In defense of the Electoral College.
Once again, the candidate "chosen by the people of the United States" on Election Day may not become president. As in 2000, the election now appears to be so close that either candidate could lose the national popular vote and yet be sworn in as president by virtue of claiming more electoral votes than his opponent. If that happens, it will once again be important for the "popular-vote winner" and his followers to recognize that the electoral-vote winner sworn in on January 20, 2005, is indeed the fully legitimate president.
Al Gore won the national popular vote in 2000 by more than half a million votes over George Bush, who nonetheless became president by winning the electoral vote 271 to 266. Because the riveting dispute over Florida's electoral votes drew all the post-election attention, the undisputed fact that Al Gore had defeated George Bush in the national popular vote did not itself produce a major outcry. But if this happens again—and especially if President Bush is returned for four more years after being rejected yet again by a national majority of voters—the Electoral College systemwill be widely denounced as a nutty anachronism, and there will be widespread demands for a constitutional amendment to replace the electoral vote with popular election
There are very substantial arguments for such a revision, and I might ultimately find them persuasive. The important point for the present moment, however, is that a president chosen by the present system has a fully legitimate claim to govern.
First and foremost, he will have been chosen by the constitutional rules currently in place. This alone is a source of legitimacy. Moreover, we simply do not and cannot know who would have won a national popular-vote contest had one been held. In such a case, both candidates would have run fundamentally different campaigns, emphasizing different issues and appearing frequently in states like California, New York, and Texas. Who can know how people in those states would have responded had they been as informed by exposure to the candidates and their ads as citizens in Wisconsin and Ohio? One cannot persuasively impeach the electoral vote with a national popular-vote number that was wholly irrelevant to the campaign that was actually run. The hypothetical question of who would have won a national popular-vote contest if one had been held is thus completely unanswerable. (One note: It seems odd to hear commentators from England, Canada, or other parliamentary countries criticize the electoral-vote system when, in their own countries, it sometimes happens that one party receives more total votes nationally for its parliamentary candidates, yet the other party with fewer total votes elects more members and thus chooses the nation's prime minister.)
The other basis for questioning the outcome of an electoral-vote contest is to argue that the candidate taking office was chosen by an archaic and wholly irrational system. Even if the electoral systemshould be replaced with a national popular-vote election, however, the electoral-vote system is by no means so irrational that a president should be embarrassed at being chosen by this process.
The Electoral College systemworks today essentially as the Framers of the Constitution intended. It is a myth that the Framers designed an "electoral college" with the idea that an elite set of men would gather to choose the person they thought should be president. Quite the contrary—the electoral systemwas advanced by at least some delegates who in theory favored direct election of the president. Upon seeing the plan, James Wilson of Pennsylvania, a tireless advocate for direct popular election, proclaimed that it was what he had hoped to see—election of the president "either immediately or mediately" by the people themselves. The ConstitutionalConvention came within a single vote of requiring every state to select electors by popular election, opting instead to let each state legislature choose the method of selecting electors. It would not have surprised many delegates, however, that by 1828 every state but one had the people choosing electors who were generally pledged to cast their votes for a particular candidate. (There is thus no warrant in the original understanding for any elector to exercise independent judgment by voting for his or her preferred candidate instead of the candidate actually chosen by the voters of the elector's state. Such a faithless act would be a blight on representative government.)
There are advantages to the electoral-vote system—particularly its tendency to produce a clear winner. And amending the Constitution to alter it would present a series of difficult questions: Will we give great leverage to third party candidates by requiring the winner to have a majority? Will we have a runoff, which might lead to depressed turnout for the second vote? Will we create a National Election Agency to run the vote and or leave it with the 51 governments who now run it? If those states report raw votes, will they somehow artificially increase the number of voters in the state or pad the totals—a temptation now avoided by having a set number of electoral votes for each state? These are not insurmountable objections to constitutional change, but they should certainly give pause.
The greatest disadvantage of the present system, of course, is the possibility that the candidate who receives the most votes from the people nationally may not necessarily take office. That is precisely what happened in 2000, and I do not underestimate the great power of that point. But there may well be some offsetting value in the fact that the president is not installed by popular majorities. At the time of Iran-Contra, Oliver North suggested that the president could legitimately defy the law because he alone was elected by all the people. That of course is wrong, and not just technically so. A presidential candidate who stands for something in his campaign and wins with a substantial majority of votes from the American people does, of course, gain a mandate. But the Electoral College systemitself should remind every president that although he is chosen by a process that involves significant popular input, his selection is not by virtue of a plebiscite that makes him, like a Juan Peron, the embodiment of the People Themselves. On the contrary, like the prime minister in a parliamentary system, he is (merely) a constitutional officer chosen by a complex system that makes him, like all of us, subordinate to the law.
The constitutional system for choosing our president is not perfect, and perhaps we ought to change it. But it is not crazy, either, and the candidate who emerges with the most electoral votes has a fully legitimate claim to the office for the next four years.
Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.