and Jesse Jackson.” ⁽¹⁶⁾

Notwithstanding the adversarial nature of some of the aforementioned, it could be argued that at least these characters might raise the level of interest in political life in the United States and lift the poor voter turnout figures.

Minority Interests.

Whilst its detractors argue that the lack of equal protection and the winner takes all system of selecting electors damages minority interests, supporters of the college argue that that very unit voting system actually promotes the interests of minorities.

The Electoral College’s supporters argue that in swing states in which every vote counts, the minority can vote en bloc and therefore increases the importance of their vote.  This political leverage means that Presidential candidates have to be receptive to minority views if they want to win such crucial states.  If the Electoral College were abolished in favour of direct popular election, then small minorities would be swamped by the majority in a national vote and candidates it is argued would have little to gain from appealing to such groups.  

An example of the leverage effect could be that candidates may very well come out with pro-Israel policies in order to win the Jewish vote in a state like New York which has a sizeable Jewish minority.  A similar example would be Cuban policy being decided by the need to obtain Hispanic votes in Florida.

This minority bloc voting is further enhanced by the fact that ethnic minorities have tended to congregate in large cities in the most populous states, and therefore they live in the states of greatest electoral vote value and of most interest to presidential candidates.  Hence, the Electoral College actually increases the importance of minority views to presidential candidates and thus serves them better than would direct election.

Extensive Recounts.

Following the recounts in Florida which re-ignited the issue of he Electoral College, its supporters have actually turned an apparent negative to a positive in favour of retaining the College.  They argue that if the United States were to adopt national direct election that if an election were close that a national recount would be necessary rather than just a state-wide tallying of votes.  Such a procedure would be time consuming and extremely costly.

Limits Election Fraud.

It is further argued by supporters of the Electoral College that should  the  College be abolished in favour of direct  election that this would increase the likelihood of fraud.  The argument asserts that whilst at present the College states the value of any particular states votes no matter what the turnout, there is no incentive for governing parties in one party states to fraudulently create inflated voting figures as it will have no effect on the overall result. This may be true but in such states as the winner of that states electoral votes can easily be predicted before the election day the system actually disenfranchises supporters of the opposition and would thus restrict participation.

These main arguments in favour of the retention of the Electoral College are well summarised  by John C. Eastman:

“The Electoral College does more than just serve as check on tyrannical majority power.  It helps channel the popular vote into a constitutional rather than just a numerical, majority, ensuring that the successful candidate has a level of popular support that is dispersed both geographically and ideologically and that, as a result, the electoral winner will be able to govern.  The Electoral College also ensure that every region of the country, and indeed every State in every region, has a voice in the election of the President and therefore a part in the successful functioning of the national government.” ⁽¹⁷⁾

It can therefore be seen that there is a real academic, constitutional and political argument over the issue of the Electoral College.  Both sides in the debate have cogent arguments in support of their claims.  However, the debate need not and is not simply between those in favour of retention or abolition.  There is the possibility of reform.  In the next chapter I will assess the current proposals for reforming the electoral process, both abolitionist and reforming.

Notes

1. 343 US 214 (1952)
2. Ibid at 232
3. U.S. Electoral College Webzine.
4. www.avagara.com/e_c/ec_unfaithful.htm
5. CRS REPORT for CONGRESS RL 30804 p9
6. 343 US 214 (1952)
7. Baker v Carr 369 US 186 (1962)
8. 377 US 533 (1964)
9. Ibid at p567.
10. Hoffman, Matthew M.  The Illegitimate President:  Minority Vote dilution and the Electoral College.  Yale Law Journal Jan 1996 105 n4 p935
11. Williams, V.  MacDonald, Alison M.  Rethinking article II, Section 1 and its Twelfth Amendment Restatement:  Challenging Our Nations Malapportioned, Undemocratic Presidential Election Systems. Marquette Law Review Winter 1994 Vol 77 n2 p201 at p249.
12. www.fairvote.org/turnout/intturnout.htm
13. 343 US 214 (1952) at 234
14. Samples, John.  “In Defense of the Electoral College.”  November 10, 2000 available at www.cato.org/dailys/11-10-00html
15. Eastman, John C.  “In Defense of the Electoral College”  Claremont Institute Center For Constitutional Jurisprudence available at www.claremont.org/publications/eastman001120.cfm
16. Electoral College Webzine, www.avagara.com/e_c/ec_directdanger.htm
17. Eastman, John C.  “ In Defense of the Electoral College”  Available at www.claremont.org/publications/eastman001120.cfm

United States Electoral College

• INTRODUCTION
• CHAPTER 1. ORIGINS & HISTORY OF THE ELECTORAL COLLEGE
• CHAPTER 2. NOT A PERFECT SYSTEM – THE PROS & CONS OF THE ELECTORAL COLLEGE
• CHAPTER 3. PROPOSALS FOR REFORM
• CHAPTER 4. THE GRASS IS ALWAYS GREENER?
• CONCLUSION