Dworkin, continued.
Electors are no longer
expected to exercise their own judgment: it is candidates, not electors, whose
names are on the ballot and it would be a scandal if the electors chose someone
other than the candidate to whom most of them were pledged. A partisan
majority in a state legislature still has the constitutional power, under Article II, to
cancel presidential elections in its state and choose the state's electors by
themselves. But if any legislature tried to exercise that power its action would
undoubtedly provoke a constitutional amendment ending that power.
We have been lucky not to have been seriously damaged by the Electoral
College system long before this election made its anachronism intolerable. It is
dangerous to retain a constitutional structure when its principled base has been so
thoroughly repudiated, because the structure then becomes a legal loose cannon.
It generates pointless complexities and obstacles, and it is vulnerable to partisan
manipulation and bizarre interpretation that cannot be checked by appealing to
the structure's purpose, since it now has none. The legal battles in Florida and in
the Supreme Court were dominated by a series of deadlines—the Court elected
Bush by insisting on the importance of December 12—that are significant only
because the eighteenth-century arrangement decreed a stately series of
certifications, meetings, and pronouncements that are now only charades. The
Republican strategy in Florida of delaying recounts through any means possible,
including not only legal challenges but noisy demonstrations outside counting
rooms, was made possible only by those pointless deadlines. It makes no sense
to demand that a breathtakingly close election be finally decided by any magic
date in December in order that a new president be chosen by January 20.
The original decision to leave the manner of presidential elections to state
legislatures corrupts elections in a different way. The one-person-one-vote
principle would suggest, as I said, that we elect presidents through uniform voting
methods, with at least roughly equal accuracy, supervised by a national election
commission under
principles established by Congress. The eighteenth-century compromise
guarantees, to the contrary, that different methods of recording votes, which
vary dramatically in their accuracy, will be used not only in different states but in
different counties within states. It also guarantees that inevitable uncertainties
and ambiguities in election law will have to be faced anew in each close election,
because even if Florida's law is clarified now, the next set of contests will arise
in an entirely different state with an entirely different structure of law and
ambiguity.
The present system means, moreover, that politics will play an inevitably ugly
role in close elections. It is surely unacceptable that the Florida state legislature,
dominated by Republicans, should have the power themselves to elect a set of
electors pledged to the Republican candidate whenever they deem this to be
necessary because the result of the election is uncertain. Many of the most
consequential decisions in Florida were made by political officials whose future
might depend either on who won the presidential election or on whether
powerful Florida politicians, including Bush's brother, who is Florida's governor,
would approve what they had done. Katherine Harris, the Florida secretary of
state whose several erroneous rulings contributed enormously to the delays that
prevented a fair recount, had been co-chairman of Bush's campaign in Florida,
and The New York Times reported that the Democratic mayor of Miami had
been subject to a great deal of local pressure just before the Miami-Dade
canvassing board reversed itself and decided to halt manual recounts.7 It would
be a mistake to assume wrongdoing or improper motives in any such case, but it
would certainly be better to vest critical decisions in nonpartisan federal election
officials who would be much less likely to attract suspicion.
We now have the best chance ever to junk the anachronistic and dangerous
eighteenth-century system. The public should demand that Congress begin a
process of constitutional amendment that would eliminate that system, root and
branch, and substitute for it the direct election of the president and
vice-president by a plurality of the national popular vote. The amendment should
direct Congress to establish uniform election procedures and machinery across
the nation and that body might then design and finance voting computers with
screens that clearly display a voter's tentative choices and ask the voter to
confirm his votes before they are recorded.8 (It might be possible to allow
people with computers, including absentees, to vote through them at home,
although special digital identification and security precautions would have to be
developed, and care taken to avoid unfairness to voters with no access to a
computer.)
Congress should further require that voting booths be open for the same
twenty-four-hour period across the different time zones of the country, so that
voting stops simultaneously everywhere, and the television networks do not
report results in one time zone while voting continues in another; and it should
establish a national elections commission with general supervisory power over
national elections. Challenges and disputes would no doubt still arise, but these
could be adjudicated by officials of such an agency, who would be appointed to
provide nonpartisanship, subject to review by federal judges with life tenure,
rather than by state political officials and elected state judges.
The nation would benefit in other ways from the change. It does not matter,
under the Electoral College system, who won the national popular vote, but that
fact is nevertheless widely reported and widely thought significant; a president
who has won in the Electoral College but lost the popular vote, even by a
relatively slim
7 See Don van Natta
Jr. and Dexter Filkins,
"Contesting the Vote:
Miami-Dade County,"
The New York Times,
December 1, 2000.
