Should the President be chosen by electoral vote or by popular vote?

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by Scott O'Reilly

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The Electoral College is to the body politic what the appendix is to the human body. In both cases no one knows what they do, until they cause trouble. The Electoral College, of course, figured prominently in the disputed election of 2000, where Al Gore won the popular vote, but George Bush prevailed when it came to the all-important electoral votes. That contest, needless to say, revealed deep fault lines in our election system, not the least of which is the anachronistic nature of the Electoral College.

A woman once asked Benjamin Franklin what kind of government our nation would have. "A Republic," the colorful statesman replied, "if you can keep it." Franklin's quip reveals the deep unease many of the Founding Fathers harbored toward direct democracy, which they feared could easily descend into mob rule. As a result, they envisioned the Electoral College as something of a buffer and a braking system that could check the potential imprudence of hoi polloi.

The Electoral College, then, was supposed to consist of the nation's more enlightened citizens. The public would cast their votes for president only indirectly; citizens would vote for electors and the electors would choose the president. Of course, the electors were likely to vote for candidates chosen by their constituents, but in principle they were free to change their mind and vote their conscience. Indeed, the Framers of the Constitution expected the electors would be citizens capable of exercising sound and independent judgment, especially in contrast to the masses, which they feared might be ruled by irrationality and baser appetites.

Today, the Electoral College bears more resemblance to a rubber stamp than it does to an august body of all-wise elites capable of discerning the best interest of the country. In fact, today's electors perform a largely ceremonial function one associates with political hacks. If ever there was an occasion for electors to perform the deliberative function intended by the Framers it was in the aftermath of the 2000 contest. Instead, the only thing we heard regarding the Electoral College was that its members had signed loyalty pledges, which although not legally binding nevertheless morally committed them to candidates from their respective parties. This is a far cry independent-minded citizen-statesmen the Founders hoped would constitute the Electoral College.

The reputation of the Electoral College is now inextricably bound up with the reputation of the ill-fated and largely discredited Bush administration. Former Supreme Court Justice Sandra Day O'Connor cast a deciding vote in the infamous case of Bush vs. Gore. At the time, Justice O'Connor blamed inept voters for failing to record their votes properly, which led to thousands of discarded ballots. Some years later, however, Justice O'Conner apparently had second thoughts; upon retiring she described President Bush as "arrogant, lawless, and extreme." In hindsight thousands of poor, uneducated, and minority voters made a wiser choice in the voting booth than the highly educated Justice that disenfranchised them.

Historians will be debating the ironies of Bush vs. Gore for centuries. The Majority held that although citizens have no constitutionally guaranteed right to vote for president, nevertheless recounting ballots according to different standards violated the equal protection clause. Perversely, since Bush lost the popular vote his ultimate victory was possible only because votes in some states counted more than others.

Advocates of Originalism, the notion that the Constitution must be approached literally as an unchanging contract between generations, insist that the judiciary should not carve out new rights or make new laws. But that's just what Justice Anthony Scalia, the foremost practitioner of Originalism, did when he and the Majority effectively shutdown the Florida recount on the grounds that it violated the equal protection clause.

Justice Stephen Breyer offers a compelling alternative to Scalia's Originalism. In Breyer's view, the Constitution is like symphony; it contains broad themes that need fresh interpretations. That is, we don't expect conductors to interpret scores slavishly, as if there were one and only one way to interpret a score. Rather, we expect conductors will remain faithful to the original intentions of the composer, but at the same time find new ways to breathe life into the inherent themes. For Justice Breyer, the Constitution contains as it broadest theme the motif of "active liberty," which in simple terms is the ideal of a citizenry participating in the process of self-government. As Breyer sees it, the American experiment is at its best when it allows a gradual expansion of enfranchisement.

When the Electoral College was established, only white male property owners had the right to vote. Most of us would acknowledge that widening the circle of enfranchisement is consistent with the Constitution and our ideals. The Electoral College no longer fulfills the intentions envisioned by the Framers. Indeed, it has arguably denigrated into an impediment to fuller enfranchisement. In any event, the calamity of Bush vs. Gore demonstrates that the hoi polloi are capable of exercising better judgment than the Founders might have expected. The time has come to scrap an anachronistic system that distorts our political process and no longer serves any democratically useful purpose.

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