The Electoral College, Unfair From Day One
Published: November 9, 2000
NEW HAVEN — As we await results from the Florida recount, two things should be clear. First, if George W. Bush, having apparently lost the popular vote, does indeed win at least 270 electoral votes when the Electoral College meets, he is the lawful winner, who played by the Constitution's rules and won.
Second, we must realize that the Electoral College is a hopelessly outdated system and that we must abolish it. Direct election would resonate far better with the American value of one person, one vote. Indeed, the college was designed at the founding of the country to help one group — white Southern males — and this year, it has apparently done just that.
In 1787, as the Constitution was being drafted in Philadelphia, James Wilson of Pennsylvania proposed direct election of the president. But James Madison of Virginia worried that such a system would hurt the South, which would have been outnumbered by the North in a direct election system. The creation of the Electoral College got around that: it was part of the deal that Southern states, in computing their share of electoral votes, could count slaves (albeit with a two-fifths discount), who of course were given none of the privileges of citizenship. Virginia emerged as the big winner, with more than a quarter of the electors needed to elect a president. A free state like Pennsylvania got fewer electoral votes even though it had approximately the same free population.
The Constitution's pro-Southern bias quickly became obvious. For 32 of the Constitution's first 36 years, a white slaveholding Virginian occupied the presidency. Thomas Jefferson, for example, won the election of 1800 against John Adams from Massachusetts in a race where the slavery skew of the Electoral College was the decisive margin of victory.
The system's gender bias was also obvious. In a direct presidential election, any state that chose to enfranchise its women would have automatically doubled its clout. Under the Electoral College, however, a state had no special incentive to expand suffrage — each got a fixed number of electoral votes, regardless of how many citizens were allowed to vote.
Now fast-forward to Election Night 2000. Al Gore appears to have received the most popular votes nationwide but may well lose the contest for electoral votes. Once again, the system has tilted toward white Southern males. Exit polls indicate that Mr. Bush won big among this group and that Mr. Gore won decisively among blacks and women.
The Electoral College began as an unfair system, and remains so. So why keep it?
Advocates of the system sloganeer about "federalism," meaning that presidential candidates are forced to take into account individual state interests and regional variations in their national campaigns.
But in the current system, candidates don't appeal so much to state interests (what are those, anyway?) as to demographic groups (elderly voters, soccer moms) within states. And direct popular elections would still encourage candidates to take into account regional differences, like those between voters in the Midwest and the East. After all, one cannot win a national majority without getting lots of votes in lots of places.
Direct election could give state governments some incentives to increase voter turnout, because the more voters a state turned out, the bigger its role in national elections and the bigger its overall share in the national tally. Presidential candidates would begin to pay more attention to the needs of individual states that had higher turnouts.
The nation's founders sought to harness governmental competition and rivalry in healthy ways, using checks and balances within the federal government and preserving roles for state governments. Direct presidential elections would be true to their best concepts — democracy and healthy competition — rather than to their worst compromises.
Akhil Reed Amar, a law professor at Yale, is author of "The Bill of Rights: Creation and Reconstruction."