TO THE SPOILS GOES THE VICTOR
Proposals and Prospects for Electoral College Reform
Tuesday, January 23, 2001
by RICHARD E. BERG-ANDERSSON
Now that George W. Bush and Richard B. Cheney (however we pronounce the new Vice President's surname) have been inaugurated into their High Offices and the Bush II White House and the 107th Congress can now get down to the regular business of government- but before the events of the most recent Presidential Election completely fade into memory- let me address some of the issues surrounding the idea of reforming (if not outright abolishing) the Electoral College system which made Election 2000 so memorable in the first place! I will start by outlining the three basic Electoral College reforms which have been proposed over the decades and which will likely be bandied about again in the ensuing months- these being, in turn: DIRECT ELECTION, PROPORTIONAL ELECTORAL VOTE and DISTRICTED ELECTORAL VOTE.
This is the simplest and most basic reform of the current Electoral College system: namely, merely scrapping the entire Electoral College scheme and simply declaring that whichever National Ticket receives the most popular votes for President and Vice-President is to be considered to have been elected President and Vice President. The classic expositions of this idea in the form of a proposed Constitutional Amendment have been the versions proposed back in the 91st Congress of 1969-70: House of Representatives Resolution 91-681 (which actually passed the House on 18 September 1969 [vote: 338-70]) and Senate Joint Resolution 91-1 (which never came to a floor vote in that Congress).
H.R. 91-681 (consisting of 7 numbered sections) declared, in what would have been the Amendment's Section 1 that "the people of the several States and the District constituting the seat of government of the United States shall elect the President and Vice President" and that "each elector [NOTE- "elector" here being the usual Election Law term of art meaning "registered voter": REB-A] shall cast a single vote for two persons who shall have consented to the joining of their names as candidates for the offices of President and Vice President". Its Section 2 declared that "the electors of President and Vice President in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature". Section 3 added that "the pair of persons having the greatest number of votes for President and Vice President shall be elected, if such number be at least 40 per centum of the whole number of votes cast for such offices. If no pair of persons has such number, a runoff election shall be held in which the choice of President and Vice President shall be made from the two pairs of persons who received the highest numbers of votes".
H.R. 91-681's Section 4 further declared that "the times, places and manner of holding such elections and entitlement to inclusion on the ballot shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations". It added that "the days for such elections shall be determined by Congress and shall be uniform throughout the United States. The Congress shall prescribe by law the time, place and manner in which the results of such elections shall be ascertained and declared". Section 5 stated that "The Congress may by law provide for the case of the death or withdrawal of any candidate for President and Vice President before a President and Vice President have been elected, and for the case of the death of both the President-elect and Vice President-elect". The remaining 2 sections consisted of the operative clause common to most post-Civil War Constitutional Amendments giving Congress the power to "enforce this article by appropriate legislation" and declaring precisely when the Amendment would take effect if ratified by three-fourths of the States.
S.J.Res. 91-1 was, in essence, the same as H.R. 91-681, except that it had 8 numbered sections instead of 7 (splitting the clause re: Congress' power to determine by statute the ascertainment and declaration of the victors off from the House version's Section 4, thus creating its Section 5 and bumping back the numbering of the remaining sections). The Senate version also added to its Section 6 (the equivalent of H.R. 91-681's Section 5) the following language not found in the House version: "If, at the time fixed for declaring the results of such elections, the presidential candidate who would have been entitled to election as President shall have died, the vice-presidential candidate entitled to election as Vice President shall be declared elected President". Other than these differences, the only remaining difference between H.R. 91-681 and S.J.Res. 91-1 was in the date the Amendment proposed in these Resolutions of the 91st Congress, had it been ratified, would have taken effect: the House proposed "one year after the 21st day of January following ratification" while the Senate proposed "the 1st day of May following ratification".
So, in essence, what was proposed back in the 91st Congress was Direct Election, by the People of the States and the District of Columbia, of the President and Vice President- running as a ticket- subject to a national runoff election between the top two tickets should no ticket have received at least 40 percent of the national vote in the main election.
