Walter Dellinger is a brilliant legal scholar, and he's always interesting. What's most interesting about his latest Slate piece, however, is the window it may give us into what Kerry partisans are thinking right now about the Electoral College.
Dellinger is frequently mentioned as a possible Supreme Court choice for President Kerry, and therefore he has no small stake in the outcome of this election. At the moment, Dellinger seems very concerned that the legitimacy of the next president not be challenged should he lose the popular vote and win in the Electoral College. "[A] president chosen by the present system," he writes, "has a fully legitimate claim to govern."
Well, duh. Nobody is suggesting the violent overthrow of the United States government should the people's collective will be rejected a second time. Rather, a growing number of people (including me) are saying that if the popular will is thwarted a second time, the long-overdue elimination of the Electoral College may finally occur through the lawful process of constitutional amendment. And that that's a very good thing.
In his Slate piece, Dellinger posits a scenario in which George W. Bush once again wins in the Electoral College but loses the popular vote. But Dellinger must know that the scenario more often bruited about (for example, here and here) is that Bush will lose in the Electoral College and win the popular vote. This is a scenario I'm actively rooting for, because
a) it will make John Kerry president;
b) it will create a bipartisan movement to eliminate the Electoral College;
and—I'm not too proud to admit it—
c) it will give Bush a taste of his own medicine from 2000.
But Dellinger—and maybe Kerry, too?—don't appear to relish such talk.
I can accept that Dellinger wants to take a principled stand for the constitutional legitimacy of the current system. It may be unnecessary, but it isn't wrong. Dellinger made similar comments supporting President Bush's claim to the presidency four years ago, even though he advised Al Gore during the Long Count. Under the current constitutional arrangement, Dellinger emphasized, the only thing that mattered was who won in the Electoral College. Very true.
What I can't understand is Dellinger's seeming urge to suppress any excited talk right now about the idiocy of the Electoral College. Dellinger makes a point of being exquisitely neutral on the question of whether a popular vote is preferable to the Electoral College as a method for choosing presidents. "There are very substantial arguments for such a revision," he writes, "and I may ultimately find them persuasive." But "[t]here are advantages to the electoral-vote system—particularly its tendency to produce a clear winner." The various disadvantages "should certainly give pause."
"Pause" is, I think, the most heartfelt word in Dellinger's essay, and I think it's a euphemism for "shut up." If Dellinger anticipates that he may ultimately be persuaded by the arguments for getting rid of the Electoral College, why should electoral reformers shut up? There's plenty of time to debate precisely how it should be done—for example, whether there should be a runoff for the top two vote-getters. (The Center for Voting and Democracy, a left-leaning nonprofit, makes an interesting case for "instant runoff voting," wherein voters rank candidates in order of preference.) I can't read Dellinger's mind, but I suspect what he's saying—but won't cop to—is a variation on St. Augustine's youthful plea, "Give me chastity and continency, only not yet."
I don't think this shushing strategy is a winner for Kerry or those who support his candidacy. Rather, if Kerry wins without the popular vote, he should take the position that he won under the system that's served this nation for two centuries, and that he will accept that as a mandate, but that the anomaly of two consecutive elections in which the popular vote did not align with the winner inclines him to think that a new, more democratic, system ought to replace the Electoral College. I think President Bush, too, should say those same words if re-elected, but that presupposes a largeness of spirit that Bush will never possess. We can still hope that a President Kerry might.