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Thursday, September 9, 2004
"The Electoral College Votes Against Equality"--An Essay by Prof. Akhil Amar and Vikram Amar
(This essay was originally published in the September 8, 2004, edition of the Los Angeles Times.)
The Electoral College Votes Against Equality
By Vikram David Amar, professor of law at the University of California, Hastings, and Akhil Reed Amar, Southmayd Professor of Law at YLS
While the United States tries to persuade the Arab world to embrace democracy, ethnic equality and women's rights, at home we're set to pick a chief executive via an electoral college system that was designed in part to cater to slavery and to accommodate the disfranchisement of women.
As we all were reminded in 2000, the presidential candidate with the most popular votes nationwide does not necessarily win. Instead, the Constitution allots to each state a certain number of electoral votes based on population. Conventional wisdom holds that this system was originally aimed at giving smaller states a boost: Every state, no matter how tiny its population, would get at least three electoral votes. But, in fact, every one of the early presidents came from a populous state, and over the course of two centuries only three presidents have come from low-population states: Taylor, Pierce and Clinton.
In a system in which each state awards electoral votes on a winner-take-all basis, large states loom, well, large. So do swing states, where each side focuses its campaign because it has a realistic chance to win a statewide majority and thus the state's entire electoral bloc.
If helping small states does not really explain the electoral college, what does?
At the founding of the country, the deepest schisms ran not between large and small states but between North and South. At the Constitutional Convention, when Pennsylvania's James Wilson proposed direct national election for the president, Virginia's James Madison countered that such a system would enable the North to outvote the South; under direct election, the South would get no credit for its half-million slaves, none of whom, of course, would be able to vote. The electoral college system that ultimately emerged gave the South partial -- three-fifths -- credit for its slaves.
Virginia was the big winner, thanks largely to its massive slave base. Under the 1800 census, the free state of Pennsylvania had far more eligible voters than Virginia but got 20% fewer electoral votes. Perversely, the more slaves Virginia (or any other slave state) bought or bred, the more electoral votes it would receive. Were any slave state to free slaves who then moved to the North, it could actually lose electoral votes.
For 32 of the Constitution's first 36 years, a slaveholding Virginian occupied the presidency. In 1800, Virginia's Thomas Jefferson beat Massachusetts' John Adams because of the three-fifths handicap. Had slaves not been counted, Adams would have won. With this pro-slavery bias of the system in full view, Americans in 1804 adopted a constitutional amendment (the 12th) that pointedly preserved the tilt toward slavery while fixing other electoral college glitches caused by the emergence of national political parties.
The founders' system also encouraged the continued disfranchisement of women. In a direct national election system, any state that gave women the vote would automatically have doubled its national clout. Under the electoral college, however, a state had no such incentive to increase the franchise; as with slaves, what mattered was how many women lived in a state, not how many were empowered. Even today, a state with low voter turnout gets precisely the same number of electoral votes as if it had a high turnout. By contrast, a well-designed direct election system could spur states to get out the vote.
Of course, even an election system with tainted origins might be worth preserving for different reasons today. But if the electoral college makes sense in the modern era, why has every state repudiated this model for gubernatorial elections? If one person, one vote is the right way to pick California's governor, why not the country's president?
Some may contend that the electoral college can minimize fraud -- but historical evidence doesn't bear this out. Some say the system protects against recounts -- but it couldn't prevent the Florida recount, and why should recounts be feared in a democracy? Still others believe that the electoral college deters fringe candidates -- but multiple parties have always appeared on presidential ballots.
True, the electoral college has inertia on its side, but that's hardly a reason to resist reform -- especially when the system puts at risk the basic democratic ideal of equality and inclusion, the very ideal the U.S. is seeking to promote around the world.
Vikram David Amar is a law professor at UC Hastings College of the Law. Akhil Reed Amar is a law professor at Yale.