Politically, any like proposal for Direct Election of the President and Vice President runs headlong into the conception- true or not- that those States with larger populations generally benefit from this change much more than States with smaller populations; this is often expressed in the idea that, should there be such direct election, the small states will be all but ignored by presidential candidates. Putting aside the fact that the smaller states are largely ignored now (not just because of the higher number of Electoral Votes available in the larger states but also that, with those proverbial "exceptions that prove the rule", the smaller states have tended to consistently vote for the national tickets of one major Political Party over the other), this is a powerful incentive (though the argument be- at least in part- largely disingenuous) for the smaller states to oppose such a change in national election procedures.
It should not be too much of a surprise that the Direct Election resolutions in the 91st Congress passed the House but died in the Senate, as all 50 States- large and small- are equal in the Senate and it is in that body that the small states would have flexed their political muscle. Any new Direct Election Amendment proposed in this new 107th Congress will have the same problem; and, even should such an Amendment somehow gain 2/3 of the vote in the Senate (as well as 2/3 in the House), it will have to run an even greater gauntlet of smaller states in order to get the necessary 3/4 of the States to ratify it: highly unlikely. I would think the adoption of a Direct Election Amendment to be highly unlikely in the current political climate.
PROPORTIONAL ELECTORAL VOTE:
The other two Electoral College reform packages involve keeping the Electoral College but changing the way the Electoral Votes are themselves to be allocated among the National Tickets based on the number and/or percentage of the Popular Vote each ticket has received in each State and the District of Columbia. One such proposed reform is that of dividing up the Electoral Vote of each State (and D.C.) based on the percentage of the vote each presidential/vice-presidential ticket has received in that State (or D.C.): this is known as Proportional Electoral Vote.
The classic exposition of this plan was the Lodge-Gossett proposal introduced in the 81st Congress [1949-50] (and named for its co-sponsors, then- Senator Henry Cabot Lodge, Jr. [Republican of Massachusetts, in his first (and, as things turned out, only) term] and then- Congressman Ed Gossett [Democrat of Texas], in his sixth of seven terms in the House]). Section 1 of the Lodge-Gossett Amendment emphatically declared that "the electoral college system of electing the President and Vice President of the United States is hereby abolished. The President and Vice President shall be elected by the people of the several States"; it then went on to state that "The electors [again, ordinary voters: REB-A] in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature. Congress shall determine the time of such election, which shall be the same throughout the United States." This was followed by language which, by default (that is, if Congress should not set a different date by law), would have made the by-now-familiar "Tuesday next after the first Monday in November" part of the Constitution. However, lest this look too much like Direct Election, the Lodge-Gossett proposal then got down to "brass tacks", noting that "each State shall be entitled to a number of electoral votes equal to the whole number of Senators and Representatives to which such State may be entitled in the Congress"; it then went on as follows:
"Within 45 days after such election, or at such time as the Congress shall direct, the official custodian of the election returns of each State shall make distinct lists of all persons to whom all votes were cast for President and the number of votes for each, and the total votes of the electors [here again meaning "registered voter": REB-A] of the State for all persons for President, which lists he shall sign and certify and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. On the 6th day of January following the election, unless the Congress by law appoints a different day not earlier than the 4th day of January and not later than the 10th day of January, the President of the Senate shall in the presence of the Senate and House of Representatives open all certificates and the votes shall then be counted. Each person for whom votes were cast for President in each State shall be credited with such proportion of the electoral votes thereof as he received of the total vote of the electors for President. In making the computations fractional numbers less than one one-thousandth shall be disregarded. The person having the greatest number of electoral votes shall be President."
The original Lodge-Gossett plan then went on to state that "the Vice President shall be likewise elected at the same time and in the same manner and subject to the same provisions as the President". This proposed Amendment was to take effect "on the 10th day of February following its ratification".
The Lodge-Gossett Amendment was amended in the Senate with the addition of a provision that the President only be declared elected "if such number be at least 40 percent of the whole number of electoral votes. If no person have at least 40 percent of the electoral votes, then from the persons having the two highest numbers of electoral votes for President the Senate and House of Representatives sitting in joint session shall choose immediately by ballot the President. A majority of the combined authorized membership of the Senate and the House of Representatives shall be necessary for a choice." It then actually passed the Senate on 1 February 1950 [vote: 64-27] but died a rather messy death in the House (the result of growing opposition- throughout the Spring of 1950- by primarily liberal groups who wanted any such Proportional Electoral Vote allocated to the States on basis of actual voter turnout in the presidential election compared to total voter turnout nationwide [heck- why not go totally proportional, I suppose!] combined with a rather bizarre speech on the floor of the House in defense of the proposed Amendment by Congressman Gossett himself in July 1950 in which he claimed the present Electoral Vote system primarily rewarded "the radical wing of organized labor" and those who supported the "Zionist position on Palestine": needless to say, this pushed liberal Democrat House members to join conservative Republican Congressmen fearing an inordinate weighting toward the then-still Solid [Democratic] South- "strange bedfellows", indeed!- to ultimately kill the proposal in that body).
