About this time every four years, someone publishes an article calling
for the abolition of the Electoral College. Abolishing the Electoral
College would have disastrous consequences, both anticipated and unanticipated.
The proponents of abolishing it simply have not thought the matter
The Electoral College Promotes More Honest Elections
American presidential elections are fairly honest. There is some cheating
in the big cities of swing states, but massive fraud on a nationwide
basis has been avoided. The reason for this is that there is no motive
for anyone to cheat who already knows he has carried the state. The
majority of states have a dominant party that always carries the
state when it wins and sometimes carries it when it loses. It adds
nothing to a party’s chances of winning the presidency to enhance
a big majority in its strong states by cheating; indeed, it runs
the risk of being counterproductive if caught.
If, on the other hand, we elected our presidents by popular vote,
every county courthouse machine in rural America would have a motive
to increase its vote for its candidate by fraud. This would take place
in thousands of counties across the country and be harder to prevent
than fraud in a few cities.
The Electoral College Provides Greater Certainty in Close Elections
Close elections are often decided in one state: Illinois in 1960, California
in 1968, and Florida in 2000, for example. Close elections are not
close in very many states. That is why we accept the election night
results of the states with large majorities for one candidate, without
sending a team of lawyers to challenge the recount.
If we elected out presidents by popular vote, in a close election
like the one in 2000, every vote in the country that could be found
or disallowed would be important. Instead of having multiple recounts
in Florida in an attempt to find more votes for Gore, both candidates
would be conducting litigation and constant recounting in every county
in the country.
The Electoral College Has Provided a Mechanism for Change
The three great Constitutional expansions of the electorate have been
voting rights for blacks, women, and 18-year-olds. Each of these
was an experiment in a minority of states before it became a Constitutional
amendment. Such experiments would not have been possible with a uniform
national electorate. We could not have a state give the vote to anyone
who would not have it in another state and still have a fair national
At the end of the Civil War, blacks had equal voting rights with
whites in one state and limited voting rights in a few other Northern
states. Generally, however, the people of the North were opposed to
allowing blacks to vote. The Fourteenth Amendment
had a provision reducing the representation of states that denied the
vote to blacks; the provision was drafted by people who did not expect
blacks to be given the vote everywhere. The 10 Southern states under military government, however,
were required to allow black voting under a more radical Congress elected
in 1866. Voting by blacks remained unpopular, both in the North and
the South, and the adoption of the Fifteenth Amendment giving the vote
to blacks nationwide was controversial.
It is quite possible that if there had been a national centralized
standard for the franchise as contemplated by the opponents of the
electoral college, blacks would not have been given the vote during
Reconstruction and the North would have been content to reduce Southern
Congressional representation under the formula in the Fourteenth Amendment.
It is also possible that if this happened, blacks would not have won
the vote until the civil rights movement of the Twentieth Century.
Long before women received the Constitutional right to vote, a number
of Western states gave them the vote. The representatives elected by
these women were a powerful force in extending the vote nationwide.
Long before 18 year olds got the right to vote in every state, they
had it in Georgia. Georgia’s voting teenagers never even made
demands for such moderate and reasonable goals as a relaxation of the
drinking age, much less the irresponsible demands of the fictitious
teenage voters in the movie Wild in the Streets released about three
years before the right of this group to vote was added to the Constitution.
The example of Georgia doubtlessly helped the expansion of the right.
Popular Election of the President Would Require Greater Centralization
In order to have a national popular election of the President, we would
need a national election law. Such an election could not be fair
if a person could lose the right to vote in one state for stealing
$10,000 while in another state the amount would be $20,000. It would
not be fair if such a criminal lost the vote for eight years in one
state, but only seven in another state. It could even be argued that
it would not be fair to have volunteer election inspectors in one
state and paid ones in another, or four per polling place in one
state and two in another. Certainly it would not be fair to have
easy-to-operate voting machines in one state and more challenging
ones in another state. The federal government would probably have
to replace every voting machine in the country.
The federal government would have to adopt a complete election law
from scratch and hire hundreds of thousands of poll workers, tasks
at which the federal government has no experience. This would further
unbalance power between the states and the federal government. The
traditional role of local police in some states’ election processes
would have to be replaced as well.
Power would be concentrated in one federal bureaucracy that might
well figure out ways to rig elections.
The Electoral College Works
It is easier to campaign in densely populated states. On the other
hand, the Electoral College gives a very small bonus to the voters
in small states. This balance of interests has worked well. We should
The Confederate Lawyer column is copyright © 2008
by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com.
All rights reserved.
Charles G. Mills is the Judge Advocate or general counsel for the
New York State American Legion. He has forty years of experience in
many trial and appellate courts and has published several articles
about the law.
See his biographical sketch and additional columns here.
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