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I Don't Really Want to Think about the Electoral College Right Now, But ...
By Gail Heriot

You may have noticed that I haven't been blogging lately. Too much work is the reason. And today is really no different; I have quite a few deadlines staring me in the face. But somehow I have been unable to focus on them. Instead, I've been running to my computer every fifteen minutes or so to check Real Clear Politics.

Up until a few hours ago, the poll averages were suggesting that the outcome would be a split verdict, just like in 2000 but in reverse. Bush would win the popular vote, but Gore ... uh ... I mean Kerry would take the electoral vote and hence the White House. And, of course, it very well might still happen. Although some of the more recent polls are more favorable to Bush in states like Ohio and Wisconsin, it's obvious that this race is going to be tight. I am particularly concerned about Wisconsin going to Kerry, since it allows Election Day registration. In part as a result of the Electoral College system, the incentive to commit voter fraud may be irresistible or at least not be resisted. (As an aside, I'm sure it's true that voter fraud is committed by both Democrats and Republicans, but it is most likely to occur in neighborhoods where the residents are poor and undereducated and those neighborhoods tend to be Democratic. And if this is the first time this has been brought to your attention, you need to get out more.)

If the electoral vote does split, I hope it will make conservatives re-think their recent fondness for the Electoral College. I blogged about this issue several times last month, but I can't link to the items from my home computer, because I'm working with a browser from the 5th century that cannot deal effectively with the Blogger software. Let me summarize: Shortly after the 2000 election, conservative talking heads started taking it upon themselves to argue the virtues of the Electoral College. They evidently thought some defense had to be mounted or else Bush would seem illegitimate. Maybe they were right about the need to make the case. But it seemed a shame to me. Bush was legitimately elected not because the Electoral College is the best method for selecting the President, but because it is the method specified in the Constitution and the method under which the campaign was actually conducted. And whether the Electoral College is the best method or not, it is certainly a legitimate method.

Some of the arguments for Electoral College are perfectly sensible but hardly convincing by themselves. For example, it is probably a virtue of the Electoral College that it tends to magnify a strong popular showing for the winning candidate into an electoral landslide. Mandates like that help make strong leadership possible and on the whole I think that's a good thing.

The argument that one hears over and over again, however, is that the Electoral College forces candidates to pay attention to small states, which they otherwise would ignore. This is false. The real effect of the Electoral College is to focus candidate attention not on small states, but on battleground states, no matter what their size. Bush and Kerry haven't given their attention to voters in Idaho, Vermont and Utah or to voters in New York, Texas and Calfornia. Those electoral votes are already spoken for. It's Florida, Ohio, New Hampshire and Pennsylvania that get their nearly undivided attention.

That isn't necessarily bad in itself. In the age of television, who cares if Bush and Kerry appear in each state? But in practice it has been a serious problem. It isn't just campaign visits that states are competing for, but the promise of pork. Battleground states get a lot of it. Pennsylvania got its completely indefensible steel tariffs. (The Election gods have a sense of humor, since despite this cheap trick, Bush is behind in Pennsylvania.) Florida's elderly voters were no doubt meant to be impressed with the Medicare expansion. Who knows what promises Kerry has made to state leaders in these states. By its nature, the Electoral College generates a carnival of special interest deals.

But I need to think about this admittedly complex issue later, not today. And if the split vote occurs, I will have that opportunity. Dean Rodriguez has given his okay for a Journal of Contemporary Legal Issues symposium on the Electoral College. It will be my consolation prize in case of a Bush loss. No, I don't expect anything will come of it in the real world even if every academic who considers the issue ends of agreeing that change is warranted. Constitutional amendments must be approved by three quarters of the states, and states like Florida, Ohio, Pennsylvania, Minnesota, Wisconsin, New Mexico, New Hampshire, Iowa, New Hampshire, Oregon, Missouri, Nevada, and West Virginia are unlikely to give up their gravy train voluntarily. But you never know.
posted by Gail at 10/30/2004 09:40:00 PM