The Legitimacy of the Electoral Winner

[Dellinger, Walter]

   Putting Florida aside for a moment:  It has often been suggested that a
constitutional crisis would ensue if one candidate lost the national popular
vote while winning the electoral vote.  This has not happened.  When (and
if) it is established that Governor Bush carried Florida, I believe his
legitimacy will be recognized even if he lost the national popular vote.   I
am pleased to see that few on this list agree with suggestion of some that
Governor Bush might legitimately be denied the Presidency by persuading
electors from states Bush carried to cast their votes for Vice President
Gore on the grounds that Gore carried the national popular vote.
   I do not believe that the dominent expectation at the Constitutional
Convention was that electors would and should exercize their own discretion.
Hamilton does have an oft-quoted sentence to that effect in Federalist 68,
but he was not in Philadelphia for the critical debates and his view was not
that of those who spoke at the Convention.  Attached are excerpts on this
point from a piece I wrote for election day, but did not publish.  If
Governor Bush wins Florida, and thus carries the electoral vote, he ought to
be considered fully legitimate, and his policies opposed, by those who
disagree with them, on their merits.

                    *    *    *

Whether or not we would choose to revise our present electoral system
through Constitutional amendment in the future, it is our fundamental law
for now.  Contrary to conventional wisdom, the electoral system works
essentially as the framers intended  -- a system that has the President
chosen on a state-by-state basis, but one which reflects the judgment of the
people of each state.

It was never assumed that a group of elite electors would meet together and
choose the person they wanted to be President.  The electors were in fact
expected to cast their votes for the choice of the people of their states.
For this reason, delegates to the Constitutional Convention who supported
election of the President by the people strongly favored the electoral vote
system.  Although states were given the authority to determine the manner of
choosing electors, most delegates correctly assumed that states would
generally provide for the popular election of electors pledged to cast their
votes for the presidential candidate favored by the voters of their state
Not long after the adoption of the Constitution, in fact, virtually every
state provided for its Presidential electors to elected by the people, and
assumed them to be bound  -- by law in many states and by moral obligation
in the others --  to faithfully reflect the choice of the voters of their
state. [As far as I know, nobody suggested in the early 1800s that having
electors elected by popular vote and be pledged to candidates was some
fundamental change in the founder's expectations -- becuause it was not]

        There are some quirks in the system for choosing the President but
they generally have to do with the issues that arise in the highly unlikely
event that no candidate receives a majority of the electoral votes and the
choice is conferred upon the House of Representatives.  The situation that
is an actual possibility in this election - an electoral vote winner who did
not receive the most  popular votes - is neither a quirk nor an anomaly.  It
is instead a fundamental aspect of constitutional Federalism. The reason
that the electoral winner may diverge from national popular results is
simply this:  in deference to federalism, the Framers decided to have the
President chosen by the States, with each state given a number of electoral
votes reflecting its population.  This is no more a "quirk" that the fact
that the Senate is controlled by a majority of the States regardless of how
many voters nationwide vote for Republican or Democratic senatorial
candidates.

The way we choose our chief executive is not in fact fundamentally different
from how the chief executive is chosen in parliamentary countries like
England and Canada.  The person who becomes Prime Minister is not
necessarily the one whose party receives the most votes nationwide, but the
one whose party carries the most parliamentary constituencies.  No one
considers it to be a "constitutional crisis" if more votes are cast for
Conservatives parliamentary candidates nationwide, but Labor narrowly wins
more seats and thus installs the new Prime Minister.

The electoral system for choosing the President reflects the Framers'
resolution of a number of competing goals.   Many delegates opposed having
the President chosen by Congress because they strongly objected to making
the chief executive dependent upon the legislature for his office and his
reelection.  Some delegates like James Madison, who favored election of the
President by the people, realized the impracticability at the time of
running a single national direct election for an entire continent.  They saw
the electoral system as providing for popular choice, but on a more
practical state by state basis.  When Pennsylvania delegate James Wilson  --
by far the strongest proponent of  having the people choose the president --
first saw the plan for an electoral vote system, he "perceived with pleasure
that the idea was gaining ground, of an election mediately or immediately by
the people."

By giving each state the same number of electors as each has Senators and
Representatives in the House, the electoral system mirrors the
representation of the people in  Congress, but is not Congress itself.  The
casting of each state's electoral votes are determined directly by the
people of each state.  And because the President is not chosen by a direct
national plebiscite, the Constitution emphasizes that he is not the
embodiment of all power, but rather a constitutional officer in a system of
law in which no single branch of government, state or federal, reflects the
total will of the people.

   Walter Dellinger is a professor of law at Duke University, and an
attorney in Washington, DC.