Six months ago, before the 2000 election, most Americans had just barely heard of the Electoral College. Those who knew anything at all about it knew that it was a vestigial organ, a harmless anachronism right up there with saying “Oyez” at the opening of a court session. It was, the more sophisticated of us believed, the way the popular vote gets translated into the official tally.
Some really sophisticated students of history knew that, on at least two prior occasions, the Electoral College vote had failed to reflect the popular vote, and had in fact elected a president who had the smaller share of the popular vote. But that could never happen now, we told ourselves. Last time it did happen was in 1876. And somehow or other, they worked that one out.
Because most Americans use the word “history” to mean “gone and forgotten,” we mostly didn’t know just how they worked it out. The Hayes-Tilden Compromise, a mere footnote in most widely-read books about U.S. history, involved a commission which worked out the Electoral College stalemate by giving the presidency to the Republican who had received fewer votes, in exchange for giving the white Southern Democratic politicians a free hand to scrap Reconstruction and impose Jim Crow legislation. Almost everything the Civil War had been fought for, everything the Civil Rights movement would have to fight for again a century later, was lost in the Hayes-Tilden Compromise. Quite aside from the fact that more than half the American voters had voted against the official winner. Some footnote.
Somehow, between our ignorance of summer 2000 and Election Day, many of us realized that, this year, it was really possible that the winner of the popular vote might not win the Electoral College vote. And somewhere in the weeks after Election Day, we all found ourselves accepting, without much objection, the fact that the candidate who had, obviously, won the popular vote, in fact probably would and ultimately did lose the Electoral College vote. By that time, the specifics of how he lost the Electoral College vote were so outrageous that the revisitation of Hayes-Tilden seemed trivial by comparison. At least that was legal.
Well, let’s look at the Electoral College more carefully. Under the Constitution, every state, regardless of its population, gets two senators and at least one congressional representative. This gives the smaller states disproportionate weight in the Senate. And, since each state’s share of votes in the Electoral College equals the number of its total Congressional delegation (senators + representatives), smaller states get disproportionate representation in the presidential election too. The vote of an individual citizen of Rhode Island counts far more than the vote of an individual New Yorker.
But it gets worse. Because all but three states have adopted the “winner take all” rule (this is not in the Constitution; the states that have it have it by state statute) a state with ten Electoral College delegates, whose voters went for Candidate A by a mere 51%, will cast the same number of Electoral College votes for that candidate as a state the same size, in which 99% of the vote went for that candidate. So the votes of 48% of the voters in the second state do not count at all. (This reality gave rise, in the 2000 election, to the practice of “trading votes.” A voter in a state in which the vote was expected to be close, who strongly support third-party candidate Nader but was unwilling to risk a Bush victory, would contact a voter of similar sympathies in a state expected to vote overwhelmingly for Bush [or Gore.] The latter would then cast his vote for Nader. The idea was that this might improve Nader’s chances of getting his 5% and qualifying for federal matching funds in 2004, without jeopardizing Gore’s chances in the tight races.)
Then, on top of these generalized, nationwide problems, we have a more-or-less random and heretofore not-very-significant level of electoral mismanagement, vote count error, voter error, and voting machine malfunction, that happens in every election. Experts now tell us it runs well into the 6 figures nationwide, but that up to now we haven’t paid much attention to it because the margin of victory in previous elections within living memory has always been large enough not to be affected by it, and because we have generally assumed that such errors were no more likely to happen to voters for one candidate than to voters for any other, so that, statistically, they would cancel each other out. But in fact, recent events suggest strongly that electoral error of all kinds is more likely to happen in poor neighborhoods than elsewhere, because public expenditures on electoral machinery and staff, like public expenditures on just about everything else, vary directly with the income level of the people who live in the area in question. To the extent that lower-income voters are more likely to vote for one party than for the other, the impact of electoral error will not be random. And this year, of course, the margin of victory was well within the statistical margin of error.
On top of all this, there is a whole other set of electoral problems we had been aware of–mostly having to do with the low level of voting and registration among lower-income, non-white, and poorly-educated citizens. This included people who were unable to get time off from work to vote on a weekday, people who couldn’t find their polling place, people with disabilities who couldn’t get into the polling place, and people who simply didn’t understand the political process. Ironically, the 2000 election overcame some of these problems, and got a lot of people out to vote who had never done it before, but under circumstances in which their votes either counted less or were not counted at all.
And, finally, there is the localized election fraud factor–votes being deliberately discouraged or manipulated or disappeared by over-zealous or corrupt officials, presumably acting independently and without the knowledge of their candidates. This problem arises from the fact that, in most localities, elections are managed by elected officials, political appointees, or partisan volunteers–people who cannot possibly be relied on to be impartial. While we are well aware of the potential for fraud and intimidation in the Third World countries to whose elections we send observers, it seems not to have occurred to us that our own election judges and boards of election commissioners are no less partisan than those in South Africa or Haiti. While it was a little nervy of Cuba’s Castro and Russia’s Putin to offer to send observers to the Florida recount, we probably could have benefited from some kind of impartial outside oversight of the process.
On the other hand, the things that bothered the American public most–the length of time elapsed between Election Day and the declaration of The Winner, and the involvement of lawyers and courts–bothered me not at all, and should not have bothered a properly educated citizenry. The people who complained, “When are we going to have a president?” had apparently never been taught, or at any rate never learned, that (a) we had a president through January 20, 2001–the man we elected in 1996, and (b) under the Twelfth Amendment of the Constitution, we would have an identifiable, active, plenipotentiary president even it the crisis stretched on into March (which, under that same Amendment, it conceivably could have.) And the people who proclaimed with Dick Cheney, “The rule of law must prevail. The lawyers should go home,” apparently have the same notion of the “rule of law” as the old Soviet Union–a rule of the executive unhampered by courts or lawyers. We Americans have allowed ourselves to be embarrassed in the international forum by our readiness to resort to litigation to resolve disputes. The countries that find this bizarre are either authoritarian regimes in which no one would dream of challenging the powerful, or well-regulated social democracies in which many disputes are pre-empted by thorough governmental regulation. I would prefer the latter arrangement, but not having chosen either of those alternatives should not embarrass us. Litigation is better than violence or intimidation or outright submission, and no worse than democratic governmental regulation.