Should We Dispense with the Electoral College?
Professor Sanford Levinson, of the University of Texas Law School, argues that true believers in majority rule should find it insufferable that the United States still employs a “constitutional iron cage built for us by [the] Framers,” which allows presidential candidates who lose the popular vote to win our nation’s highest office. Accordingly, he offers a challenge to his two interlocutors, Professor Daniel Lowenstein, of UCLA Law School, and Professor John McGinnis, of Northwestern Law School: “to defend the indefensible.” For his part, McGinnis argues that “majority rule in political decision making is far from sacrosanct,” and that while the Electoral College might not be the “best law that could be enacted,” it “fulfills the . . . essential criteria that any election for a president must meet in a democracy.” Similarly, Professor Lowenstein holds that “abstract majoritarianism” was never a goal of Framers like Madison; rather, the true “republican principle” is consent of the governed, and the Electoral College upholds this principle rather well.
Debating the Electoral College
I offer the following challenges to Professors Lowenstein and McGinnis: Would either of these very capable scholars advise a country attempting to draft a new constitution to emulate the American institution of the Electoral College, either as originally drafted in 1787 or as amended in 1803 with the Twelfth Amendment? Or, if time travel were possible, would either of them, if given the opportunity, remain happily silent at the Philadelphia Convention when the Electoral College was proposed and accepted, almost as an afterthought, as a means of resolving the debate over how to elect the president? Quite frankly, I cannot imagine that either would answer in the affirmative.
The only conceivable argument “for” retaining the Electoral College as a constituent aspect of the American political process is a basically Burkean one. It seems to rely on some mixture of the fact that it is indeed our unique method of choosing a chief executive/head of state; the highly debatable assertion that it has not disserved the country too badly and may even, on occasion, have served us well; and, finally, that it would be either futile, because of the barriers set out by Article V, to try to eliminate the College through constitutional amendment or too dangerous to accept my own proposal, in Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), of calling a new convention, as is legitimate under Article V itself, charged with examining the many grave deficiencies of our present Constitution.
As should be obvious, I disagree with all of the proposed defenses and believe that the College is a continuing menace to the American polity. Complacent acceptance of its “inevitable” role in electing our presidents is equivalent to an equal complacency about driving a car with slick tires and bad brakes, after having had three drinks, on the ground that one had earlier successfully navigated the route home. Even if true, this is ultimately an adolescent way of thinking. We should recognize that there is also a significant chance that such a car will take us over a cliff and try to guard against such an unhappy future by buying new tires, installing new brakes, and resolving not to drive while drunk.
So what are the primary deficiencies of the Electoral College? I begin with the most obvious one: It regularly sends to the White House persons who did not receive a majority of the popular vote. Since World War II alone, this has included Truman, Kennedy, Richard Nixon (1968), Bill Clinton (1992 and 1996), and George W. Bush (2000). (Gerald Ford’s unelected presidency cannot truly be blamed on the Electoral College, though any spirit of fundamental reflection about the current Constitution might well ask about the necessity or advisability of having a Vice President at all.) More distant beneficiaries include Abraham Lincoln and Woodrow Wilson (1912), either of whom might have been defeated if the United States had adopted such a sensible election process as the Alternative Transferable Vote (ATV) or even run-offs between the top two candidates. One might, of course, applaud both of those presidencies; if that is so, then perhaps we should really be debating if we really believe in “majority rule” at all and why losers in such a process should feel obligated to accept what they believe to be fundamentally wrong decisions on the part of minority presidents.
Of course, there is always the possibility that the “winner” will not even have received a plurality of the popular vote. Everyone knows of the 1824, 1888, and 2000 elections; fewer people are aware that it appears increasingly likely that Richard Nixon in fact received more votes than did John F. Kennedy in 1960. In any event, it’s hard—I believe impossible—to offer a vigorous affirmative defense of such a process. And any complacent assurance that it really doesn’t matter that much who becomes president, perhaps because deep structural imperatives are more important than the mere individuals who inhabit the White House, founders on the presidencies in particular of Abraham Lincoln and George W. Bush.
