Proposed Constitutional Election Amendment

[Greg Sisk]

Interesting proposal, although I disagree with the assessment of its
political chances.  I believe a proposal to abolish the electoral
college is doomed from the git-go.  Although I waffled on the issue
until recently and still could be convinced otherwise, I also have
been persuaded that there is value to the electoral college,
particularly in avoiding the prospect of a candidate winning a
national election with a narrow regional appeal rather than broad
cross-country support.

But assuming the merits of the idea, I have one important suggestion
-- I would suggest a run-off only if the winning candidate received
less than 40 (or perhaps 45) percent of the vote.  Demanding a
majority would ensure that run-offs become the norm -- no candidate
for president has received a majority of the vote in the last three
elections (Clinton 43% in 1992, Clinton 48% in 1996; Bush-Gore 48% in
2000); nor was there a majority winner in 1968 or, I believe, 1976).
Yet the fact that Clinton never received a majority of the vote did
not seem to weaken the presidency; moreover, even illustrious
presidents like Lincoln prevailed with only a plurality.  To be sure,
one would not want to have a president elected with less than some
critical mass of support -- such as 40 or 45 percent -- but an
absolute majority seems unnecessary and is asking too much in an era
of closely-divided political alignments.  The public is unlikely to
look favorably upon any proposal that would regularly prolong the
election cycle and routinely result in two elections being held,
given the additional costs to local communities in holding a second
election and the imposition on public patience.