Putting aside the base prejudices of one of its co-sponsors, the Lodge-Gossett Amendment would have failed in the House anyway because it was clearly seen as benefiting the smaller states to the detriment of the larger ones (keep in mind the Texas that Congressman Gossett hailed from was NOT the Texas that produced current President Bush: whereas the Lone Star State will, beginning in the 2004 Election, have more Electoral Votes than New York, the then-largest State to whom Gossett's rather uncalled for invective was apparently directed- at the time Gossett spoke, Texas had less than one-half the Electoral Vote of the Empire State). It is, therefore, no surprise that Lodge-Gossett's Proportional Electoral Vote passed the Senate and not the House; one would have to assume that a similar proposal in the 107th Congress would suffer much the same fate.
In addition, there appears to be something altogether illogical about the proposal at any rate. First of all, it seems that, if you are going to go through the trouble of having Electoral Votes, you might as well also have the bodies known as Presidential Electors as an inherent part of the system (and, of course, you can't have, say, 686/1000th of an Elector show up at the State Capital on the Monday next after the second Wednesday in December... my question would naturally be: WHICH 686/1000th and where would we do the cutting?). Secondly, as to the counting of the votes and the calculations to be made as the certificates are opened (now, wouldn't THAT make an "exciting" tabulation Joint Session every fourth 6 January!: the sounds of the "ticking"- as the keys of many an electronic calculator at the House Clerk's desk were being pressed- echoing off the walls of that historic chamber!!), reading the Lodge-Gossett plan, I couldn't help but hear echoes of the words our new Vice President, Dick Cheney, used when he scored Senator Lieberman on a tax cut proposal during the Vice-Presidential Debate this past 5 October: You'd have to be a CPA to understand what he just said. Proportional Electoral Vote is just plain too complicated: this alone makes Proportional Electoral Vote the least probable of the three major types of Electoral College reforms to be adopted, given the present political climate.
Before we completely leave Proportional Electoral Vote, however, it is interesting to note just how- according to published studies of the issue- the use of Proportional Electoral Vote would have changed the outcome of some presidential elections (and, with these- presumably, American History): to take just one such example, Richard Nixon (with- ironically- Henry Cabot Lodge, Jr. of "Lodge-Gossett" as his running mate) would have, thus, been elected President over John F. Kennedy in 1960 by the bare margin of 266.1 to 265.6!
DISTRICTED ELECTORAL VOTE:
The oldest Electoral College reform (in terms of distributing the Electoral Vote among the candidates) is that of choosing Presidential Electors by sub-State District. Alexander Hamilton himself is credited with first addressing this issue with a proposal, in the wake of the Jefferson-Burr deadlock of 1800, that the States be divided into a number of "Electoral Districts" equal to the number of Presidential Electors to which the State is entitled, each District choosing one Elector. This Elector District proposal was embodied in the original draft of what would eventually become the 12th Amendment (the version defeated in the 7th Congress Senate by the vote of New York Senator- and one time Framer of the Constitution- Governeur Morris) and, as things turned out, was not included in the 12th Amendment which finally gained 2/3 of the vote in each house of the 8th Congress and then garnered ratifications by 3/4 of the States just in time for the 1804 Election.
Such "Electoral Districts" are, most assuredly, not a viable option today. Besides the notion that creating districts to be used only two or three times- and for such a limited purpose- every ten years would not be particularly palatable, there seems to be the pervasive feeling that reapportionment of Congressional and State Legislative (and, perhaps, other- such as Judicial) Districts is enough of a headache- if not a nightmare [!]- for the average state legislator (as such state legislators will soon find out in the course of this calendar year of 2001!!) that adding yet another set of Districts to be drawn up by the State Legislature and then subject to testing via the inevitable lawsuits to be filed in State Courts is just a bit "over the top".