One explanation for the variance between electoral and popular vote outcome is simply the insupportable boon given small states in the process. That it might have been necessary in 1787 to attain support for the Constitution at all is only a political explanation for its presence in the Constitution; it does not count as an argument in favor of our feeling bound by it in 2007, any more than it constituted a winning argument to say that the necessary compromise with slaveowners in 1787 necessitated perpetual support for the “peculiar institution” thereafter. George W. Bush owes his election not only to the machinations of Kathleen Harris and the United States Supreme Court, but also, and more basically, to the fact that he gained nine electoral votes by winning the two Dakotas and Wyoming at the same time that Al Gore won only five votes by winning New Mexico, even though New Mexico has a slightly larger total population than the other three states added together. Unless one favors affirmative action for the residents of small states, there is no defense for this.
But perhaps it is considered too partisan to suggest that the “election” of George W. Bush is a sufficient trainwreck in itself to justify opposition to the Electoral College. So consider the possibility that Ralph Nader had in fact gained the electoral votes of a single state, say New Hampshire, and therefore threw the choice of the president into the House of Representatives, as required by the Constitution. It should be obvious, incidentally, that any defender of the Electoral College must justify every feature of that dreadful institution. If my adversaries concede that certain features are well worth changing, even at the cost of a potential constitutional amendment, then the obvious question is why not junk the whole thing.
Given modern partisan gerrymandering, one might have reservations about the House’s ability to make a fair and disinterested choice, but one can also imagine that the ravages of partisan gerrymandering could be limited in the future, whether by judicial decisions or by decisions by states who have become disgusted with their own past practices (which have occurred under both Democratic and Republican legislative control). That would do nothing to resolve the fact that the choice in the House is made on a one-state/one-vote basis, which means, obviously, that the single representatives of Vermont, Wyoming, Montana, Alaska, and North and South Dakota have voting power equal to the combined delegations of California, Texas, Florida, New York, Illinois, and Pennsylvania. Given my own politics, I rather like the idea that Vermont’s Democratic representative can counter-balance the predominantly Republican Texas delegation, and Professor McGinnis might be equally delighted that the Wyoming Republican can balance the entire 53-member California delegation, but I think there is no conceivable defense of this allocation of voting power under any 21st century theory of what American democracy has come to mean. One person/one vote indeed!
But one ought to be under no illusion that we can necessarily predict the way that a single state would vote even if we know the party affiliation of its representatives. After all, a Democrat or Republican who represents a district that voted reasonably heavily for the other party’s candidate might believe that what David Mayhew famously termed “the electoral connection” justifies voting the constituents’ preferences rather than that of the national party. Or one might imagine more nefarious possibilities, as many thought occurred in 1824, where intense wheeling and dealing could take place to induce a given representative, whose vote might determine the state’s vote in Congress, to vote for a given candidate. Ironically, one of the principal defenses of the Court’s egregious decision in Bush v. Gore, made most convincingly by Judge Richard Posner, is that recourse to the procedures set out in the Constitution and relevant statutes passed by earlier Congresses was itself too risky. A coup d’main by the Supreme Court was, from Posner’s perspective, far preferable to reliance on the political process. Anyone who takes this argument seriously should certainly have reservations about the process set out in the Constitution for breaking electoral college deadlocks. Nor should one think that the prospect of a deadlock is very small. The shift of a relatively small percentage of votes in both 1948 and 1968, when Strom Thurmond and George C. Wallace ran strong regional candidacies that received 39 and 46 electoral votes, respectively, would have required a choice by the House, with quite likely political chaos ensuing especially in 1968.
