Tight election puts Electoral College under microscope
An 'odd institution'
ATLANTA, Georgia (CNN) -- With the presidential election so tight, millions of Americans have taken a renewed interest in the Electoral College, the system designed by the nation's founders to elect a president.
A week ago, many Americans knew little about the Electoral College. Now, with the presidency at stake, voters are questioning how a candidate who loses the popular vote can end up in the Oval Office.
"It's one thing to tell the public we have an Electoral College, but it's very hard to persuade them it's worth having if what it means is that their will is disregarded," said Floyd Abrams, the noted First Amendment attorney and a constitutional expert who practices law in New York.
Such is the case this year. Vice President Al Gore appears to have narrowly captured the popular vote, while Texas Gov. George W. Bush could win the presidency by winning the necessary 270 electoral votes if his razor-thin sliver of a lead in Florida holds.
The Electoral College has always come under scrutiny during the presidential election cycle, but it has never been put under the microscope like this.
CNN's Frank Sesno examines the Electoral College and its role in U.S. politics
(QuickTime, Real or Windows Media)
"The Electoral College has always been a bit of an odd institution from the perspective of modern American eyes," said Charles Shanor, professor of law at Emory University in Atlanta. "We tend to think of ourselves as a democracy where we vote directly for our elected officials. But with respect to the president and vice president, we do not vote directly for our elected officials. We vote for electors to vote for the elected official."
There are 538 people, or electors, who make up the Electoral College. Each state gets one elector for each member of the House of Representatives (435) and the Senate (100); the District of Columbia gets three electors.
Each elector, guided by the state's popular vote, is expected to vote for his or her own party when the electors meet on December 18. Constitutional-law scholars say it is remotely possible, but highly unlikely, that Florida may not appoint its share of 25 electors by that date because of possible legal challenges. The Electoral College might then proceed with 513 members.
The nation's founders designed the Electoral College principally to reassure states they had not given up all their power to a federal government through the larger population.
To that end, the Electoral College has worked. Without it, rural or smaller states like Iowa and New Hampshire would be shunned for the populous states of California, Florida and New York.
But the system is not without its flaws. A president who loses the popular vote can become president -- an oddity that has happened three times in the nation's history: John Quincy Adams in 1824; Rutherford B. Hayes in 1876; and Benjamin Harrison in 1888. (Adams won after the election was sent to the House because no candidate won the electoral majority that year.)
Another oddity: Electoral results rarely match the popular vote. Even in a fairly close popular vote, the electoral margin often exaggerates the victory of the candidate who won the popular vote, thus lending more legitimacy to that candidate's election. For example, in 1960, John F. Kennedy got roughly 115,000 votes more than Richard Nixon in the popular vote -- a squeaker of an election -- but won the Electoral College handily, 303-219.
In the past, most voters have been willing to overlook the electoral system's quirks because the "elections weren't close enough that the individual vote really seemed that significant," said Wayne Fields, director of American culture studies at Washington University in St. Louis, Missouri, and a scholar of presidential rhetoric.
"People left the booths thinking that their vote was sort of lost in the larger number of votes and that it would be balanced out in the end. So, they didn't worry about it," said Fields. "Now, they're going to worry about it."
With the issue hot among constituents, a few legislators, including New York senator-elect Hillary Rodham Clinton, have begun calling for the Electoral College's abolition. But that would require a constitutional amendment, and scholars and constitutional experts say such a change is highly unlikely.
"I don't think it will likely ever be abandoned, because it is viewed as protecting the interests of the smaller states," attorney Abrams said. "As a result I don't see any way that three-quarters of the states (the number needed to enact a constitutional amendment) will ever support some sort of abolition of the Electoral College."
Added Fields: "There's a real reluctance to change the system in such a fundamental way, even though most Americans didn't even know there was an Electoral College."
The fact that such a tight presidential race has not caused nationwide instability is testament to the strength of the United States, say international elections observers.
In many nations, such a pitched contest would "create immediate dangers of civil unrest and a struggle over power," said Charles Costello, director of the Carter Center's Democracy Program. Located in Atlanta, the center has observed 29 elections in more than 20 countries during the past decade.
"I think the great good fortune of us here in the United States is that we have full confidence that this will be worked out according to election laws," Costello said.
Included in those laws is a provision allowing the House to choose a president if the Electoral College fails to pick a clear winner. Each state would get one vote, and the winner would need only a simple majority -- 26 votes -- to claim the White House.
Such a vote invites unexpected political twists. Bush conceivably could lose his home state of Texas because there are more Democrats than Republicans representing the state.
Gore could lose states he won in the popular vote for the same reason. In addition, the District of Columbia, which gets three electoral votes, wouldn't cast a ballot in the House vote.
The Senate, meanwhile, would be responsible for choosing the vice president.
If the House deadlocked in selecting the president, it would have two weeks to try to solve the impasse before Inauguration Day on January 20. If the House was unable to do so during that time, the vice-president elect, assuming one has been chosen, would serve as acting president until the House resolved its deadlock.
And in the event the Senate is similarly deadlocked in choosing the vice president, the speaker of the House would serve as acting president until a president or vice president is selected.
"Things like that would create a constitutional crisis, but I don't think we're there or anywhere near there," said Abrams.
That is why the candidates are battling over those crucial 25 electoral votes in Florida, knowing that the presidency hinges on the Sunshine State, said Fields, the presidential scholar.
"When these candidates spend as much time and as much money running for office as they've spent, it's hard for them to say, 'I lost,'" he said.