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At 5:00 p.m. last Tuesday, sixty-seven counties in Florida certified their vote tallies to the Florida Secretary of State, providing Governor George W. Bush a 300-vote margin of victory and earning him, at least temporarily, that State's twenty-five electoral votes and with them the Presidency. This, despite the fact that as of this writing on Thursday, Vice President Al Gore was ahead in the national popular vote by a slim margin of 250,000 out of 100 million votes cast, less than 1/4 of one percent.
Of course, by the time this article appears in print, absentee ballots submitted by Florida residents living overseas and, more likely, court-ordered supplements to the official certification, may well have altered that result, giving to Vice President Al Gore the State's electoral votes and hence the Presidency. But at the same time, Gore's margin of victory in the national popular vote totals may well have disappeared once all the absentee ballots are counted in California, Washington, and elsewhere, and he would have only won 21 of 50 states, one of the weakest, if not the weakest, showings in our nation's history.
In either case, then, we could be faced for the third time in our nation's history with the election of a President who did not command a majority or even a plurality of the national popular vote. Undoubtedly, we will hear cries that the constitutional mechanism of the Electoral College is an anti-democratic relic of the past that ought to be consigned to the ash heap of history, much like the indirect election of Senators was abolished nearly a century ago. There will almost certainly be legislation introduced in Congress to abolish the Electoral College by constitutional amendment, and the proposed amendment may well pass one or perhaps both houses of the Congress and be forwarded on to the states for consideration and ratification. The temptation to approve such an amendment will be strong but, as a proper understanding of why this nation's founders designed the Electoral College will demonstrate, it is a temptation that must be resisted.
Although Congress has periodically considered abolishing the Electoral College, it perhaps came closest in the wake of Richard Nixon's election as President, due in no small measure to the fact that the Democratic party was ripped apart by the maverick candidacy of Alabama Governor George Wallace. Fast on the heels of the Supreme Court's decision in Reynolds v. Sims holding that both houses of a state legislature must be apportioned based on population, the supposed moral claim for direct popular election of the President under a like one-man one-vote principle was at its strongest. The proposed constitutional amendment passed the House of Representative in the fall of 1969, and received a favorable vote from the Senate Judiciary Committee the following August. There it died, largely because of a minority report that articulated the constitutional principles that underlay the Electoral College and, indeed, our whole system of constitutional government.
Foremost among those principles enunciated in that minority report is that ours is not a government of simple majority rule. For the Founders, mere majority rule could not make an illegitimate exercise of power legitimate or, as Thomas Jefferson put it in his First Inaugural Address: "The will of the majority is in all cases to prevail, but that will, to be rightful, must be reasonable." Our entire constitutional structure is designed to transform mere majority power into a rightful and reasonable majority rule that is also protective of the individual rights of minorities — religious minorities, racial minorities, and electoral minorities of every stripe, from struggling Midwest farmers to wealthy Silicon Valley CEOs.
Congress, for example, is divided between two branches, only one of which is apportioned by population while the other, the Senate, is constituted by the distinctly non-majoritarian allotment of seats to States of vastly different populations. This, the Founders believed, served to check the raw passions of a majority that might gain sway in the House of Representatives and use its majority power to trample the rights of minorities. And it served to protect the States as a fundamental component of our constitutional system, able to check the power of the national government and thereby help ensure liberty.
The same concern with raw majority power underlies the constitutional doctrines of enumerated powers, of federalism, of an independent, non-elected judiciary, and yes, of the Electoral College. Indeed, the Electoral College is part and parcel of the entire constitutional structure. As then-Senator John Kennedy argued in 1956 while opposing an earlier attempt to abolish the Electoral College, "It is not only the unit vote for the Presidency we are talking about, but a whole solar system of governmental power. If it is proposed to change the balance of power of one of the elements of the system, it is necessary to consider the others."
The Electoral College does more than just serve as a check on tyrannical majority power. It helps channel the popular vote into a constitutional, rather than just a numerical, majority, ensuring that the successful candidate has a level of popular support that is dispersed both geographically and ideologically and that, as a result, the electoral winner will be able actually to govern. The Electoral College also ensures that every region of the country, and indeed every State in every region, has a voice in the election of the President and therefore a part in the successful functioning of the national government.
More germane to the present events down in Florida, the Electoral College helps isolate states in which the election is extremely close from the rest of the country, minimizing the concerns with recount manipulation and outright voter fraud. As the minority report noted in 1970, "recounts will be a disastrous problem in the United States should direct election of the President become law." "The political stability of this Nation is at stake." Just "imagine this Nation, gripped by controversy, having to undergo a national recount every time there is a close election."
Just imagine, we might now say, the damage to our political (not to mention our economic) institutions that would result if the chaos down in Florida was being replicated right now in every state in the union, in every county in every state. We can and will survive Florida. We might not survive a 50-state Florida fiasco, yet that is just what we will likely get if we abolish the Electoral College.