Professor Robert Bennett has recently subjected the Electoral College to his own critique in Taming the Electoral College. Though he is not so unrelentingly hostile to the institution as I am, he nonetheless focuses on yet additional problems, especially the so-called “faithless elector” who might, by voting “independently” rather than complying with the presumptive wishes of the electorate, generate an arguably illegitimate result. Or consider the question of what electors, who are only occasionally what might be termed widely regarded and leading members of the polity, should do if their candidate(s) were to die between Election Day and the meetings in December. As it happens, Professor Bennett believes that statutory solutions might be possible for some of these problems, thus avoiding the futility of attempting reform via constitutional amendment. But this does not in any way reduce the vulnerability to criticism of the Electoral College; it simply suggests that at least some reforms might be easier to attain than one might otherwise think.
I have focused on what might be termed “formal” problems of the Electoral College derived from its legal structure. But there are also pernicious “informal” consequences as well. Professor McGinnis, in a prior encounter, has challenged the common emphasis on the propensity of the Electoral College to elect candidates who did not win a majority of the popular vote by making the entirely valid point that presidential campaigns would not be dramatically different were elections conducted on a nationwide popular vote basis. George W. Bush may have lagged behind Al Gore in 2000, but one cannot confidently infer that the same outcome would have happened had Bush and Gore been contending in a national popular-vote election. He is surely correct, but that point cuts against the Electoral College itself, for it underscores the extent to which contemporary presidential campaigns have become perversely structured around the reality of the College and its generation of so-called “battleground states” that have become the obsessive focus of modern campaigns. In 2004, for example, a full 99% of all advertising expenditures by the two major-party candidates were concentrated in only seventeen of the states. Florida and Ohio alone accounted for more than 45% ($111 million) of the $235 million spent in all of these states. Wisconsin, another “battleground,” received a total of thirty-one candidate visits, as compared with two visits to California. New York received only one such visit! Other ignored states included Texas and Illinois. This means, among other things, that neither candidate was ever required to prepare serious speeches addressing the needs of the largest states in the Union. As a resident of Texas, I can certainly testify to the fact that it is significantly different from, say, Florida, one of the principal “battlegrounds” in both 2000 and 2004. This undercuts the argument that the Electoral College and the purported benefit given to large states by their ability give the winner of a given state all of the state’s electoral votes (and thus deprive the losing minorities of any representation at all in the College) undercuts, at least to some extent, the small-state bonus. Only some large states are “battlegrounds,” and there is no reason at all to believe that the lucky few are necessarily proxies for their ignored sister states.
From a political scientist’s perspective, the Electoral College is an outstanding example of the importance (and costs) of “path dependence,” whereby decisions made at time X become entrenched and shape future politics, for good and, in this case, decidedly for ill. Perhaps it is correct that there is nothing we can do about the College. But that is completely different from a normative defense of the constitutional iron cage built for us by Framers who were necessarily completely ignorant of the shape the country would take in the ensuing two centuries. I look forward to reading the attempts by two esteemed colleagues to defend the indefensible.
Two Cheers for the Electoral College (and Two Cheers Is All That Can Be Expected for an Electoral System)
I must decline the first invitation of Professor Levinson’s nicely executed attack on the Electoral College. I readily concede that it might well be possible to devise a somewhat better system for electing the president than the Electoral College. Our Constitution is surely not perfect in this as in other respects. But the salient question in politics is always one of alternatives and thus the issue before us is to compare the Electoral College not with the best law that could be enacted but with a range of possible laws that might be enacted. If one believes, as I do, that the Electoral College works pretty well and is risk averse about changing basic political institutions, one will be loath to innovate, given the vagaries of politics and unpredictability of the content of amendments and their interpretations.
In my view, the Electoral College fulfills the three essential criteria that any election for a president must meet in a democracy. First, it measures what can be measured of the popular will sufficiently well to make sure that the president has a popular basis of support. Second, its results tend to give the president substantial political legitimacy. Finally, it enables democracy to fulfill its core but modest function—making it more likely that leaders will govern in the public interest rather than in their own interest or in the interest of narrow parochial factions.
