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Faithless Elector Watch: Gimme "Equal Protection"

Timothy Noah
Posted Wednesday, Dec. 13, 2000, at 7:27 PM ET

What though the field be lost?
All is not lost--the unconquerable will,
And study of revenge, immortal hate,
And courage never to submit or yield:
And what is else not to be overcome?
That glory shall never his wrath or might
Extort from me.

--John Milton, Paradise Lost, Book 1 (105-111)

We all feel that way sometimes, don't we? Chatterbox is in a similarly defiant mood about the U.S. Supreme Court's decision to throw the election to George W. Bush. Granted, "immortal hate" is a little over the top. It sounds more like Tom DeLay or Dick Armey than your normally good-natured, roll-with-the-punches Chatterbox. And the narrative context is somewhat unflattering. (Milton puts these words into the mouth of Satan, whom God has just "Hurled headlong flaming from th' ethereal sky/ With hideous ruin and combustion, down/ To bottomless perdition, there to dwell/ In adamantine chains and penal fire.") Al Gore would be wise not to quote this passage in his concession speech tonight.

Still, it peeves Chatterbox deeply to have to wonder whether the retirement plans of swing justice Sandra Day O'Connor--whose husband apparently blurted out a few weeks ago that she wants to go back to Arizona but also wants a Republican-affiliated justice to replace her--threw the election to George W. Bush. That certainly would explain why the Supreme Court, having stopped Florida's vote recount, is now asserting, with remarkably little embarrassment, that there's insufficient time to complete it. Time for Democrats to summon a little "unconquerable will" of their own? The faithless-elector option has never looked so beguiling.

Chatterbox has never denied that Gore's recount campaign was somewhat contentious, that its unregulated funding was worrisome, and that the field of dimple-ology was ripe for partisan manipulation. Throughout the controversy, he was never quite able to shake his habit, as a lifelong Democrat, of thinking no good ever came from scrutinizing electoral politics at the precinct level. (Above the precinct level, it tends to work pretty well but below that level ... it's Chinatown.) Still, the task was undertaken, it was going better than Chatterbox expected, and--bam!--the U.S. Supreme Court shut it down. Why? Because it violated the equal protection clause of the 14th Amendment. "When a court orders a statewide remedy," the majority opinion said, "there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied." By failing to take proper precautions, Florida's Supreme Court risked giving more weight to a voter in Miami-Dade than to a voter in Panama City.

Now, Chatterbox is no lawyer, and he certainly means no disrespect to the equal protection clause. But in fetishizing equal protection of the right to vote for president within the state of Florida--one man, one vote--the Supreme Court ignored the lack of equal voter protection from state to state. Which is a problem the Supreme Court can't, in fact, do anything about, because it's written into the Constitution as the Electoral College. (Well, the Senate, too, actually. But Chatterbox has discussed that elsewhere.) Which is why we should abolish the Electoral College. Which is why a raucous demonstration of its weaknesses, in the form of electors going faithless, might be a good idea even if it didn't put Al Gore into the White House.

How unequal is the right to vote for president from state to state? Lawrence D. Longley and Neal Peirce's Electoral College Primer 2000 (a Chatterbox Christmas pick!) contains some nifty data on this question. As Chatterbox has noted before, the distortions of the Electoral College aren't as simple as widely believed--that is, they don't just favor little states over big ones. Because of the winner-take-all feature, they actually favor big states more than they do little ones (it's the medium-sized states that tend to get screwed). Longley and Peirce have actually calculated the relative voting power in each of the 50 states. Montanans have the least relative voting power. Californians have the most. A Californian, in fact, enjoys two-and-a-half times the voting power of a Montanan and 72 percent more voting power than the average voter nationwide. After California, the states with the most Electoral College clout are: Texas, New York (they both have not-quite-twice as much clout as Montana), Florida, Pennsylvania, and Illinois (which has a little more than one-and-a-half times as much clout as Montana). Chatterbox has just named all the states where voters enjoy more-than-average clout in presidential elections. After Montana, the states that have the least voting power in the Electoral College are Kansas, West Virginia, Maine, Arkansas, Utah, and Nevada.

OK, now let's look at ethnic groups! In general, the Electoral College amplifies the votes of big-city interest groups, who tend to vote liberal: Hispanics (26 percent more clout than the average voter), the foreign-born (19 percent more), and Jews (13 percent more). Blacks, however, get left out of this bonanza, because too many of them still live in the south, which does poorly in the Electoral College. The typical black voter has almost 3 percent less voting power than the national average.

Chatterbox could go on, but he thinks he's made his point: Presidential voting rights are distributed very unevenly in the United States. A straight-up nationwide popular vote would make every voter's ballot count the same. So, Antonin Scalia. You're wrapped around the axle about equal protection of the right to vote for president? Then let's see you spearhead a national movement to ditch the Electoral College.

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Timothy Noah is a senior writer at Slate.
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