Professor of Political Science Demetrios James
Caraley Argues for Reforming the "Winner-Take-All"
Electoral College
Introduction:
Demetrios James Caraley is Janet Robb Professor
of the Social Sciences at Barnard College and
professor of political science in the graduate
faculties of Columbia University. He has published
numerous books and articles on national security
policy, congressional policymaking, and party
and urban politics, including The Politics
of Military Unification, and is the editor
of Political Science Quarterly. He has
been a chair of the mount Pleasant Democratic
Party in Westchester county and also has been
an elected official in North Tarrytown, NY.
In
the following interview about the Presidential
election, Professor Caraley argues for abolition
of the "winner take-all" method by which states
vote in the Electoral College; says the Florida
Legislature has no right at this point to choose
Electors; and says the Florida election deserves
scrutiny. Caraley also notes that there is precedent
for judicial review of election results.
Q:
In the wake of the Election, should we do away
with the Electoral College or at least examine
its relevance?
A: Despite what Mrs. Clinton said the night
she was elected, you can't do it with legislation.
It has to be by Constitutional amendment, and
that will never happen. There were advantages
given to small states in the constitutional convention
by giving them two extra electoral votes, regardless
of size of population, over those electors they
got for seats in the House of Representatives.
Since a Constitutional Amendment requires three-quarters
of the states to be approved, that will never
happen. By the way, there is strictly speaking
no "electoral college;" the electors meet in their
respective states, they don't meet together.
What
can be changed without Constitutional amendment,
because the Constitution is silent on the point,
is the winner take-all system of awarding electors
from each state. The practice started in the 19th
century when the big, populous states like Ohio,
Pennsylvania, New York, wanted to have a lot of
clout. They said, "instead of splitting the electors
proportionately, if we have winner take all, boy
are the parties and candidates going to cater
to us."
Now,
as it turns out with TV, if you lived in New York,
Connecticut and New Jersey, you didn't see any
Gore or Bush TV commercials because our states
were not in play and neither party wanted to spend
money on us. There were no such ads in California,
or in Bush territory in Texas. Both parties were
spending TV money in the states that were in play,
so it has even backfired for the intended purpose,
because people have taken big states that normally
vote Republican or Democratic for granted.
In
states that do not have winner take all, like
Maine and Nebraska, let us say there are 45 votes,
then you elect an elector for each congressional
district, and whoever wins the statewide popular
vote gets the 2 electors who are given to the
states. If you divided it proportionately, the
dispute over the vote in three counties of one
state such as Florida wouldn't have much an impact
because it would only affect one or two electoral
votes, not the electoral vote for the whole state.
Then without doing away with the Electoral College
as it is called, you have done away with a lot
of its evils.
Can
Congress by statute mandate it? That is less clear
to me. I think under the necessary and proper
clause of the constitution it might. But state
legislatures can start the process-Maine and Nebraska
already don't have winner take all.
Q:
If the Florida legislature decides to calls a
special session to determine Florida's slate of
electors, what Constitutional issues would this
raise?
A: As I read it, Article II of the Constitution
says that the state shall choose the Electors
and it says how many and the formula, and then
it says the State Legislature shall choose the
manner of their selection. The manner of their
selection in Florida law was by popular vote.
I don't believe that after you have the election
by popular vote you can then change the manner,
that you can say, "no we changed our minds and
the selection of the electors will be by the State
Legislature."
That
provision in the original Constitution was there
to leave open how much popular democracy there
would be in the election for president. For example,
the framers did not want the people directly to
elect senators and so made them electable by the
state legislature. For the presidential electors,
they left it open and left it for the states to
determine how much popular vote there would be
for presidential electors.
Since
Andrew Jackson's day, the states have said the
people should elect the electors. Once you've
had the election, even certified it, you can't
go back and change the rules for the same election.
Florida can, of course, change it for future presidential
elections and thus abandon the popular democratic
process, but it can't change it now.
Q:
Have the courts ever played such a significant
role in the history of U.S. elections? Should
we be worried about their role?
A:
They did on a completely different issue, and
that was on the question of racial discrimination.
After the 13th, 14th and 15th amendments nominally
gave black people the right to vote, in the South
they didn't actually vote because there was intimidation,
poll taxes, and the so-called white primary which
was the Democratic primary where its winner would
capture the seats since Republicans never won;
the southern Democrats defined themselves as private
organizations and claimed the were not subject
to the equal protection clause of the 14th amendment.
