Now What?

November 9, 2000

This year’s presidential election didn’t get interesting until all the votes had been cast. Then it became one of the most dramatic races ever. And one of the most confusing.

Al Gore won a very narrow plurality (though not a majority) of the popular vote. George Bush seemed to have won the electoral vote, thanks to an even narrower plurality in Florida, where the law required a recount. The final result may not be known for several days, when absentee ballots, many of them from Israel, have been tallied.

Some pundits (and Democrats, of course) are saying that members of the Electoral College should disregard their instructions and vote for Gore rather than Bush because Gore won the popular vote, albeit with a minority of the total votes cast. Democracy, they say, gives the candidate who gets the most votes a moral claim on the presidency; the Electoral College is an undemocratic anachronism, even if the Constitution mandates it and it has always decided presidential elections. So what do we do now?

Well, the Constitution itself could be called an undemocratic anachronism. It could easily have prescribed that the winner of the popular vote be president. It didn’t do that. It gave weight to the states; and in the event that no clear winner emerged from the deliberations of the Electoral College, it prescribed that the election be decided in the House of Representatives, with each state having a single vote, in which case the candidate who carried the most states, not the most popular votes, would probably become president.

Of course the Constitution is pretty much a dead letter, about as passé as feudalism. But the federal government pretends to be abiding by it, many Americans imagine that we are still governed by it, and it remains an interesting document for other reasons. What did its authors have in mind when they specified how presidents should be chosen?

Our best guide on this is still The Federalist Papers. In Federalist No. 68, “Publius” (in this case Alexander Hamilton) describes the role of the “electors,” who should be “men most capable of analysing the qualities adapted to the station [of the presidency].” These “electors” would themselves be elected by the people to perform this special function.

Publius says that the deliberate choice of a president by a body of men who possess “information and discernment” is preferable to a president chosen directly by the people. Simple majority rule might produce “tumult and disorder.” The electors should not be officeholders, who might have “too great [a] devotion” to the incumbent president; their number would be a safeguard against “corruption.”

He explains: “This process of election affords a moral certainty that the office of president will seldom fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue and the little arts of popularity may alone suffice to elevate a man to the first honors in a single state; but it will require other talents and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of president of the United States. It will not be too strong to say that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.”

So the Electoral College was one more constitutional device for decentralizing power and ensuring that major decisions wouldn’t be made either by simple and passionate majorities or by corrupt minorities. But it was supposed to make a real choice, not merely to rubber-stamp the popular vote as it does now. The result would be presidents “pre-eminent for ability and virtue.” That hardly describes Bush, Gore, or any recent president.

So it’s true that the Electoral College is an anachronism. In fact, it’s a vestige of a vestige, because it no longer does what it was created to do and serves no coherent purpose. But those who want to abolish it entirely would replace it with the very evils it was designed to prevent.

Joseph Sobran

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