Proposed Constitutional Election Amendment

[Bryan Wildenthal]

Actually, my assessment of my proposal's political chances is not far
different from Greg Sisk's.  Hey, I'm an academic, so of course it's an
academic exercise.  :-)

I'm a bit puzzled by how the electoral college reduces, or my proposal
increases, the chances of a "narrow regional" candidate prevailing over one
with "broad cross-country support."  Look, this is a democracy (or it's
supposed to be anyway!); a majority can be assembled in an almost infinite
number of ways.  I'd say that the candidate with the most votes (wherever
they may be found) is the one with the "broadest" support, and the candidate
with fewer votes (wherever they may be found) has "narrower" support.  Some
may suggest that Bush "deserved" to win because he had "broad" support
across that huge swathe of red on the map, while Gore prevailed only
"narrowly" in those few blue states concentrated on the Pacific, Great
Lakes, and Atlantic coasts.  But of course the areas where Gore prevailed
are more heavily populated than the hinterland that Bush swept.  Is "broad"
support based on acreage or voters?  One could argue Bush was a "narrow
regional" candidate with majority support only in the southeast and sparsely
populated Western and midwestern states.  The fact is, Bush and Gore both
got many votes in every city, town, and rural area across the country.  They
both had support broadly spread across the country, and the two final
candidates in any reasonably close race always will.  One will always have
at least slightly more support (that was Gore in November 2000, just for the
record).  I say that one should take office.  I don't think this requires
much high theory to justify; most grade-schoolers agree that the kid who
gets the most votes should win the class election.  I have yet to hear any
convincing or even very coherent argument for why anyone's votes should be
weighted (in a national, single-office election, as opposed to a bicameral
legislature designed on federalist lines) based on where they live.  And
don't let my partisan sympathies cloud the issue.  How happy will all of you
my conservative/Republican friends be if Bush is defeated in 2004 because
Gore (or Hillary or whoever) squeaks by in the requisite electoral college
states, while losing to Bush by a percentage point or two in the popular
vote?

I'm also puzzled why it's "asking too much" to require 50% in a runoff.
Whenever a run-off occurs, you're guaranteed to produce a winner with
50%-plus, which seems highly desirable to me, so why not ensure that we get
it in every case?  Why is a run-off a good thing if the first-place finisher
gets 39%, but a bad thing if he/she gets 40%, or 45%?  It is entirely
possible in each case that the first-round leader is an extremist
emphatically rejected by a majority.  I don't care so much how "weak" the
winner is perceived to be.  Whoever sits in the Oval Office is not going to
be that "weak," no matter what.  The veto is the veto.  Nuclear missiles are
nuclear missiles.  My concern is that the winning candidate is, in the final
analysis, truly supported by the most voters.  40-45% may be a "critical
mass" (whatever that means) but it's not a majority, and therefore not the
most desirably legitimate mandate in a democratic system.  The time,
trouble, or expense of the run-off hardly seems severe enough to justify
sacrificing democratic principles.  We currently have umpteen primary
elections spread over almost a year before the general elections.  Many
nations have runoffs with 50% requirements, and all of them conduct their
elections on a far shorter and more efficient schedule than we do.

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Greg Sisk [mailto:greg.sisk at DRAKE.EDU]
> Sent: Friday, January 26, 2001 1:42 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Proposed Constitutional Election Amendment
>
>
> 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