Tinkering with the Electoral College vote

By Marion Edwyn Harrison
web posted September 6, 2004

Earlier this year I briefly recounted the history, mission and
practical effect of the Electoral College, characterizing it for
many as a ho-hum/so- what subject. The subject soon may
become less ho-hum/so-what.

Let's recall that as the Electoral College was intended to
function, and historically has functioned, the Presidential
candidate receiving the highest number of popular votes within a
State (and since 1961, Constitutional Amendment XXIII, also
within the District of Columbia) receives the full electoral vote for
that State. The electoral vote ranges from three each out of the
States of Alaska, Delaware, Montana, North Dakota, South
Dakota, Vermont and Wyoming, and the District of Columbia,
to 55 out of California. The Article I, § 2 Constitutional
calculation, except for the District of Columbia, is that the
electoral vote equals two (because each State has two United
States Senators) plus the number of the State's Representatives
in Congress, aka Members of Congress or
Congressmen/women.

Thus, pollsters, politicians and interested citizenry alike
concentrate more upon "swing" States than solid party States.
Even within a swing State Presidential campaigning may
concentrate disproportionately upon swing areas of the State.
Pennsylvania, for example, is evaluated by many as a swing
State. Within Pennsylvania, the swing vote predominantly is
suburban Philadelphia, suburban Pittsburgh and some other
places other than its two major cities.

To many of us there is enduring wisdom in the Founding Fathers'
concept of federalism and national union. For the moment we'll
leave the subject of the Electoral College and its role to lawyers,
political scientists and others who write about it -- e.g., in the
past several years alone, the Cumberland, Harvard, North
Carolina, Notre Dame, Nova, Oregon, Vanderbilt and William
& Mary Law Reviews have published on the subject.

Maine and Nebraska laws, Maine Revised Statutes Annotated,
Title 21-A, § 9-805.2; Nebraska Statutes, Art 7, § 32-714,
provide that their electoral vote does not go winner-take-all but
rather is apportioned. Thus, Maine with four votes, Nebraska
with five, as a matter of law could divide their electoral votes.
Two from each would be cast for the candidate receiving a
plurality of popular vote statewide. The other two (Maine) or
three (Nebraska) would be cast for the candidate receiving a
plurality within a congressional district. So the Maine electoral
vote could be 4-0 or 3-1, the Nebraska 5-0, 4-1 or 3-2.

What's brewing in the Rockies? Colorado, apparently with
considerably more than the required 67,000 or so signatures,
likely will have a referendum proposal on the November 2, 2004
ballot, to apportion electoral votes a la Maine and Nebraska --
and to do it retroactively! Any such Colorado change in law
almost surely would divide the Colorado electoral vote because,
unlike Maine (two Democrats) and Nebraska (three
Republicans), Colorado's Representatives in Congress are not of
one party (two Democrats, five Republicans), so the
congressional-district majorities almost surely would differ.

If the Colorado initiative were to pass and to be sustained
judicially, the time bomb would explode! The nine Colorado
electoral votes would be split and that split could determine the
election if, like 1876 and 2000, the electoral vote were
sufficiently close, confused or contested. (Incidentally, the 1876
Election makes the 2000 look like child's play. A fascinating
read: Rehnquist, CENTENNIAL CRISIS [Knopf, 2004]).

Less dramatic, there also could be an inherent unfairness in the
result. In congressional districts in States in which the State
popular vote went one way and that of a particular district the
other way, the voters in the dissenting district would be denied
the value of their vote.

Amid the furor and emotion of a Presidential campaign and only
a short Congressional session remaining, it would be imprudent
to attempt now to evolve a solution to the theoretical -- and
probably real -- unfairness arising from the proposed Colorado
change. However, the subject screams for attention in 2005 and
thereafter.
 
If national requirements might be changed, at the least look for
many in the populous states to want to abolish the Electoral
College or, alternatively, delete its 102 votes arising from the
existence of two Senators per State and the extra two District of
Columbia votes (because the system arithmetically weighs a
small-State prevailing vote higher than a large-State prevailing
vote). However, as we have discussed before in these columns,
enactment of a controversial Constitutional amendment would be
time-consuming and onerous, probably impossible.

Meantime, pollsters and other prognosticators, take heed! Who
knows what time bomb will explode in the Rockies!

Marion Edwyn Harrison is President of, and Counsel for, the
Free Congress Foundation.

Enter Stage Right -- http://www.enterstageright.com