First, all any presidential election system can assure is that the winner is supported by a substantial portion of the electorate. It is impossible in close elections to make sure that any political figure is supported by a stable majority of the electorate. Thus, Professor Levinson’s main complaint—that the Electoral College and popular vote sometimes diverge—is not very powerful, because in those cases the margin of error is greater than any measure of stable popular support. If the election were held a few days later or even if the weather patterns were different, we might well get a different result regardless of the electoral method used. For instance, in addition to the examples of close elections provided by Professor Levinson, many observers think that Gerry Ford would have beaten Jimmy Carter in both the popular and electoral vote if the election had been held a week later. In a world of fickle voters where many make their decisions at the last moment based on evanescent matters, the errors in measuring real support are far greater than the divergences between the Electoral College and other reasonable election systems.
Our current electoral system thus accomplishes what an electoral system can deliver about as well as a popular vote system. It eliminates candidates without a substantial basis of support, like Pat Buchanan or Ralph Nader. Over the course of time it has also measured changes in popular sentiment, allowing shifts to be represented by the policies advocated by those elected president. If one is dispassionate, it is hard to say that the course of American history would have been better with the popular vote, particularly recognizing, as Professor Levinson now candidly does, that the winner of the popular vote might have been different if constitutional rules had made the popular vote decisive. For every person who dislikes the Electoral College winner who may have lost under the popular vote (like George W. Bush), there is another person who reveres the electoral vote winner who might have lost under a popular vote (like Lincoln).
Professor Levinson’s other complaints about the Electoral College also do not show that it fails in any essential function. He argues that that the Electoral College redounds to the advantage of small states. But the states actually most advantaged by the current system are large states. It is true that small states get an advantage due to the “senatorial bonus” (the two electoral votes awarded any state regardless of population). But so long as states vote under rules awarding the winner all the state’s electoral votes, this advantage is overwhelmed by the greater likelihood that the large state will prove decisive. Mathematicians better than I have calculated, in fact, that the voter in California counts more than twice as much as the voter in Wyoming in a presidential election. Oddly enough, the Electoral College compensates in some measure for the gross disadvantages large state voters suffer from the malapportionment of the Senate. I know Professor Levinson objects to the structure of Senate as well (with greater reason than to the presidential election system), but until that structure is changed, he may want to reconsider at least this aspect of his opposition to the College. This point is a small example of a larger truth. Changing complex rules in a reticulated system may have secondary effects not apparent on the surface.
Small states do enjoy a more modest advantage over some middle size states because of the senatorial bonus, but there is no reason to believe that this is likely to be decisive unless the states with one or two members of Congress differ systematically in their preferences from the rest of the Union. And such small differences are likely to be swamped by the inherent difficulty of measuring stable popular sentiment in a democracy.
Professor Levinson also observes that the Electoral College makes candidates pay attention to swing states rather than the nation as whole. This tendency does seem to be a defect. But a system of popular vote will also cause candidates to pay more attention to some voters rather than others, most importantly the voters who cost the least per voter to turnout. Thus, candidates are likely to campaign more in cities than in rural areas and more in affluent areas than poor ones. This defect of the popular system may be even more substantial than the current focus on swing states, because the voters in swing states are likely to be more heterogeneous than voters chosen by low turnout cost. Both the popular vote and the electoral vote will not actually treat all voters equally in a practical sense, but no system can be devised that will have equal effects, given that voters are only equal as matter of law, but otherwise differently situated.
The Electoral College also performs well, and perhaps better than the popular vote, in the second important goal of an electoral system: bestowing legitimacy on the president. It has been noted that the Electoral College tends to magnify the winner’s margin of victory. Particularly among the general public as opposed to the political cognoscenti, this greater margin bestows a greater legitimacy. The sense of legitimacy is especially important for the president because in our system the president is not only the head of government, but the head of state, unifying the nation in times of crisis.
Legitimacy is aided simply by the venerable nature of the system. A large majority understands the basic rules of the game and knows that these rules were not invented with any current election in mind. Given its longevity, even the divergence between the popular vote and the electoral votes does not detract much from the legitimacy of the president. For instance, after the election of 2000, President George W. Bush was seen as legitimate in all sectors of society with the possible exception of university professors. Transitioning to a new system, however, would raise questions about whether its details were structured to aid one or the other of the two great parties. Again, I do not wish to argue that this cost is huge or that in time it would not dissipate, but it is a significant cost not faced by our current system.