Greg


>PROPOSED PRESIDENTIAL ELECTION AMENDMENT
>TO THE CONSTITUTION OF THE UNITED STATES
>
>drafted by Professor Bryan H. Wildenthal, Thomas Jefferson School of Law
>
>Copyright 2001 by Bryan H. Wildenthal.  All rights reserved, but permission
>to copy freely granted to all and sundry if attribution is made to
>Professor Bryan H. Wildenthal, Thomas Jefferson School of Law.
>
>See below, following the text of the proposed amendment, for some comments
>by me regarding various political and pragmatic considerations regarding the
>proposal.
>
>I will be sending copies of this to Senators Clinton, Feinstein, and Boxer,
>and
>my Congresswoman, Susan Davis (D-San Diego), for them to do with as they
>wish.
>Comments, of course, are welcome!
>
>Proposed 28th Article of Amendment to the Constitution:
>
>Section 1.
>
>         The second, third, and fourth clauses of the first section of the
>second article of the Constitution, and the twelfth article of amendment of
>the Constitution, are hereby repealed.
>
>Section 2.
>
>         The President and Vice-President of the United States, running on a
>single ticket, shall be elected by all citizens of the United States
>eligible to vote for any public office in the State or other area within
>the territory of the United States wherein they reside, or in the case of
>citizens residing outside the territory of the United States (including
>those serving in the armed forces), by all such citizens who are or would
>otherwise be so eligible in the State or other United States territory of
>their current or most recent legal residence, as if they were still
>actually residing therein.  Residency and eligibility to vote shall be
>determined in accordance with the Constitution as it existed before this
>article was ratified and with any applicable laws of the United States or
>of the relevant State or other United States territory.
>
>Section 3.
>
>         1.      The places and manner of holding the elections for
>President and Vice-President, and for Senators and Representatives in the
>Congress, including any primary elections, shall be prescribed by law in
>each State, and in the case of the election for President and
>Vice-President in each other United States territory, by the Legislature
>thereof, but the Congress may at any time by law make or alter such
>regulations.
>         2.      Voting by citizens residing outside the territory of the
>United States (including those serving in the armed forces) shall be
>conducted at such places and in such manner as the Congress shall by law
>provide.  Such citizens shall be entitled to vote for President and
>Vice-President consistently with the second section of this article.  They
>shall be entitled to vote for Senator and Representative consistently with
>the first clause of the second section of the first article of the
>Constitution, the first section of the seventeenth article of amendment of
>the Constitution, and any applicable laws of the United States or of the
>State in which they may have legal residency.
>         3.      The general elections for President and Vice-President,
>Senators, and Representatives shall be held on a single uniform day, as the
>Congress shall by law provide, which shall be not less than four nor more
>than six weeks prior to the commencement of the terms of the Senators and
>Representatives elected, and which shall be a Sunday or other national
>holiday.  Any primary elections for President, Vice-President, Senators, or
>Representatives shall be held at such times as the Legislatures of each
>State or other United States territory may by law provide, but the Congress
>may at any time by law make or alter such regulations.
>         4.      If no ticket for President and Vice-President, or candidate
>for Senator or Representative, receives a majority of all votes cast for
>any such office at the general election, a run-off election for such office
>or offices, between the two tickets or candidates receiving the greatest
>number of votes, shall be held on a single uniform day, as the Congress
>shall by law provide, which shall be not less than one nor more than two
>weeks after the general election, and which shall be a Sunday or other
>national holiday.
>         5.      At any primary, general, or run-off election for President
>and Vice-President, Senator, or Representative, all absentee and other
>ballots, including any ballots cast by voters residing outside the
>territory of the United States (including those serving in the armed
>forces), must be received and available for counting by no later than the
>day of the election for which they were cast, or they shall not be counted.
>
>Section 4.
>
>         The terms of the President and Vice-President shall end at noon on
>the fourth day of July, and the terms of the Senators and Representatives
>shall end at noon on the first Monday in June, in the years in which such
>terms would have ended if this article had not been ratified, and their
>successive terms if reelected, or the terms of their successors, shall then
>begin.
>
>Section 5.
>
>         The Congress shall have power to enforce this article by
>appropriate legislation.
>
>Section 6.
>
>         This article shall take effect only if ratified by the Legislatures
>of three fourths of the several States within seven years of its proposal
>by the Congress.  This article shall not take effect until one year after
>the first presidental election held after its ratification, or one year
>after the last presidential election held before its ratification if
>ratification occurs within one year after such election, except that the
>Congress and the Legislatures of the several States and other United States
>territories shall enjoy the legislative powers herein provided immediately
>upon ratification, in order to prepare for the elections held after this
>article otherwise takes effect.
>
>
>DRAFTER'S NOTES by Bryan H. Wildenthal, Thomas Jefferson School of Law:
>
>         The purpose of this amendment is to abolish the Electoral College
>and replace it with a simple popular-vote election for President, with a
>run-off in case no candidate receives an outright majority in the first
>round.
>
>         It also takes the opportunity to provide for run-off votes in
>Congressional elections, and to reform the current, ridiculously lengthy,
>late-autumn, non-holiday, Tuesday timing of elections, following an entire
>year of primaries and conventions.  It generally leaves it up to state law,
>and ultimately federal law, to implement the details within the parameters
>provided.  It would allow Congress to enact uniform nationwide legislation
>governing the timing of presidential primaries, for example, my hope being
>that the current presidential campaign schedule could be substantially
>streamlined and curtailed.  Every other democratic nation elects its
>national leadership in campaigns lasting only a few months or weeks.  For
>example, under this amendment, primaries could begin in January or February
>of the year in which the new President and Congress will take office.  A
>national primary for President (if Congress chooses to experiment with such
>a system) could be held (perhaps after candidates have tested popular
>support in a series of nonbinding state and regional primaries) in March or
>April.  The general election would be held in late April or early May
>(between 4 and 6 weeks prior to Congress taking office in early June), with
>any run-off elections required in early or mid-May.  The new Congress would
>be sworn in on the first Monday in June, and the new President and
