SPEAKOUT: An election disaster in waiting

By Larry J. Sabato

Saturday, July 5, 2008

Want to fix an election? No, I'm not proposing any Election Day shenanigans, but rather some preventive maintenance for a very old machine.

Our system of electing a president can be confusing even to the most seasoned political observer. Goodness knows, it could be done better, from shortening the election season to better organizing the nominating calendar to reshaping the Electoral College. All these aspects of the election process are being widely discussed, and maybe before too long, we'll act on some proposed changes.

But there is one concealed time bomb buried in the Constitution that is receiving no attention at all. This is no minor hitch. In fact, it's a disaster awaiting us, if not this November then almost certainly in some future November.

And it could even happen this fall. It's early, but right now John McCain is doing well in New Hampshire (four electoral votes), which President Bush lost in 2004. Barack Obama is doing well in Colorado (nine), Iowa (five) and New Mexico (five), all of which John Kerry lost in 2004. If those four states switch sides, with the other states remaining where they were on election night four years ago, then the Electoral College is tied: 269 to 269. It's easy to imagine that this scenario could occur. What is unimaginable is what happens afterward.

Adopted in 1789, before the establishment of political parties and before most citizens had the right to vote, the Electoral College was created for a variety of reasons - some purely political, others based upon the mix of reasonable compromise and firm principle.

Once instituted, it did not take long to stir controversy. In 1796 John Adams defeated Thomas Jefferson for the presidency by just three electoral votes, with Jefferson becoming vice president due to his second-place finish. Four years later, Jefferson ran again, against incumbent President Adams. This time around, Jefferson and his ticket-mate, Aaron Burr, came out on top in the Electoral College. At that time, each elector voted for two men, and the top two vote-getters were supposed to serve as president and vice president. But the Jefferson electors had voted for both men, so Jefferson and Burr each had 73 electoral votes.

While Burr had been the choice for vice president and not president, his political ambition kept him from stepping aside. It took 36 ballots in the U.S. House of Representatives to select Thomas Jefferson as our third president.

This fiasco prompted the 12th Amendment to the Constitution, which, among other provisions, requires electors to vote for presidential and vice presidential candidates separately.

If no one has received a majority for president and/or for vice president - the 12th Amendment requires the separate counting of ballots for each office - then the House of Representatives gathers to elect a president and the Senate to elect a vice president. The House votes by state, with each delegation - regardless of size - having a single vote. This is the critical, so-called unit rule.

Under the unit rule, a simple majority of the states is required to elect a president in the House. Originally, this meant that seven of the 13 states could pick a president in case of deadlock; in 2008, 26 of the 50 states would be required.

Think about what House selection of a president would mean today. The votes of mega-states could be canceled out by far less populous ones.

Furthermore, large state delegations could internally deadlock via tie votes, and parliamentary maneuvers when the big-state delegations are polled could confuse matters further. Some large states might be deprived even of their single vote for the presidency. Tens of millions of people could be disfranchised in this fashion.

Meanwhile, all the small states with single House members will certainly be counted. The smaller the House delegation, the more likely the state's House members will be able to reach agreement or at least finish their tally.

How could a president elected in this fashion govern effectively? If you thought the public reaction to the Supreme Court's Bush v. Gore decision in 2000 was bitter, just wait until the unintended consequences of the unit rule provision of the Constitution come into play.

The pre-emptive answer is as obvious as it is simple. Abolish the unit rule, and let every U.S. representative cast a ballot as he or she sees fit - a ballot for which each House member will be held accountable by constituents in the next election. This is far closer to the ideals of popular democracy than the distortion of democracy called the unit rule.

This is a nonpartisan and uncontroversial housekeeping reform. Congress should be able to pass it quickly and submit it to the state legislatures for swift ratification.

For once, let's identify a serious structural deficiency and correct it before we're forced to pay a large, painful price. Wouldn't that be a welcome change?

Larry J. Sabato is the author of A More Perfect Constitution, and director of the University of Virginia's Center for Politics.

• July 5, 2008

  10:34 a.m.