As a result, the more usual proposal for District Electoral Vote is in the form of the people of the States (and D.C.) each choosing 3 Presidential Electors: 2 statewide (representing the two seats each State has in the U.S. Senate) and 1 from each Congressional District (this is precisely what Maine and Nebraska- each of these States having used its authority, under the U.S. Constitution, to "appoint, in such Manner as the Legislature thereof may direct, a Number of Electors"- have done on their own- beginning with the 1972 and 1996 Elections respectively). The classic exposition of this plan was the so-called Mundt proposal (named for then-South Dakota Republican Senator Karl Mundt, who proposed it in both the 89th and 90th Congresses), essentially a post-"one man, one vote" (as mandated by the series of cases- headed by Reynolds v. Sims- decided by the U.S. Supreme Court in 1964) reworking of the older Mundt-Coudert Districted Electoral Vote plan of the early 1950s (Coudert, Mundt's one-time "partner in crime", being then-Congressman Frederic R. Coudert, Jr.- Republican of the so-called "silk stocking" district of the Upper East Side of Manhattan later to be represented in Congress by such notables as future New York City Mayors John V. Lindsay and Edward I. Koch).
The heart of Mundt's Amendment declared that "the Electors to which a State is entitled by virtue of its Senators shall be elected by the people thereof, and the electors to which it is entitled by virtue of its Representatives shall be elected by the people within single-elector districts established by the Legislature thereof; such districts to be composed of compact and contiguous territory, containing as nearly as practicable the number of persons which entitled the State to one Representative in Congress; and such districts when formed shall not be altered until another census has been taken". Note that, theoretically, a State COULD, under the Mundt plan, form Elector Districts- while equal in number to the State's Congressional Districts- different from the Congressional Districts; however, I would think the States would not necessarily have availed themselves of this possibility had Mundt's Amendment been ratified and that, as a practical matter, the Elector Districts envisioned by the Mundt Amendment would have ended up being exactly the same as the Congressional Districts in any given State.
The Mundt plan also included some other reforms which, while they do not directly bear upon the issue of how the Electoral Votes are to be distributed among the presidential/vice-presidential tickets as a result of the election returns, are nonetheless rather interesting. For example, the proposed Amendment provided that "before being chosen [in reality, "nominated" before each presidential election: presumably, as now, by the Political Parties in each State: REB-A] Elector, each candidate for the office shall officially declare the persons for whom he will vote for President and Vice President, which declaration shall be binding on any successor" (thus pledging or binding all Electors to cast their ballots for the winning national ticket in a given State or District). The Mundt proposal also stated that "If no person voted for as President [by the reconstituted Electoral College: REB-A] has a majority of the whole number of Electors, then from the persons having the three highest numbers on the lists of persons voted for as President, the Senate and the House of Representatives, assembled and voting as individual Members of one body, shall choose immediately, by ballot, the President"- in addition, "a majority of the whole number shall be necessary to a choice": the same procedure is indicated as to the choosing of a Vice President who has likewise failed of a majority of the Electoral Vote (it is interesting to note that, where both these two modern Electoral College reforms [Proportional and Districted] devolve the choice of a President and/or Vice President onto Congress, it is a joint session of Congress- voting as individuals and not as States- that does such choosing!... no more of the House- voting as States- choosing the President and the Senate- voting as individuals- choosing the Vice President!!)
One other Mundt reform is intriguing as well, where it states "if additional ballots [in the joint session of Congress where no candidate has achieved a majority of the Electoral Vote: REB-A] be necessary, the choice on the fifth ballot shall be between the two persons having the highest number of votes on the fourth ballot." (no 36 ballots taken in the House to choose a President- as in February 1801- HERE!). The Mundt Amendment, had it been adopted, would have taken effect "on the 1st day of July following its ratification".
As with the Proportional Electoral Vote plan, it is interesting to take a look at presidential election outcomes which would have been substantially different had the Mundt proposal been in effect: to, again, take only one intriguing example- the 1976 election under a Districted Electoral Vote system (each State choosing 2 Electors statewide, the rest of its Electors on the basis of 1 per Congressional District) would have resulted in a 269-269 TIE [!!] between Democrat Jimmy Carter and Republican Gerald Ford (Carter, however, would still have been elected President had the vote- by individuals [as proposed in the Mundt Amendment] - in the joint tabulation session of the 95th Congress followed Party lines, as the Democrats controlled both houses of that Congress).
