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Saturday, September 18, 2004

Posted by Jake
The Electoral College (cont.)

I must admit that I remain of two minds on the subject of the electoral college. I can see the validity of both sides arguments. So to clarify the discussion I will break it down into several themes related to the arguments that I have heard. I think that I will write about them one at a time because I don't have time to talk about all of them right now. First...

Determinacy vs. Legitimacy -- On the one hand we would like our president to seem legitimately elected by the voting public and other the other we would like him to be elected in some timely manner and the decision made with a limited amount of second guessing.

One of the reasons as I understand it that the electoral college was established in the first place was to deal with the issue that communication travelled slowly between the nascent states. It was much easier to have an election composed of electors in one room than the tally of individuals in the states. The electoral college serves a similar purpose today. The electoral college votes and there is a clear winner (because you can't really miscount 500 votes). The winner take all system is also in this vein. By magnifying the effects of majorities in states, as small popular majority can be magnified to a huge electoral majority (witness Mondale). Similarly ligitation is limited to a few states, because the majority is sufficient in enough states that ligitation would not matter. All these mechanisms ensure that the new president is determined well before he is to take office, ensuring a smooth transfer of power. (Largely for these reasons I would never advocate a complete scrapping of the electoral college for a popular election. I would like to make that clear. I doubt with sincerity that a president in a close election could be clearly determined before election day in a popular election.)

A reasonable argument can be made that this speedy process of law guarantees the legitimacy of the new leader. All rules followed equals new leader. However, there are other necessary characteristics to legitimacy. Not only but must all the rules be followed but the electorate must feel that those rules ensure that the will of the electorate is carried out. I could arrange an arbitrary system of rules and if those rules were followed then indeed the president would be legitimate in that sense, but this would not guarantee that the result was democratic.

I would argue that the conflict over the last election was a reflection of this different notions of legitimacy, both valid. Conspiratorial as they may sound, Democrats still assert that Bush should never have been president. They may be ignoring that he was duly elected by following the rules of our political system (I won't get into the quagmire of the manner in which votes were counted in Florida), but they do have a point. Bush did not win the majority of the votes yet he is president.

Another argument made against the electoral college related to legitimacy is that some votes are not counted. In states with a clear majority in one direction, the opposition votes (in all but two states) are treated as if they were not cast. The counter argument is due to the inherent volatitility in the voting habits in individual states no state can be counted on. Witness New Jersey in this election. On this point I agree thoroughly. However, saying to someone that their vote might count is different than saying that their vote will count. The invisibility of one half of the electorate (whether it goes to the victor or the opposition) adds in my opinion to the sense of illegitimacy.

So we reach an impasse. How can we account for the needs of legitimacy while still making a decision in a timely fashion (and preventing an exploding cycle of litigation)? On this count, I would at least consider (though as all decisions in this area must be made very deliberately not necessarily conclude upon) a system of proportional representation (electoral votes in each state being distributed according to the proportion of the popular vote). The US population is approximately 294,000,000. Divided evenly among 538 electoral votes (I recognize the fudging here but bear with me) that is approximately 550,000 votes per vote. I think such a sum should be sufficient to render most states within a reasonable margin for each electoral vote to be allocated clearly (the difference in the number of voters going for each side being of sufficient size to deter ligitation).

The argument has been made to me -- and I would say reasonably -- that this enhances the possibility of litigation be ensuring and increased number of points along the spread of possible voter outcomes where the election could be contested. I am not at present aware of statistics that would say one way or the other but the assertion sounds reasonable. To this I would respond that the litigation spawned in the last election in Florida was in part because of the elections closeness but also in part attributable to the incredible vagueness in their voting procedures. Such an event had clearly never been contemplated by the Florida legislature thus no rules existed to rectify it. The courts were forced to render judgement on the fly to account for this inadequacy. This problem can be solved by clear, universal procedures for both the conduction of elections and any recount that might ensue. In addition the installation of technological advance such as push button voting machines would in my opinion go a long way to deter litigation. I am not suggesting that there would be none, but I think it would be sufficiently irregular to render such a system workable.

Another counterargument to such a plan is that because of the constitutional requirement of the president being elected by a MAJORITY of the electors rather than a PLURALITY, a proportional system might render such a standard unattainable resulting in the election being consistently punted to the House of Representatives. This would either require the formation of a coalition to elect the president (and a more parliamentary system) or -- and I think presently more likely -- the complete control of one party over the presidency (the incumbency reelection rate being obscenely high in the House). Both are very legitimate concerns, and I think that I will hold off dealing with them until the next post.

(I would note that I hardly decided related to this question. I could still be argued either way. I think the Electoral College has some clear benefits and some clear drawbacks. Its critics do in my opinion makes some very legitimate points. The balance that it strikes in not immutable and could be changed rather than a complete scrapping of the system. I do however reject the idea that since a system is old it is necessarily good. The Framers may have been wise, but the world changes and our government may have to change with it. In any case any change must be taken very deliberately which is the purpose I see in debating it thoroughly.)

Next post -- The consequences of a more Parliamentary system...


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