Moreover, as Professor Walter Dellinger, an advisor to Democratic presidents, has written, the devil is in the details of a popular vote system. According to Professor Dellinger, third party participation in a popular vote may give third parties greater leverage to distort the results. On the other hand, a runoff election is likely to depress voter turnout in the second round. Professor Levinson appears to advocate a single transferable vote system, but that system presents a voter with at least slight complications and even slight complications confuse many voters, who are inattentive, ignorant, or, as it were, cognitively challenged. Any popular vote system also has other potential problems. If there is a close popular election, we face a national recount, which is potentially more destabilizing than the local unpleasantness of 2000. Perhaps these problems can be sorted out, but I fear it as likely that a national popular vote will replace one set of defects with another. Moreover, there can be no certainty that the optimal reform will in fact be passed.
I address briefly subsidiary complaints. Levinson notes the danger of the faithless elector but himself observes that my colleague Robert Bennett has shown that these problems can be handled by statute. He also worries that the election could be thrown into the House of Representatives where the decision is made by state delegations, each with a single vote. Once again, elections decided by the House are likely to be so close that we cannot tell which candidate would have stable majority but either candidate is likely to emerge with sufficient support to govern. Moreover, even if House determinations were a problem, a relatively straightforward constitutional amendment could provide that a candidate be elected with a substantial plurality rather than a majority of the electoral vote, thus making it highly unlikely that elections would ever be thrown into the House.
In closing, let me suggest that the debate about the Electoral College today is as much about the purpose of democracy as its mechanisms. One reason that I am not bothered by the Electoral College is that I have what David Held has called the “protective idea of democracy.” Under this conception, democracy is largely valued as a mechanism to assure that government will not be used to advantage a distinctive class of rulers. Protective democracy diffuses power through society so that politics will not interfere with, but simply sustain the framework for, the sources of real happiness—exchanges within the family and the market. The current method for electing the president in conjunction with our legislative elections accomplishes this modest goal.
But if one believes in what Professor Held describes as participatory or social democracy, the Electoral College may seem very unsatisfactory, particularly in its symbolism. Oversimplifying a bit, under the model of participatory or social democracy, the legitimacy of all social institutions ultimately depends on popular approval and should be subject to a continuous process of social reform. Thus, even if it is impossible to capture a stable majority with the election of a president, it is important to appear to do so if majority will is the source of legitimacy. Accordingly, it is not surprising that as the United States flirted with social democratic ideas, the Electoral College, which reflects the Framers’ more circumscribed view of democracy’s purpose, has come under attack. In a recent book, Professor Levinson himself combines his attack on the Electoral College with an assault on other features of the Constitution, like the presidential veto, which are in fact designed to insulate the order of civil society from rapid social reform by majority will.
But if one believes, as I do, that social democracy is seriously wrong-headed and that majority rule in political decision making is far from sacrosanct, one will welcome the symbolism of the Electoral College. Its structure on its face rejects the notion of unmediated popular sovereignty—a notion that has made it harder to recognize that society is legitimated not by majority will, but by principles of natural justice, like the right to liberty and property. By giving states a role, the Electoral College includes within its structure elements of subsidiarity—a principle of governance that facilitates the exercise of these rights. Thus, I count it as a virtue, not a defect, that the symbolism of the Electoral College reminds us that simple majority will is not the legitimating feature of society, but that instead popular consent is merely an instrument to protect the deep and enduring principles that make us a free people.
Rebuttal by Daniel H. Lowenstein — Five Inconceivable Reasons To Support the Electoral College
Professor Levinson says the “only conceivable argument” for retaining the Electoral College is a “basically Burkean one,” namely that the Electoral College is “our unique method” (Professor Levinson’s emphasis). Professor Levinson is unfair to Edmund Burke, who was one of the great reformers of his day and would have scoffed at the suggestion that an obnoxious practice should be preserved because it is our way of doing things.