In the present political climate, Districted Electoral Vote appears to be the most likely of the three main Electoral College reform proposals to actually make it as a Constitutional Amendment (though its chances of adoption remain outside at best: I, for one, certainly wouldn't "bet the farm" on its ultimate success!). It certainly would be the more likely proposal to be supported by the small and medium-sized states which would be opposed to Direct Election and, while on its surface it would appear to be anathema to the larger states (for it would split up the influence and weight they currently carry by awarding their Electoral Votes to the statewide winner en bloc), it IS entirely possible that enough political pressure COULD be brought to bear on Congressmen from at least some of these larger states (for it is in the House of Representatives- where the larger states predominate- that this proposal would have more trouble than in the Senate, where- again- all States, regardless of population, are equal) from those in those larger states who would want to have at least some reform of the Electoral College, would swallow hard in accepting the fact that Direct Election just "ain't happ'nin" and, thus, work for Districted Electoral Vote as a viable alternative to just leaving the Electoral College system "as is". Nevertheless, I think such pressure on larger state Members of Congress is, in the end, rather unlikely (I certainly currently see no real groundswell of supermajority support for any of these three Electoral College reform proposals) and I would have to here opine that "No Change" re: the Electoral College- as presently provided by the U.S. Constitution- is the likeliest outcome of all- UNLESS, for some strange reason, there be a call for a
SECOND CONSTITUTIONAL CONVENTION:
All of the above three reforms re: the way our Nation elects its President and Vice President are, of course, predicated on the use of one of the only four methods of Amending the U.S. Constitution provided by that document's Article V:
1. 2/3 of each house of Congress voting out a proposed Amendment which is adopted when ratified by the Legislatures in 3/4 of the States [the usual route of amending the Constitution, used for all but one of the 27 Amendments to the U.S. Constitution adopted so far]
2. 2/3 of each house of Congress voting out a proposed Amendment which is adopted when ratified by popular Conventions in 3/4 of the States [so far, used only once- with the adoption of the 21st Amendment repealing the 18th "Prohibition" Amendment in 1933]
3. 2/3 of the States applying to Congress for a national Convention to propose Amendments, none of which will be considered adopted unless ratified by the Legislatures in 3/4 of the States [heretofore never utilized]
4. 2/3 of the States applying to Congress for a national Convention to propose Amendments, none of which will be considered adopted unless ratified by popular Conventions in 3/4 of the States [also heretofore never used]
3. and 4. above have never been resorted to, in part, because of technical questions regarding the legal form of the applications by the States to Congress for such a national Amending Convention (for example, does the wording in said applications received from the several States have to be more or less exact in order for Congress to count 2/3 of the States having so applied?) but also, in part, because of a pervasive "Fear of Freedom" in all corners of the political spectrum of the good ol' USofA these days- not only among the more conservative "Republic, not a Democracy" crowd but also among liberals who fear that a runaway Amending Convention- perhaps dominated by conservative "Hard Right" activists- could, conceivably, gut the Bill of Rights and other Civil Liberties protections (at least as liberals have tended to interpret these). Aside from the complete lack of faith in Liberty in general- as well as the Union in particular- this "Fear of Freedom" evinces among many conservatives and many liberals (to whom I can only respond with the title of one of my earlier Commentaries- "a pox on both your houses!"), the fact that 3/4 of the States still (whether through the ordinary Legislature or the extraordinary popular Convention) would have to then ratify anything proposed by such a potential runaway Amending Convention in order for it to ever become part of the Constitution is the one protective element included in Article V's having provided for just such an Amending Convention.
There is, however, yet one more radical device through which the Electoral College COULD be reformed, if not outright abolished altogether, and that would be a Second Constitutional Convention which could- in theory- completely rewrite the fundamental legal document of the United States of America- including, naturally, its Electoral College provisions- without any recourse whatsoever to Article V of the present U.S. Constitution. The concept of just such a Second Constitutional Convention obviously brings the "Fear of Freedom" I mentioned in the preceding paragraph to nothing less than a fever pitch and, rather obviously, such a course is extremely unlikely in the present political climate in any event: one certainly does not see this potential reality on the horizon (the hue and cry over the issues engendered by the disputes over the results of the 2000 Presidential Election in Florida is nowhere near vocal enough to even begin to forge consensus to take such a radical step: if the three Electoral College reform proposals outlined earlier in this Commentary are not going to so easily be considered in the wake of the outcome of this most recent election, surely a Second Constitutional Convention is well out of the question!). Nevertheless, I throw it out there as yet another possible (however improbable) route to National Election Reform- if only to make this Commentary on the issues of such reform as complete as possible.
