The End of the Electoral College?
COYLE at law.edu
Fri Oct 15 09:19:36 PDT 2004
OK, I'll bite. I'm one of those neanderthals who defends the Electoral College for several reasons (see Martin Diamond's classic article), one of the most practical and important of which is Dan's point that it focused the litigation in a single state. I realize I'm stomping on a sacred, or at least popular, cow here, but I find much discussion discussion of "broader democracy" etc either naively romantic or disingenuous. Leaving aside concerns about a clueless electorate determining our destiny (admittedly less of a problem in a widely followed presidential election), or solemn pronouncements that their cumulative chad punches are the "will of the people," the practical problem is that the recording of the popular vote is not, and never will be, entirely perfect. Errors in recording are compounded by errors or corruption in registration, identification at the polls, reporting of results, etc. We thankfully have an electoral system that is exceptionally honest and accurate overall -- at least a few notches above Afghanistan -- but surely it is not perfect. We hope that at least the defects are small enough and counterbalanced enough not to determine outcomes. But in a close result, without the Electoral College there would surely be litigation in 50 states, not one. This would be enormously costly, time-consuming and corrosive, and I worry a bit about the longterm effect in delegitimating the electoral process in the eyes of an already cynical electorate.
Responding to another of Michael's points, and raising the ghost of Bush v. Gore yet again, I don't see on what basis the Florida court would have "decided that Bush won," other than a fervent desire of a court majority to see that outcome. The most thorough and nonpartisan analysis of the undervotes that I saw concluded that Bush would have still prevailed, although he may have lost if there had been a broader statewide recount including all overvotes. At best we can only speculate on the result of the stopped recount. It is also therefore mistaken to state, as is common, that the US Supremes "decided" the election, or gave it to Bush. Therapeutic, perhaps, but misleading. The Court stopped the recount, forcing the election to be decided by the then-official tally that included the partial recounts, and stopping the efforts of the Florida court to find a more congenial outcome. At no point was there an official count that showed Gore ahead, so the Supremes decision did not change or determine the outcome. I'm sure you all agree ... :)
Catholic University of America
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu]On Behalf Of Michael Zimmer
Sent: Friday, October 15, 2004 10:42 AM
To: RJLipkin at aol.com
Cc: CONLAWPROF at lists.ucla.edu
Subject: Re: The End of the Electoral College?
Yes, the Electoral College system should be changed and the effort should not be partisan. We have moved toward broader democracy and it is long past time to give the American people the right to vote for President. We would be much further along on doing this if the Supreme Court had not cut off the way the Constitution envisioned the selection of the President to work. Assuming the Florida courts decided that Gore won, so Gore's electors were sent to Washington and assume that the Florida legislature had voted to sent Bush's electors, everyone would concretely have realized that we do not have the right to vote for the President, even though we do in all the states. I think the Electoral College system would not survive the dawning of that reality.
Michael J. Zimmer
Professor of Law
Seton Hall Law School
One Newark Center
Newark, NJ 07102
-----conlawprof-bounces at lists.ucla.edu wrote: -----
To: CONLAWPROF at lists.ucla.edu
From: RJLipkin at aol.com
Sent by: conlawprof-bounces at lists.ucla.edu
Date: 10/15/2004 09:00AM
Subject: The End of the Electoral College?
Would (should) there be a partisan attempt to eliminate the Electoral College were Senator Kerry to win the presidency, but lose the popular vote? Would it be successful?
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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