Rethinking the Status Quo

Some are lawyers who fight with legal briefs. Others might be community activists, relying on civil disobedience instead. You could pass one of them on the street today and not realize it.

When you voted Nov. 7, it was for any one of them, an elector in the Electoral College - not Republican George W. Bush or Democrat Al Gore.

And they are the people who will meet Dec. 18 and elect the next president.

But some constitutional experts are saying the unique nature of the 2000 election might lead to changes in the Electoral College.

For more than a century now, the candidate who has won the popular vote also has captured the Electoral College, making the group little more than a formality on the way to the Oval Office.

But this election might end that streak.

Gore, who is winning the popular vote by 260,000 votes, is poised to lose Florida - and the election - to Bush, who is currently leading by fewer than 1,000 votes in that state.

A Florida victory would give Bush 271 electoral votes to Gore's 267. A candidate needs 270 votes to win.

But Bush's lead in the Florida popular vote could increase, shrink or transform into a Gore victory, depending on the outcome of a U.S. Supreme Court hearing and several other cases pending in Florida courts.

And the possibility that the next president might have lost the popular vote and won by so few electoral votes has some people up in arms, trying to reform the Electoral College.

The Electoral College resulted from a compromise between two factions on how the president would be elected. One group wanted the people to wield the power, while the other group would have given it to Congress - arguing in part that most voters were too uneducated to be allowed to directly elect the chief executive.

Reform proponents say the changes are necessary because the college - designed when blacks were still property and women couldn't vote - can pick a president who lost the popular vote, nullifying the popular vote as it has three times in the past.

But reform opponents say the Electoral College - firmly rooted in the principles of the founding fathers and the country's political tradition - should remain untouched to provide a voice for small states and to prevent regional divisions.

Before the Electoral College can be altered on a nationwide basis, it will take a constitutional amendment, which will require approval of the U.S. House and Senate and then ratification by three-fourths of the states.

Constitutional experts say any Electoral College reform likely would take one of two possible routes - abolishing the college outright and using the popular vote to elect the president, or moving from the winner-take-all system to the proportional system currently used in Maine.

Under this system, two of Maine's four electoral votes go to the candidate who received the most votes in the state. The remaining electoral votes are divided between the candidates based on who wins each of the state's U.S. House districts.

But Republican elector Robert Rector of Louisburg opposes any changes to the Electoral College. Rector, who is a history professor at Louisburg College, said political dynamics would completely change without the Electoral College.

He said candidates would ignore the Midwest region to focus their campaign in major cities such as New York and Los Angeles. "The smaller states would be crazy to give up the electoral system," Rector said.

But Yale Law School Professor Akhil Amar, who testified for a 1997 House committee examining the Electoral College, said there was a need to change the 213-year-old institution.

"The Electoral College is an 18th-century device that solved 18th-century problems," Amar said. "But the 21st century presents an entirely new situation."

He said the founding fathers designed the college partly to counteract voter ignorance, in a time when gossip was a frequent source of news.

Amar said the development of a strong media and the Internet, which rapidly disseminates information to widespread audiences, vastly increases the political knowledge of the average voter - making it possible for voters to directly elect the president.

Amar said the outcome of the 2000 presidential election could provide the catalyst needed for building enough support to abolish the Electoral College.

"If Bush should become president, it will encourage more people to push for a change and increase their chances for success," Amar said. "Most people see the Electoral College as a group that reflects their will, instead of an independent body. Electing a president who loses the popular vote, even by a small margin, will eliminate that image."

If Bush wins, it will be the first time in more than a century that a president was elected without winning the popular race.

Republican Benjamin Harrison had about 100,000 votes less than Democratic candidate Grover Cleveland in the 1888 election but won the race with 233 electoral votes to Cleveland's 168.

But UNC School of Law Professor Eric Muller, who specializes in constitutional issues, said it was unlikely the Electoral College would ever be eliminated or changed. "Any proposal (to change the college) would be dead in the water," Muller said.

He said the amendment needed to change the Electoral College on a nationwide basis would likely fail because smaller states, which wield a disproportionate amount of power in the Electoral College, would not approve it.

"The state of Wyoming has about 450,000 (citizens) but gets three electoral votes," Muller said. "It doesn't deserve three - per capita it deserves less than one - but that's the way the college was designed."

Under the Constitution, states receive one electoral vote for each congress member. Wyoming, with two senators and one representative, has three electoral votes - one for about 150,000 people.

California, the most populous state in the nation, has 54 electoral votes - one vote per 600,000 people.

Muller said this system gave voters in smaller states a disproportionate voice in the Electoral College, despite the focus a candidate might place on a larger state like California or Florida.

Muller also said he opposed tampering with the Constitution.

He said the Electoral College has only experienced two problems in about 200 years that would significantly impact the nation - the 1876 and 2000 elections.

The 1876 election also involved problems with Florida voting practices, such as missing ballot boxes and alleged voter fraud. Florida eventually submitted two separate sets of electors - one Democrat and one Republican.

A House committee, which was majority Republican, voted along party lines to accept the Republican slate of electors, giving the race to Republican candidate Rutherford B. Hayes even though the Democratic candidate Samuel Tilden won more popular votes.

Stanford Law Professor Emeritus William Cohen, who teaches constitutional law, said the 2000 election helped show the importance of the college.

"One of the nice things about the college is that we're only concerned with the Florida vote," said Cohen, who supports reforming the Electoral College by adopting a proportional system.

"Imagine the chaos if every precinct in the country was recounting just like those in Florida."

The State & National Editor can be reached at stntdesk@unc.edu.