And over the years, the Supreme Court knocked
all of those unconstitutional barriers down. So
there was judicial intervention, but not on this
kind of issue.
I
don't have problem with the Courts getting involved
as a last resort. I have a problem with the pundits
going into what party elected them and thus trying
to destroy their legitimacy. That is why almost
all judges are appointed or elected for life,
so they wouldn't be tied to public opinion. Courts
have been involved in election cases, though it
has never been the case before that it was on
the outcome of a big state, the outcome of whose
vote would determine the presidency and this is
the first time.
A
major part of our system, according to Alexander
Hamilton, John Marshall, and James Madison and
the other framers, was the principle of judicial
review: That someone has to review administrative
acts, and that someone would be an impartial judiciary
which didn't have to worry about election. It
established the principle in Marbury v. Madison
in 1803, that when you have a statute that is
not clear, or a statute that conflicts with the
Constitution, or an executive official does a
particular act that is challenged, someone has
to declare what is right. This is what we mean
by a country that lives under laws, not men.
Q:
Are the allegations of voting activity made by
Democrats - undercounted ballots, improperly postmarked
military ballots, butterfly ballots, and absentee
ballots whose applications are filled in by voting
officials - unusual, or par for the course?
A:
It is not par for the course. I was involved in
highly partisan elections when I was living in
Westchester. These things do not happen, and they
do not all happen simultaneously in the same state,
and in the state whose chief executive is the
brother of one of the candidates, so I don't think
it is regular. In the case of some absentee ballots,
I understand that the GOP printed the application
forms, filled them in, and sent them only to GOP
voters, but they didn't send them to registered
Democrats, and it was not a state printed ballot.
I have never heard of that before. This is not
par.
Q:
Will there be reform in the way we vote?
A:
I think so. One of the states -- I think Wisconsin
-- already passed a law prohibiting use of the
punch cards. We scholars used punch cards for
voting analysis 30 years ago. As a political scientist,
it surprised me to learn that there were states
that have such primitive systems.
Q:
Why is this Election the closest in history?
A:
I think it's simple: Both presidential candidates
are distrusted either because of lack of sufficient
intelligence or terrible personality. They are
both charismatically constipated in terms of warm,
honest feelings. And since the nation isn't split
on the issues, the middle is almost for the same
thing, there isn't strong voting incentive coming
from big differences on the issues, they vote
on personality which in this election meant for
the person they least disliked. On policy issues,
it reminds me of my Navy days as a navigator,
the command was steady as she goes, not too much
to the left or right, but steady as she goes.
Since
the electorate has started to take for granted
that we're going to have a terrific economy forever,
they say, it doesn't matter who's in charge -
which is actually a big mistake - so then it goes
to personality. With Bush his nomination came
from a sense of inevitability, while Gore is a
sitting vice president and had all the advantages
that position brings.
Despite
what the Bush people say, and the charge that
foreign nations are laughing at us, no one cares,
because no one's life will change very much. Because
you have an evenly divided Senate, a House with
a margin of less than 10 for the GOP, no one can
make radical departures.
Q:
Bold strokes will be difficult, then.
A:
It will be very difficult working with Congress,
since neither side has a clear advantage or a
significant popular mandate. If all members of
Congress had lobotomies, they could become non-partisan
statesmen. Since that won't happen, anything that
passes has to have two-party support because you
need 60 votes to pass anything controversial in
the Senate, and in the House a small defection
from the Republican majority can stop anything
radical.
I
personally think Bush -- despite that he doesn't
even have the mandate of a popular vote majority
-- may be better at building two party coalitions
of the center than Gore, but we don't know.
Q:
Who has won the public relations battle?
A:
I think Bush, although The New York Times
poll says the country is split down the middle
as to whether Gore should concede or not. We have
until at least January 5 or 6. The December deadlines
are just phony. There have been election returns
that weren't certified, that weren't essential
to the outcome, and Congress, the president of
the Senate accepted them as late as Jan. 1 or
so. If the Florida thing isn't done by the 12th
or the 17th, or even Dec. 31, if they send their
ballots to the President of the Senate, who incidentally
will still be Gore when the new Congress opens,
it is inconceivable to me that he could just declare
their postmark was too late and they wouldn't
be counted.
You're also going to have another interesting
situation. The President of the Senate is Gore
until Jan. 20, there will be 50 Democrats and
50 Republicans, and with Gore as a tiebreaker,
the Democrats would have a working majority until
a new vice president may be elected.
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