  Suggest removal

  BJG writes:

  That is why we should rid ourselves of the electoral college model and use the majority rule. This is not the 1700's we have the capacity to count every vote cast. The Congress and Supreme Court needs to stay out elections. The election for President is the peoples choice not superdelegates, Congress, or the electoral college count. Power to the People!!!!

• July 5, 2008

  11:19 a.m.

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  Oh_Wise_One writes:

  Would a, could a, should a... A scenario for a tie 269-269 so the chicken little wants to change our constitution just because why? So there's a tie, let it happen and then let the process work.
  The thought of the Dems losing again is driving them nuts.

• July 5, 2008

  1:14 p.m.

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  jbowen43 writes:

  In any scenario where McCain wins the results would be disastrous.

• July 5, 2008

  1:56 p.m.

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  BKindel writes:

  I would agree that the Unit Rule is a "bug" in the Constitution that should be eliminated, but I would also assert that the Electoral College itself is anachronistic and should be replaced by direct popular election of the President and Vice President (as a ticket).

  Elimination of either the Unit Rule or the Electoral College would require amendment of the Constitution. Even "housekeeping" amendments are intentionally very hard to make, so I'm not holding my breath.

  What CAN happen in the near term would be for States to amend how they select their Electors. The "winner take all" scheme in use in the vast majority of states is problematic; to my mind, Maine and Nebraska have a better idea. That is, the Elector corresponding to each Congressional district would be selected according to the majority vote within the district, while the two Electors that correspond to the Senators would be selected according to the state's majority. The result is that recounts in a handful of congressional districts would be FAR less likely to impact the outcome of the election.

  The good news here is that 48 states could (given the will to do so) make that change in time for the 2008 election. They won't, though -- our political parties are fully committed to concentrating their campaign dollars where they can influence the most electoral votes rather than having to worry about the states where they already have sizable leads.

• July 5, 2008

  3:32 p.m.

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  MrPeabody writes:

  I agree that the unit rule is a problem. However, most of the "let's change the rules" and get rid of the electoral college nonsense and shenanigans comes from the left. That party is so mad at not being able to win the white house with regularity that they will stop at nothing to get it. They even had democrat proposals here in Colorado being pushed by Californians to "apportion" our electoral votes - something they wouldn't push in their own state, which regularly and reliably votes democrat. Shameless but predictable.

  As for the idea of a popular vote for president - bad idea. Power then goes to the most populated states, i.e. NY, CA, TX, FL, MI, IL, OH, PA and those rural Americans have much less of a voice if 51% of the country's folks want a certain candidate. We all know that in most big cities in this country, one party has held the mayorships for as long as I can remember.

  I don't see the need for immediate action on the unit rule but agree with the letter writer in that giving each house member a vote would make them accountable with their local electorate. I'd be very surprised if the electoral vote came out tied this year.

• July 5, 2008

  4:56 p.m.

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  Andy writes:

  So, BJG, you're tired of presidential candidates bothering to even consider the issues in low population states like Colorado?

• July 5, 2008

  11:16 p.m.

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  clyde writes:

  Democrats will do anything to steal even one vote.

• July 6, 2008

  3:14 a.m.

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  clyde writes:

  The beauty of the Electoral Collge is that it makes the politicians take notice of the rural areas, which traditionally are the ones that produce and supply America with the necessities of life. The less populated areas produce, while the urban leeches consume. If we followed the dictates of mob rule, slavery would still exist. Abolition was a very unpopular idea back in the 1850's. Perhaps we could weigh each vote with regards to whether an area was a net consumer or a net producer. To get more radical, maybe only the producers should have any right to vote at all. Consumers and leeches are just parasites that really shouldn't have any say in the market anyway.

• July 18, 2008

  7:44 p.m.

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  johnrpack writes:

  The current system makes perfect sense when one realizes that the "United States of America" was intended to be a "United Nations of America." It's only now that we treat States like provinces that we forget this was intended to be a union of sovereign States -- not just a big democracy. The real problem with our current system is not the electoral college, but that state governments no longer have representation in the federal government.