Most of you reading this will have read the words "without any recourse whatsoever to Article V of the present U.S. Constitution" I have written in the preceding paragraph and, perhaps, even have blanched; you could then (and properly so) argue that such a Second Constitutional Convention would be "extraconstitutional"- a nice way of really saying "constitutionally speaking, outright illegal". However, keep in mind the identity of those who "do ordain and establish this Constitution for the United States of America" (and I use the present tense of "ordain" and "establish" purposely- not just because that is the way they have to appear in a quotation from the document's Preamble- but as a reminder that the Constitution is ordained and established anew as long as it remains our Nation's fundamental charter: for example, many of you reading this who honestly believe the 2000 Presidential Election was stolen from Al Gore- who, in the minds of those I here address, should have been declared the rightful victor of that contest- nevertheless, except for a few malcontents here and there, accept the inescapable fact [however reluctantly or begrudgingly you-all have accepted it] that George W. Bush IS, constitutionally, the 43rd President of the United States and that he legally exercises the powers and duties of that Office; those of you reading this who supported the candidacy of Mr. Gore, I am sure, have vowed, each in your own individual manner, to fight the new President's policies with which you disagree- in many cases, strongly- but, at the same time, in so doing, you-all have also reaffirmed the ordination and establishment of that very Constitution the new President has sworn- in front of all of us [on videotape, if not "live"]- to "preserve, protect and defend": your own champion, former Vice President Gore- and, I would dare say, his opponent President Bush himself- would have expected no less of you)- such ordination and establishment being done by "We the People of the United States". And what "We the People" have so ordained and established, "We the People" can likewise unordain and disestablish!
I myself have yet to find a primary sourcebook of Federal law which fails to, along with the Constitution of the United States, include the Declaration of Independence and the Articles of Confederation. While it is true that the Declaration of Independence does not have the force of Law per se (as neither does the Preamble to the Constitution itself), it does- like the Preamble- show one the philosophical underpinning of the American Revolution that, in the end, made the present U.S. Constitution possible. "We hold these truths to be self-evident", the most famous and influential section of the Declaration so emphatically declares, "that all men [and in our own time, we would make it abundantly clear that "men" would here mean "humans", regardless of gender: REB-A] are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these [implying others unstated, by the way: REB-A] are Life, Liberty and the Pursuit of Happiness.- That to secure these rights, Governments are instituted among Men [again, Women, too!: REB-A], deriving their just powers from the consent of the governed,- That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government [italics, obviously, mine: REB-A], laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."
Theoretically, then, "We the People" COULD simply authorize (with or without the consent of a Congress under the present Constitution), elect delegates to, and have these delegates represent us in, a Second Constitutional Convention- without any reference to the present Constitution, its Congress or its other institutions- including its Electoral College (after all, these all operate with "the consent of the governed"; we, the governed, do not- when push comes to shove- really need the assent of politicians and bureaucrats). And there is ample precedent for this in our Nation's own rich history: not only in the Declaration of Independence itself, which asserted that very "Right... to institute new Government" in complete disregard for the wishes of the then-still-young British Empire from which the then-United Colonies were, at the same time, declaring themselves separated but also in the immediate aftermath- and, indeed, as an indirect consequence- of that which that very Declaration had defended. The Continental Congress, the fundamental governmental body under the Articles of Confederation, resolved- on 21 February 1787- that "in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation".
