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The Confederate Lawyer
January 15, 2009

Save the Electoral College
by Charles G. Mills

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 through.

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 popular vote.

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 preserve it.

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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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