(back)
8 Advanced electronic
voting devices might,
of course,
malfunction, though it
seems unlikely that
they would be subject
to as many of the
failings that have now
been documented in
machines and ballots
now used, and
software could be
designed to detect
malfunction
immediately.
margin, is thought by many people to be less legitimate for that reason. Making
the popular vote decisive would end the possibility of such a situation. Would we
lose anything by the shift? It is said to be a benefit of the Electoral College system
that it forces candidates to campaign across the nation rather than only in a few
highly populated regions with huge media markets and the largest number of
potential votes. But in fact the system does not produce genuinely national
campaigns. Candidates wholly ignore states that they are very likely either to win
or to lose—few presidential campaign ads appeared in the New York media
market in this election, for example—and devote most of their time and money to
those relatively few states in which the race appears to be close. If the national
popular vote were decisive, they would not campaign just in the major population
centers—there are too many votes elsewhere—but wherever they thought they
could persuade a substantial number of as yet undecided voters.
It has also been said that the Electoral College is necessary to protect regional
interest groups that are powerful within certain states, and so important to those
states' electoral votes, but not large nationally. But interest groups are now much
more dispersed across the nation than they once were: many states that were
formerly dominated by agricultural interests, for example, now have a more
mixed economy, and farmers might be better protected by voting rules that made
their absolute number important even if they were geographically dispersed.
It might appear that the Electoral College system reduces the number of
post-election challenges and contests in close presidential races because
candidates have no incentive, under that system, to seek to correct mistakes in a
state that the other candidate won so heavily that he would take its electoral
votes anyway. Under a popular vote system, however, a candidate who lost the
popular vote by a very small margin might canvas the entire country looking for a
series of challenges that could yield only a few votes in each case, but might
change the overall result collectively.
But there is no reason to think, in advance, that a change from the Electoral
College to a popular vote standard would produce more post-election challenges
or contests. If a national election is close, then the election in states whose
electoral votes are crucial is also likely to be close, and many fewer vote changes
are needed to make a difference in the state than in the nation. Gore needed only
to add a few hundred votes in Florida through challenges, but, even in this
exceptionally close popular vote contest, Bush would have had to add more than
300,000 votes to his total to win, and there is no indication of irregularities
elsewhere in the nation that affected, even cumulatively, that many votes.
The moment seems propitious, as I have said, for pressing for a constitutional
amendment: politicians in either party would have great difficulty claiming that the
system we have has worked well, or supplying any principled rationale for it. But
we must recognize that it is extremely difficult, and normally takes many years, to
amend the Constitution. Short of a new constitutional convention, an amendment
requires a two-thirds vote of both houses of Congress, and then approval by the
legislatures of three quarters of the states, and the pressure for an amendment
may weaken before that long process has been completed. In any case, no
amendment can succeed without the consent of many of the smaller states whose
citizens benefit unfairly, in the ways I have described, from the Electoral College
system that the amendment would end.
It is therefore important to consider how much of the gain that an amendment
would bring could be achieved at once without one, or while one is pending. One
gain I described—a twenty-four-hour election day ending simultaneously across
the country—could be adopted by Congress now, because the Constitution
assigns it authority to fix the time of presidential elections. More could be achieved
through a Model Uniform Election Code which Congress might endorse and
propose to the states, agreeing to finance elections for national office, including
providing accurate electronic voting machinery, for those states that adopted that
code. The model code would no doubt be adopted in somewhat different form in
different states, but Congress could identify core provisions that guaranteed
uniform voting machinery and mechanisms of challenge and review, for instance,
that could not be changed without forfeiting the benefits Congress offered. There
could be no objection under Article II to a state legislature adopting the model
code; a legislature would of course be free to repeal the code later, but it would
presumably face great political pressure not to do so.
These are extraordinary measures, and many people will be understandably timid
about altering a constitutional structure that has been, as a whole, dramatically
successful. But the Constitution's original design for elections, rooted in an elitism
which is no longer tolerable, has proved its most unsuccessful feature. We have
had to amend it before—in 1913, when the power to choose senators was taken
away from the state legislatures that originally had that power, and given to the
people—in order to keep faith with our most basic constitutional conviction, which
is that the Constitution creates and protects genuine democracy. We have now
witnessed new and frightening challenges to that assumption, culminating in a
deeply regrettable Supreme Court decision, and we must again change the
Constitution in order to sustain our deep respect for it and for the institutions that
guard it.
—December 14, 2000
nybooks.com
(Dworkin is a leading constitutional scholar, a professor of law at NYU and University College, London.) |
