In the final part of Dan Heaton’s thesis discussing the United States Electoral College, he concludes his views on the Electoral College.
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.
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 “21st Century Election Rules and Technology Act it was introduced on March 7th 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:
- 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.
- The need for new practices and technologies to aid voters with disabilities.
- 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.
- 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.
- The financial, training, and resource needs of State and local election agencies.
- The feasibility and advisability of voting through the Internet.
- 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.
- 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.
- 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.
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)
|Percentage of Votes Won
|No. of Seats Won
|Percentage of Seats Won
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)
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:
Rules for Redistribution of Seats.
- The number of constituencies in Great Britain shall not be substantially greater or less than 613.
- The number of constituencies in Scotland shall not be less than 71.
- The number of constituencies in Wales shall not be less than 35.
- 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.
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.
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 14th and 15th Amendments extended the rights of citizenship and suffrage to blacks. The 17th Amendment provided for the direct election of U.S. Senators. The 19th Amendment extended the right to vote to women. The 23rd Amendment gave Electoral College votes to the citizens of the District of Columbia. Finally, the 24th 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.
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)
- Los Angeles Times staff Writers, Dec 11, 2000. Available at www.fairvote.org/op-eds/losangelestimesdec00.htm at p1.
- Ibid at p3.
- Ibid at p4.
- Tim Haines, The Times. November 9th 2000 p18
- Compiled from figures found in Thompson, Brian. “Textbook on Continental & Administrative Law.” 2nd Edition, 1993, Blackstone Press Ltd, London p147 & www.bbc.co.uk
- Bresler, Fenton. National Law Journal , December 1, 2000 Available at www.law.com/cgi-bin/gx.cgi/AppLogic+FTContentServer?pagemate=law/View…
- Wade E.C.S & Bradley A.W. “Constitutional & administrative Law” 11th Edition 1993 Longman Group, Harlow, Essex p 180.
- Klinkner, Philip. Insight on the News, Dec 18, 2000 v16 i47 p40.
- Weinhagen, Robert F. Jr. “Should the Electoral College be Abandoned?” ABA Journal, July 1986, 67 n7 p852-857 at 857.
- Federalist no 64. See Beloff, Max editor. The Federalist 2nd edition. 1987, Basil Blackwell Ltd, Oxford.
United States Electoral College