Clearly, that Convention of 1787 so authorized went well beyond simply "revising the Articles" (including completely ignoring the Amending Procedure of those Articles which required all 13 States- that is, the State Governments- to concur in any Amendment of same by requiring only 9 States- and popular Conventions, not Governments, in those States- to bring the new Constitution into force). Indeed, what the Framers did in Philadelphia was- at the time- as "extraconstitutional" as any Second Constitutional Convention which could alter the process of electing our Nation's leader(s) would be; yet, the Continental Congress- instead of, on those very grounds, declaring the work of the Framers null and void- instead resolved, on 28 September 1787, that the new document crafted in Philadelphia "be transmitted to the several legislatures in Order to be submitted to a convention of Delegates chosen in each state by the people thereof in conformity to the resolves of the [Constitutional] Convention". Furthermore, on 13 September 1788, once the new Constitution had been ratified according to its own provisions and not at all those of the Articles of Confederation, the Continental Congress of those Articles so completely ignored itself set the timetable for the election of the first President under that new Constitution. Again, there is ample precedent for a Congress- under enough political pressure from its constituents to do so- to authorize its own dissolution as the Continental Congress of 1787/88 had done!
Again, any Second Constitutional Convention would be- given the present political climate, along with that "Fear of Freedom" of which I spoke- a quite radical means of achieving National Election Reform and, thus, inconceivable as a vehicle of such reform in the near future; in addition, one must ever be mindful of the words which immediately follow the section of the Declaration of Independence I quoted earlier: "Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." One would have to think long and hard before declaring in one's own mind that the Electoral College as presently constituted- along with the failure of adoption of any of the three Electoral College reforms outlined earlier in this Commentary- was such an "evil" as to not be "sufferable" (as opposed to its merely being a "cause" rather "light and transient") in order to make viable any chance of "We the People" calling for the radical alternative of a Second Constitutional Convention to achieve due and proper redress of just such a grievance. Nevertheless, it has to be admitted that this concept is not as inconceivable as it might appear at first glance and that it cannot be assumed that some future Congress under this Constitution- long after the author of this piece is no longer walking this mortal plane: perhaps, the 130th or 140th such Congress- will not ever perform, under its own initiative (where not forced by the People themselves), services similar to those once rendered the Nation back in 1787 and 1788 by the last Continental Congress under the Articles of Confederation! It is for this reason alone I include the concept of a Second Constitutional Convention divorced from the Amending Procedure outlined in Article V of the U.S. Constitution as an option (however unviable at present) in this Commentary on Electoral College reform in general.
AT LEAST ONE CASE FOR LEAVING THE ELECTORAL COLLEGE "AS IS":
I don't want to give the impression- in my discussion of Electoral College reform herein- that the final option, doing absolutely nothing about the present constitutional provisions governing the Electoral College, is not somehow palatable and is necessarily undesirable and, again, this Commentary would be incomplete were I to leave out at least some final words regarding the case for leaving the Electoral College alone, despite the events of this most recent Presidential Election.
The fact is (as I myself pointed out in an earlier Commentary of mine written in the heat of the dispute over the election outcome in Florida) that the Electoral College may, indeed, have helped the Nation dodge something of a bullet. While it is true that the Florida election mess itself would not have even been an issue had the Electoral College not existed (a situation in which- presumably- we would already have had Direct Election of the President and Vice President: former Vice President Gore would have been "President Gore" as I write this and George W. Bush would be, instead of fulfilling his obligations in the Oval Office, still carrying out his duties as Governor of Texas), it is equally true that the type of electoral mess we all so recently beheld in Florida was, in the end, confined to that State alone- also as the result of the existence of the Electoral College.
Even under a Direct Election system (and certainly under the
Proportional or Districted Electoral Vote schemes), the States would
still have been responsible for counting the raw votes and providing
the election returns. Several States that eventually went to former
Vice President Gore (most notably: Iowa, New Mexico and Wisconsin) were
close enough to potentially merit potential recounts along the lines of
what had been requested by the Gore campaign in Florida (perhaps even
the Bush state of New Hampshire might also have been placed in this
category). This fact is today blurred by Gore's relatively large
margin of plurality (over 500,000) in the Popular Vote, which we tend
to look at now solely as a final sum; yet, in reality, it is only the
sum of its parts. Only a little over two months ago, Gore's national
margin appeared to be substantially less than it appears to have
finally been (as one then still awaited the counting of absentee
ballots, for example) and recounts would clearly have been asked for in
all the closer states on the basis of that earlier margin (before it
could be known what the final margin might yet be); instead of what we
saw only in Florida, we might have- in fact- had several "Florida"s.
In an odd- and, indeed, singular- irony, the Electoral College system
helped to better focus a problem it itself had caused!