The coming Coronation and the processual case for eliminating the Electoral College

[Tobias Barrington Wolff]

I apologize in advance for the length of this post.

It seems clear to me that Maureen Dowd is correct (for those of you who
read the N.Y. Times).  George W. Bush will be our next President because
his father's influential friends are willing to leave no step unpursued,
and no institution of government unsullied, in order to win the "total war"
that they intend to wage.  I have no illusions about the angelic integrity
of Al Gore or the Democrats -- I voted for him reluctantly -- but I am
shocked at the disregard that Bush's lieutenants have shown for any values
larger than installing Bush in the White House.  I think that the Democrats
will decline to follow suit, whether from a sense of integrity and
responsibility or a naked assessment of their long-term interests -- I will
readily concede that the latter is the reason -- and Bush will take office.

It is not overstating the case to say that the threats that Baker is now
issuing are frightening.  Stability in elections, as in adjudication,
depend upon procedural regularity.  What has happened thus far falls
entirely within the bounds of such regularity.  I express no opinion on the
correctness of the Florida Court's holding yesterday -- I know nothing of
Florida law (though I did listen to the arguments in their entirety and it
seemed to me that the statutory scheme had internal contradictions that
could admit of either interpretation).  But pursuing that option -- asking
for the recounts that are provided for by statute, and then asking the
courts to interpret the proper application of those statutes -- was
entirely regular and proper.

What Baker is now threatening is of an entirely different character.  He is
threatening to initiate a separate, independent electoral process -- a
maverick vote of the legislature either to amend the statutes in question
or, I think more likely, simply to vote up their own slate of Republican
electors -- and to invite a clash between that process and any election
results that are returned pursuant to the Court's order.  Baker is relying,
I take it, on the assumption that the current Republican Congress will
select Bush electors over Gore electors, if Gore does not concede before
this conflict is provoked, and he is probably correct.

If this election were to end with such a conflict, I'm not sure just where
its ramifications would stop being felt.  It would nakedly expose one of
the dirty secrets of our Constitution -- that there is no right to popular
election of the Electoral College.  Popular Presidential elections happen
at the grace of state legislatures.  If a legislature can send up its own
slate of electors and provoke a clash of the present kind, what is to stop
them from doing so in future elections, for other reasons?  Say the
legislature thinks that one candidate was dishonest in the election and
"stole" it that way in that fashion, or that the registered voters in its
State do not properly reflect the State's citizens at large, or that a
spoiler candidate had inappropriately skewed the election results, or that
it just plain didn't like the elected candidate.  Once this "maverick
legislature" option is put in play, and validated (as I fear it would be in
the present election), what is stop future legislatures from pursuing
it?  Presumably, the only answer is, the political ramifications they might
face from their own constituents in future elections.  I have no confidence
that this would serve as any real impediment to such an action.

The fundamental flaw of the Electoral College is that it permits -- indeed,
it invites -- such irregularities and instability.  Indeed, it is an
amazing fact that we have not seen a situation like this before in this
century.  Whatever substantive benefits it can be argued that the College
confers over direct popular election -- giving more influence to small
States, or preventing huge, united voting blocks in particular regions of
the country from exercising dominance over the entire Nation in a
Presidential election -- those putative benefits must be measured against
the processual costs inherent in the mechanisms that the College
establishes.  Those mechanisms ultimately leave it to political clashes,
rather than the application of preestablished rules, to resolve any true
conflicts that arise in the appointment of electors.  In a system that does
not encourage (or, in many respects, permit) parliamentary-style power
sharing within the executive, this is insanity.

The processes established to govern the selection of electors are
perniciously flawed.  They should be radically reformed, or simply replaced
by direct popular election.  In a close election like the present one, much
better to have a nationwide recount, under a uniform system of vote
tabulation and uniform standards of vote recognition, than to rely upon a
system that envisions naked, partisan political struggle as the ultimate
mechanism for resolving disputed elections.

-- TBW
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