The Republican Electoral College Near-Death Experience

[Bryan Wildenthal]

Just to follow up with a little comparative constitutional law. Several
list members commented that direct popular vote is not that common in
other countries for the national executive leader. There is certainly
wide variety of election systems and executive leader set-ups
(president, prime minister, etc).

But here is a partial list of countries that I believe do have a simple
popular vote election of a unitary national executive, with a run-off to
ensure the final winner has absolute majority support:

France, Russia, Ukraine, South Africa, Mexico (no runoff), Brazil,
Argentina, Uruguay, Chile, most other Latin American countries (I
think), South Korea, Taiwan, Indonesia, and even Afghanistan! Most other
established democracies have parliamentary systems that aren't really
comparable anyway. I think it is actually quite a rarity for a
democratic nation to have a strong unitary executive (leaving aside the
distinct parliamentary systems) who is NOT elected by simple popular
vote. Indonesia, for example, used a peculiar electoral college system a
few years ago, but in its recent, very successful national election,
"graduated" to direct popular vote.

The U.S.A. is still waiting to "graduate," after more than 210 years!
The U.S.A., proud boaster as the world's oldest democracy, is looking
distinctly creaky and out-of-date!

Bryan Wildenthal
Thomas Jefferson School of Law

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bryan Wildenthal
Sent: Friday, November 05, 2004 10:18 PM
To: conlawprof at lists.ucla.edu
Cc: bryanbhw at ix.netcom.com; daleacarpenter at aol.com; bryanw at gmail.com
Subject: The Republican Electoral College Near-Death Experience

Why is it that many rightwing Republicans are more focused this week on
clamoring for Senator Arlen Specter's head because he warned Bush not to
go for an anti-Roe Supreme Court appointment (and then ludicrously
claimed not to have issued such a warning)?


You would think instead that Republicans would be clamoring to abolish
the Electoral College, which came VERY, VERY close in this election to
foisting on the country President John F. Kerry (the most liberal member
of the U.S. Senate, some have said), despite his loss of the popular
vote by more than a 3.5-million-vote margin.

Democrats earned ample reason, one would think, to hate the EC in 2000,
when it foisted on the country a rightwing president who was rejected by
exactly the same narrow but decisive 51-48 popular majority (adding up
the progressive Gore + Nader vote, with Gore alone outpolling Bush by
half a million) that Republicans now claim as a mandate for Bush and
goddess knows what rightwing mischief now in store for all of us.

I always found it odd that my fellow Democrats spent years complaining
bitterly about the Florida recount, while utterly losing sight of the
big picture -- that the country is saddled with an outrageously
antiquated, dangerously unpredictable, monstrously un-democratic, and
(always potentially, and in three cases actually) perversely
anti-majoritorian presidential "election" system.

As many on this list know, I drafted a proposed constitutional amendment
in early 2001 to abolish the electoral college and replace it with a
system something like what even many Third-World nations manage just
fine, namely a democratic popular vote election to choose the national
leader. What a concept! I sent it to my Senators and Congresswoman (all
Democrats). It got either a polite acknowledgment letter or was
completely ignored. I am unaware of any significant Democratic political
effort put into abolishing the electoral college, even though this
outrageous and archaic device, in my view (and I think of many of my
fellow Democrats), drastically altered the course of American and world
history for the worse, by giving us President George W. Bush instead of
President Gore.

There are at least three different scenarios, each VERY plausible, by
which Kerry came VERY close to yanking victory from the jaws of
popular-vote defeat by Bush this last Tuesday. If Kerry had gained just
137,000 more votes (possibly fewer, depending on provisional vote counts
still to come), in just one state, Ohio, he would have beaten Bush
272-266 in the EC. Give Bush Ohio, and say Kerry eaked out 141,000 more
votes in Iowa, New Mexico, and Colorado. Kerry steals it 273-265. Give
Bush Ohio AND Iowa and say Kerry eaked out 149,000 more votes in New
Mexico, Colorado, and Nevada. Kerry steals it 271-267 (exactly mirroring
Bush's 2000 steal). Change only 45,000 votes -- ONE-TWENTIETH OF ONE
PERCENT -- 0.05% -- of the total cast -- in Iowa, New Mexico, and
Nevada, and Kerry would have sent it to the House, 269-269. Granted, the
House (as we now know it will be constituted in January) would have
elected Bush, but that depended on a safety net that might not have been
there. The popular vote would have been irrelevant -- it and $4.50 cents
would have gotten Bush a cup of Starbucks. Bush's handsome
3.5-million-plus margin would hardly have been dented by any of these
vote shifts, and yet that's FOUR different ways Kerry could have screwed
him in the EC.

These are not far-fetched scenarios, like the one in 1976 that would
have required shifting a few votes in Ohio and a much larger
proportional shift in Hawaii (and I think one other state) to swing it
to Ford instead of Carter.  Hawaii was not that close in percentage
terms. It would have been a highly unlikely upset for Ford to carry
Hawaii. Each of the Kerry scenarios I have sketched out could EASILY
have happened. Ohio, Iowa, New Mexico, and Nevada each went to Bush by
2-point or smaller margins. Kerry led in many late polls in all four,
especially the latter three. Kerry won some states that Bush had led in
many late polls (Wisconsin, Minnesota, New Hampshire). Colorado went to
Bush 52-47, but as was widely reported, the economy was very bad there
and several pre-election polls showed Kerry leading in Colorado in the
final weeks. A Kerry victory in all five of those states could easily
have happened, even without any major change in the national popular
vote picture -- and Kerry VERY easily could have won just one, or three,
here or there, enough to swing it.

Can you imagine the howls of Republican frustration? (Probably equal to
the howls from my fellow Democrats now contemplating what could so
easily have been.) I don't think the Republicans would have been
deterred by the delicious irony of Bush being hoisted by the same petard
that gave him four undeserved years in the White House in the first
place. I think we would have heard a great deal from rightwingers about
the evil and anti-democratic (small-d!) Electoral College, and how it
must be a tool of Satan to give the White House to some Massachusetts
ultraliberal rejected by a 3.5-million-vote nationwide majority.

Republicans should be having cold sweats and heebie-jeebies over their
near-death Electoral College experience! They should be marching in the
streets! Many of them spent much of this year demanding an utterly
unnecessary (not to mention mean-spirited) constitutional amendment to
ban gay marriage. Yet they have no apparent or reported interest in an
amendment to abolish an archaic institution that nearly robbed them of
what many of them surely regard as a God-given victory of tremendous
importance?

So why have we heard no demands from EC reform or abolition, from either
the Democrats in 2000 or Republicans in 2004? Do we worship the
anachronistic forms of the past so blindly? This all provides some
insight, I think, into how the country could be so asleep at the switch,
and have such a short attention span and lack of interest in basic
facts, as to elect Bush in the first place (notice I didn't say
re-elect).

Cheers,

Bryan Wildenthal
Thomas Jefferson School of Law

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