November 22, 2024
Editorial

Constitutional Tinkering

Minority advocacy groups often try in vain to change the Constitution. Recent failed efforts include proposed amendments to outlaw flag burning and gay marriage. Both of them seem to be stalled in the face of strong opposition. But a current proposal appears to have more steam behind it: direct popular election of the president.

National publications such as The New York Times and the New Yorker magazine have come out in support of a plan to junk the system devised by the founders and in use ever since. In the established system, each state chooses electors based on the number of its congressional representatives. They comprise the Electoral College, and the nominee with a majority of the electoral votes wins, regardless of the total national vote.

Usually, the old system works fine. But in the 2000 election, George W. Bush won the electoral vote despite Al Gore’s half-million popular-vote plurality. And in 2004, when Mr. Bush had a 3 million popular vote lead, a

switch of only 60,000 votes in Ohio could have given John Kerry an electoral-vote majority and the presidency.

So the Electoral College has come under fresh fire. The Times denounced it as “an undemocratic relic.” The New Yorker called it a disposable element in “our ramshackle republic.” Polls show that the 70 percent of the American people would like to get rid of it.

Still, it has been obvious for two centuries that a constitutional amendment would fail, since most smaller states would oppose it, unwilling to lose the leverage provided by the present system. A small group of amateurs, outsiders and former officials has come out with a novel solution. Instead of trying to amend the Constitution, they would persuade each state to pass a law pledging to award their electoral votes to whichever nominee won the popular vote nationally. When enough states had done so to each a majority of the 538 electoral votes, the popular-vote winner would become the electoral-vote winner.

It’s a clever idea, but comes with a practical problem. Election fraud has always been a threat. Cynical politicians have urged people to “vote early and often.” The “cemetery vote” has sometimes been crucial. But in presidential elections, the Electoral College system means that the temptation to cheat exists mainly in the so-called battleground states, where the vote will be close.

But if we adopted direct popular election, however, the temptation of fraud would be spread throughout the country. In a close contest, the gain or loss of a few votes in any state, congressional district or individual precinct would affect the national total and could determine who won.

Instead of the rare case when a nominee won the presidency while losing the popular vote, we could face close elections with legal challenges in every community throughout the country. In a close election, like the one in

2000, we might have to wait for months while court cases played out to determine the winner.

This isn’t an insurmountable difficulty, but supporters should find a fix for it before pressing their agenda.


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