>Vice-President on the Fourth of July (thus allowing a reasonable, but
>brief, time for transition).
>
>         It seems likely to be very difficult, perhaps impossible, to win
>ratification of an amendment abolishing the electoral college, because of
>the perception that this would diminish the influence of small states.  In
>my opinion, this perception is mostly false, since small states are largely
>ignored under the current winner-take-all electoral system, which tends to
>focus candidates' money and attention on the largest states with their huge
>winner-take-all "bonuses" of electoral votes.  For example, a candidate who
>appeals to all million or so voters in a small state can receive, at most,
>only the three or four or five electoral votes cast by that state.  But a
>candidate who successfully appeals to a strategically selected million or
>so voters in a large state (the million that puts them "over the top") can
>win not only the proportional number of electoral votes to which that
>candidate would be entitled based on their total votes in that state, but
>also the huge winner take-all "bonus" of all the remaining electoral votes
>cast by that state, a number which for California and many other large
>states totally dwarfs the total electoral votes for any small state.
>
>         In any event, whether the small-state perception is true or false,
>it is irrelevant.  The present arrangement is outrageously unjustifiable
>under the most elementary principles of democracy.  Under the proposed
>amendment, candidates' money and attention would go wherever the voters
>are, urban or rural, large or small state, regardless of race, gender,
>class, or any other division.  Every vote would have precisely equal worth,
>which after all is the essence of democracy.  I don't think it's worthwhile
>to propose any amendments or changes that would merely tinker with the
>electoral college.  The only hope for ratifying any amendment of the
>present arrangement is to mount a simple and compelling argument based on
>the idea that all voters are equal and in a democracy, the national leader
>should be the one supported by the majority of voters.
>
>         Arguments for granting enhanced representation to small states have
>some salience in the context of the bicameral Congress, where the equal
>representation for states in the Senate is counterbalanced by the
>democratically proportional representation of the House.  A minority cannot
>rule under that arrangement, not even over one branch of government, but
>may merely pose a check on what the majority may do.  But the notion of
>giving voters in small states (or any voters) enhanced influence in
>electing the single national leader who is supposed to have a mandate to
>govern the entire country, such that a candidate supported by a minority
>may triumph over a candidate supported by the majority, is irrational and
>undemocratic.  The resulting absurdity that the loser of the popular vote
>may win the Presidency -- that a minority may seize control of one entire
>branch of the government against the wishes of the majority -- has actually
>happened FOUR TIMES now, in the American presidential elections of 1824,
>1876, 1888, and 2000.
>
>         In 2000, a larger percentage of American voters opted for
>progressive presidential candidates of the left than in any presidential
>election since 1964, when Lyndon Johnson took 61%.  A total of 51% voted
>for Nader and for Gore (the first-place finisher), who both ran to the left
>of Carter in 1976 (50%), Carter and Anderson in 1980 (48% combined), or
>Clinton in 1992 (43%) or 1996 (49%).  Yet a conservative Republican who
>placed second by more than half a million votes, with only 48%, won the
>Oval Office and promptly began appointing hard-right-wingers to key
>executive positions.  And this can cut both ways:  liberal Democrat
>Humphrey in 1968 (43%) came very close to winning the presidency in the
>electoral college despite being defeated in the popular vote by Nixon, who
>together with his fellow rightwing candidate, independent George Wallace,
>took 57% of the total vote.  Regardless of whether the losing (yet
>victorious) minority voters reside in small or large states, are liberal or
>conservative, or whoever they may be, such outcomes are simply outrageous
>and undemocratic.  It may be pointed out that other "minority presidents"
>have taken office, such as Wilson, Kennedy, Nixon, and Clinton.  In those
>cases, however, the winner placed first with at least a plurality, and it
>appears quite likely that Nixon and Clinton (at least) would have won an
>absolute majority in 1968, 1992, and 1996 if a run-off had been held
>between the two major-party contenders.  In any event, such additional
>"minority victories" only underscore the need to abolish the electoral
>college system that produced them, and to institute a simple popular vote
>with a run-off, to ensure that the ultimate winner is supported by an
>absolute majority of all those voting.
>
>         Some may argue that the Framers of our Constitution adopted the
>system we have, however flawed it may be, and that we should therefore
>stick with it.  This argument, however, is based on a false premise.  The
>Framers adopted an electoral college system which they expected would
>involve the indirect election of the President by electors acting as
>distinguished and knowledgeable free agents without the influence of
>political parties, which only developed AFTER the Constitution was adopted.
>There was no presumption that electors would be chosen by popular vote, and
>certainly no expectation that they would be pledged to support a political
>party's candidate.  Like Senators, they could be chosen by the state
>legislatures.  Given the later development of political parties and the
>almost universal conviction that the President (even under the electoral
>college system) should ultimately be chosen based on a democratic popular
>vote, the present system is an anachronism and has been for more than 200
>years.
>
>         Furthermore, it is a dangerous and undemocratic anachronism.  Under
>the present system, there is a popular vote for President, but the vote is
>unfairly skewed and weighted depending on where voters live.  Electors are
>political party hacks pledged to support whoever wins the popular vote in
>each state.  The Framers of the Constitution never intended or envisioned
>such a system (indeed, they would have been horrified by it), and the
>American people have never voted for such a system.  Most Americans, until
>the civic education experience of the 2000 election, may have been unaware
>that the President was not chosen by direct popular vote.  The present
>system has now produced four overtly anti-democratic results (1824, 1876,
>1888, and 2000), two of which (1876 and 2000) produced prolonged confusion,
>uncertainty, and national crises of legitimacy for the eventual winner.
>The system is broken and it needs to be fixed.  It has been broken for 200
>years, but by luck of the draw we have escaped serious consequences except
>in the four elections mentioned.  How many more botched and destabilizing
>national elections, how many more national leaders chosen in defiance of
>the will of the people, must we tolerate before we finally fix it?
>
>Professor Bryan H. Wildenthal
>Thomas Jefferson School of Law
>2121 San Diego Ave.
>San Diego, CA 92110
>619-297-9700 x1509
>bryanw at tjsl.edu
>http://bryanbhw.home.netcom.com/prof.html

--
Gregory Sisk
Richard M. & Anita Calkins
   Distinguished Professor
Drake University Law School
2507 University Avenue
Des Moines, Iowa  50311-4505
515-271-4184
greg.sisk at drake.edu