United States Electoral College – CHAPTER 4. THE GRASS IS ALWAYS GREENER?

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 It appears to us that the system is undemocratic and outdated, whilst the fact that a winner of the popular vote can actually lose the election seems inherently unfair.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.

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

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.
Gaffney, John. Milne, Lorna. “French Presidentialism and the Election of 1995” 1997 Ashgate Publishing Ltd, Aldershot at p6.
Ibid at p60-62
Newland, Robert A. “Comparative Electoral Systems” 1982, The Arthur McDougall Fund, London at p13.
Gaffney, John. Milne, Lorna. “ French Presidentialism and the Election of 1995.” 1997, Ashgate Publishing Ltd, Aldershot, Chapter 16.
Durerger, Maurice. “Le Systeme Politique Francais Droit Constitutionel Et Institutions Politique.” 1988, Presse Universitaires de France 19th edition, Paris pp178-181 Ibid at p5.
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.
Ibid at p175
www.agora.stm.it/elections/election/ireland.htm
Ibid at p176
Golay, John Ford. “The Founding of the Federal Republic of Germany.” 1958, University of Chicago Press, Chicago.

United States Electoral College

CHAPTER 4 – THE GRASS IS ALWAYS GREENER?

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