Want a Real Constitutional Crisis?
Scrap the electoral college.

By James R. Edwards Jr., an adjunct fellow with the Hudson Institute, teaches government in the Claremont McKenna College Washington Semester Program.
February 20, 2002 9:25 a.m.

year after Bush v. Gore, the Senate has taken up legislation that would allow the federal government to micromanage states' electoral mechanics. As bad as this bill is, it falls short of what some people suggested last year: doing away with the electoral college altogether.

If you want a real constitutional crisis, scrap the electoral college and go to the direct election of presidents.

Remember, the Founding Fathers deliberated over many of the same contingencies we're revisiting. They had escaped subservience to a monarch; had experience with colonial, then state governments with their own constitutions; and sought to remedy the flaws of the Articles of Confederation.

The Founders crafted a union whose constituent parts are sovereign states. Federalist 1 notes that the Constitution is "comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed." Though some dismiss states' rights and their role in the federal system, the fact remains that states counterbalance the federal government.

Under the federal system the Founders fashioned, states have a voice as states so that they can check and balance the national government. The Constitution constructs a central government which is strong enough, but limited in scope. Civil government — at all levels — is limited so that it won't unduly encroach on individual rights. States intervene in order to safeguard the individual rights of their citizens.

States gained a voice in presidential selection as states because "The State governments may be regarded as constituent and essential parts of the federal government; whilst the latter is nowise essential to the operation or organization of the former" (Federalist 45). The constitutional counterbalance would be radically upset without the electoral college, thus leaving our rights less guarded.

Some will argue that we've steadily marched toward direct democracy and away from republican design. But that's all the more reason to preserve the remaining components of the federated system. As a result of the destruction of the states' checks and balances, the federal government has steadily encroached on state jurisdiction — with impunity.

Also, the electoral college moderates competing factions, which would certainly flourish under a popular election scheme. At present, a simple majority of voters — whether of a political party, a special interest, or a few large states — cannot force its will on the nation. That is, the electoral college protects minority rights.

The constitutional majority of electors required from all the states promotes breadth of support for the candidate who wins the presidency. Remember those blue states on the electoral map? Hypothetically, seven states — say, California, Connecticut, Maryland, Massachusetts, New Jersey, New York, and Rhode Island — could give a candidate the 50 million votes George W. Bush and Al Gore each won. But it would be unfair to the nation if a popular majority from those states alone could choose the president.

The Constitution ensures presidential election by what Thomas Jefferson called a reasonable majority. As a 1970 Senate Judiciary Committee report noted, "The central character of American politics requires that we be concerned not just with the size of the majorities, but with their character." The report adds: "[O]nly those majorities are entitled to rule which respect the rights of those who do not agree with them."

The electoral college fosters moderation and compromise. A candidate who could win the presidency by popular election alone would look very different from one chosen by a majority of all the states' electors. Not only the winner, but all presidential candidates would look less like Bush and Gore and more like Ralph Nader or Lyndon LaRouche.

The candidates able to win the White House by a simple majority — or, more likely, a plurality of the popular vote — would hold more extreme positions on more divisive issues.

For comparison, consider a typical House candidate and his state's U.S. Senate candidates. While Senate candidates must attract broad support from the diversity of the state's electorate, the more homogeneous House districts are represented by such liberals as Maxine Waters and such conservatives as Bob Barr.

The campaign issues in a House race also reflect more localized, harder stances. Presidential candidates, on the other hand, hold more moderate positions on national issues. Thank the electoral-college system for this.

As the Senate tempers the legislative impulses of the "people's house," so does the electoral college temper the extremes among the electorate. George Washington was said to have remarked, "We pour legislation into the senatorial saucer to cool it." The electoral college serves the same purpose in the selection of presidents.

In our over two hundred years' history, the four presidents who won by a majority of the electoral vote while losing the popular vote each governed legitimately. So did the several presidents who won office with less than a majority of the popular vote. The electoral college guaranteed that they would.

With direct election of U.S. presidents, the nation would experience acrimony, extremism, factionalism, endless recounts, a weakened president elected by a plurality, and the loss of important protections of minority rights. Every four years, we'd have a true constitutional crisis. If you liked the Florida recounts, you'll love direct presidential election.