But there is a different aspect of Burke’s thought that is basic to Professor Levinson’s and my different views on the Electoral College. Burke saw government as a practical art, to be approached with circumspection or boldness as the occasion may require, but always informed by experience and prudence. He had little tolerance for the “Sophisters” of his time who sought to design governments on theoretical and mathematical bases.
Professor Levinson’s main objections to the Electoral College as an instrument of government are distinctly of the theoretical and mathematical kind. Thus, he worries at length that many presidents have been elected with less than a majority of the popular vote and a few have been elected with less than a plurality of the popular vote. He also agonizes that votes cast in small states are given more weight than votes in large states. As Professor McGinnis shows, it is doubtful whether Professor Levinson can hold his own in that part of the field. Even if he can, these seem to me to be minor concerns.
Admittedly, “rule of the majority” is a popular slogan, giving the opponents of the Electoral College a leg up in popular debate. So far as that goes, I believe in majority rule at least as much as the next person—unless the next person happens to be one of Burke’s Sophisters. But the “republican principle” pointed to by Madison in Federalist 10 was not abstract majoritarianism, as Madison made abundantly clear in that essay and throughout his contributions to The Federalist. The popular principle at the heart of Locke’s Second Treatise, repeated in the Declaration of Independence, is consent, not majoritarianism. As can be seen from Professor McGinnis’s essay, it is risible to suggest that the Electoral College as it operates in the United States is a departure from the principle of consent or from the republican principle.
Before I give reasons for supporting the Electoral College, let me respond to Professor Levinson’s “challenge”: Would I advise a new democracy to adopt the Electoral College? No. I am not smart enough to tell a new democracy how to structure itself. Were I transported by a time machine to the Philadelphia Convention of 1787, would I sit quietly while the Convention incorporated the Electoral College into the proposed Constitution? Yes. I think that upon emerging from the time machine, even I would have enough sense not to lecture the likes of Madison, Franklin, and Washington on the principles of government. True, even those wise men were not wise enough to foresee how the Electoral College would operate, but I would not imagine that I could do better than they.
As I turn to the affirmative case, I am confronted by Professor Levinson’s dictum that there are no conceivable arguments for the Electoral College other than the faux-Burkean argument I have eschewed. Therefore, I offer five inconceivable reasons to preserve the Electoral College.
1. The Electoral College turns the many winners who fail to win a majority of the popular vote into majority winners. It also magnifies small majorities in the popular vote into large majorities. These effects of the Electoral College enhance Americans’ confidence in the outcome of the election and thereby enhance the new president’s ability to lead. Professor McGinnis addresses this point effectively, so I shall not elaborate further.
2. The Electoral College causes presidential elections to be significantly oriented around states. Perhaps because I spent eight years in the state government of California before I became an academic, I share many of the popular prejudices about the inside-the-Beltway mentality and the arrogance of the federal government. Against all the pressures of nationalization, it is important to maintain the states as strong and vital elements of our system, both in practice and in public understanding. Unlike some conservative jurisprudes, I do not believe constitutional limits on the powers of the federal government are a promising way to accomplish this. In practice, the Electoral College is by no means the most important institution we have for strengthening the states, but neither is it by any means the least important.
3. The Electoral College produces good presidents. True, we’ve had a few lemons and a larger number of unmemorables. But we’ve had a remarkable number of remarkable leaders. The Electoral College has produced Washington, Jefferson, Jackson, Lincoln, Cleveland, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, and Reagan. None of us may approve of all of these without qualification, but taken together, it is a pretty big group of distinguished chief executives. Probably the only country in the world that could point to an arguably comparable set of chief executives is the United Kingdom, and they, like us, elect their executives indirectly.
Professor Levinson might respond to this history in a manner akin to W.S. Gilbert’s encomium to the House of Lords, which included the following:
When Wellington thrashed Bonaparte, as any child can tell,
The House of Peers throughout the war,
Did nothing in particular,
And did it very well.
