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...And Its Musty Old Quirks

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It feels antiquated now that the presidency is more important and the states less so

We may need a Constitutional amendment to avoid another mess like Tuesday's, but it's unfair to blame the architects of the U.S. Constitution. They simply put the framework of an Electoral College into being, specifying that each state would choose an elector for each of its U.S. Senators and members of Congress. The rest was left to Congress and the states, and when the national party systems took shape in the 1820s, the states began to have voters choose party slates of electors when they voted for President. Most electoral-vote results became winner-take-all outcomes, which they remain.

Therein lies the problem, that presidential elections wound up with two measurements: one, with no legal standing, was the national total of popular votes; the second involved the voters' choice of electors from each state. Most of the time, the popular-vote winner also got a majority of the Electoral College.

Back in the late 19th century, when Rutherford Hayes and Benjamin Harrison each won the electoral vote and the White House, despite having lost the popular vote, few voters got excited. States were more important then than now, and Presidents were less important. Those were laissez-faire years, when government didn't do much, and even most college history majors can't remember who was President during which term.

This year's result, by contrast, is a mess because Presidents and democratic principles count for more. If his narrow lead holds up in Florida, George W. Bush will have such a thin majority in the Electoral College that Gore's nationwide popular-vote lead of more than 200,000 will seem the more decisive verdict. The dubious integrity of Florida's ballot tabulations will only add to the aura of illegitimacy.

Whether it's Bush or Gore, the man who wins the White House will face a leadership dilemma. New Presidents who have won less than 50% of the vote--John Kennedy in 1960, Richard Nixon in 1968, Bill Clinton in 1992--have started out under pressure to conciliate rather than undertake bold partisan ambitions. Bush, as a President tainted by his lack of a popular-vote margin, could be even more inhibited.

This is why we can expect pressure for reform--specifically a renewed demand to abandon the Electoral College in favor of direct, popular-vote election of the President, which would require a constitutional amendment. This is what got attention but then failed on Capitol Hill after George Wallace's third-party strength in 1968 almost blocked an Electoral College majority.

This option has obvious weaknesses. The Democrats, especially because of Gore's likely popular-vote victory, are the party ideologically most disposed toward reform. However, conservatives, almost by nature, cling to old institutions and cherish constitutional artifacts. Many Republicans also believe that their party has an advantage in the Electoral College because it overrepresents the small, rural and G.O.P.-inclined jurisdictions. This isn't true anymore--now that Republican presidential support is overconcentrated in the South--but it used to be in the 1970s and '80s, and old beliefs die hard. Republicans are likely to beat back any constitutional amendment.

But in lieu of a constitutional amendment, congressional legislation may be able to do the job. Article II of the Constitution says that "Congress may determine the time of choosing the Electors and the day on which they shall give their votes." Proponents of reform say that Congress could pass a law requiring that electors be chosen on Election Day and also give their votes on Election Day. That would leave the states with no avenue but to consider each individual voter to be a fraction of an elector.

These complications could push the choice back to a constitutional amendment to elect Presidents by popular vote alone. But by majority--or would a plurality be enough?

After last Tuesday's wake-up call, we cannot accept politicians' assurances that the current electoral system has managed for over a century, that 2000 was a fluke and that maybe we'll be lucky for another 100 years. Partisan rancor, the divided outcome and the disputed Florida are more than enough proof that the viability and legitimacy of the 21st century presidency require either constitutional or legislative reform.

KEVIN PHILLIPS' most recent book, The Cousins' Wars, was a runner-up for the 1999 Pulitzer Prize for history


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Cover Date: November 20, 2000

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