In other words, Professor Levinson might argue that the Electoral College is not the cause. These or equally distinguished presidents might have been selected by a popular vote. So they might have. But “did” is better than “might have.” A lot better, in the eyes of us anti-Sophisters.
4. As I mentioned above, the kind of Burkeanism I subscribe to is the kind that places a high premium on learning from experience. The experience of the last several years has made two additional benefits of the Electoral College evident.
The first is the lesson from Florida 2000, that the Electoral College has the great merit of confining such election conflicts to one state (or a few, as in 1876). It is true that there is some weight on both sides of the scale on this question. A squeaky close race in a single state is more likely than a squeaky close vote in a national popular election, because of the smaller number of total votes. The greater likelihood of a contest at the state level no doubt holds, even when one adds that it needs to be a pivotal state in the Electoral College. Point for Professor Levinson.
But the greater point is that both types of problem are very unlikely, though both are also possible. So the tiny absolute difference in the probability is outweighed by the far more catastrophic effects that would occur if we were confronted by a Florida-type conflict in which the whole country was up for grabs. Game for the Electoral College.
5. As recently as a year or so ago, I was saying that although I support the Electoral College, if I had the power I’d reform it to avoid the “faithless elector” problem, which both Professors Levinson and McGinnis address. I was wrong. If we solved the faithless elector problem by making the Electoral College an automatic process rather than one depending on humans, we would lose what might some day turn out to be the Electoral College’s greatest benefit. (There may be other ways to solve the faithless elector problem without the implication I discuss here, but I’ll let that pass for now.)
I should have learned this lesson from the controversy in the 2002 New Jersey Senate election, when Senator Robert Torricelli withdrew his candidacy for reelection after having been nominated in the Democratic primary and after the apparent deadline under New Jersey law for the naming of a replacement candidate. (As most readers probably know, the New Jersey Supreme Court bent the New Jersey statutes and its own precedents into a pretzel for the good reason of allowing the Democrats to name former Senator Frank Lautenberg as a replacement candidate. Lautenberg was elected.)
It took two comparable incidents in 2006 for the point to penetrate my skull.I refer to the Republicans’ unsuccessful efforts to replace House nominees on the ballot who stepped down in Texas and Florida because of scandals. The point is that nominees may die, become disabled, or for other reasons become manifestly unsuitable for the office. Serious though the problems were in the three cases to which I have referred, they were trivial compared to the problems we would face if a presidential nominee—or, even more of a problem, a presidential winner after the election—died, became disabled, or became manifestly unsuitable for any of a variety of possible reasons.
True, one might try to legislate on this problem directly (and probably we should, at least to cover the period after the electoral votes are cast). But it would be tough. There would be three problems: defining the circumstances in which the legislation would go into action; establishing a process for applying the definition to the actual circumstances; and deciding how a replacement should be chosen. These would all be hard problems to solve in legislation, where some neutral or at least objective standards would be needed. True, death would be easy enough to determine and disability would not be too difficult, but manifest unsuitability would be a tough enough nut, I think, to withstand any statutory nutcracker.
What is needed for such problems is a political solution. And the Electoral College is ideal for the purpose. The decision would be made by people in each state selected for their loyalty to the presidential winner. Therefore, abuse of the system to pull off a coup d’etat would be pretty much out of the question. But in a situation in which the death, disability or manifest unsuitability plainly existed, the group would be amenable to a party decision, which seems to me the best solution.
To be sure, it is not a particularly likely situation. But three major incidents in a space of four years make it clear that it is not out of the question. The Electoral College greatly shortens the period during which we would have no handy means of coping with the problem. Even that period could be eliminated if we allowed a very high percentage of the electors who voted for the winner—say, 90 percent—to petition to reconvene the Electoral College any time up to the inauguration. Giving up this and the other benefits I have identified in exchange for Professor Levinson’s mathematical niceties strikes me as a very bad bargain.
I have enjoyed firing off inconceivable arguments and look forward to what will surely be a stimulating response from Professor Levinson.
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