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Repair the Electoral College

Four Steps Would Help Balance Majority Rule With Minority Rights

By Peter M. Shane
Sunday, October 31, 2004; Page B07

If Tuesday brings another mismatch between the electoral and popular votes, maybe we will finally get national agreement on a significant proposition: Our current electoral college system has got to go.

The most popular idea to replace it -- a national direct election -- has the obvious appeal of honoring our modern-day commitment to the principle of one person, one vote. We would no longer risk the distortion of majority sentiment by a disproportionate allocation of state electors.

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But a national direct election would also mean giving up a number of advantages that thoughtful commentators attribute to the electoral college system as it currently operates.

Operating our presidential contest as 50 state elections (and one in the District of Columbia) means candidates have to be more attentive to minority interests, including rural interests, than they would otherwise be.

The electoral college system limits the burdens of recounting, and the impacts of voting irregularities, to single states.

The winner-take-all system everywhere but Maine and Nebraska, which is based on state law and not on the Constitution, bolsters the two-party system, which many think the basis for our long history of relative political stability.

Moreover, when it accords with the popular vote, the electoral college tends to exaggerate the margin of victory, thus discouraging post-electoral challenges and diminishing uncertainty.

For all of these reasons, it may be attractive to replace our current process with another system of indirect election that simply changes the makeup of the electoral college.

I call my proposal "Drop Two." We should preserve the electoral college, but lower by two the number of electors allocated to every state.

Currently, each state gets a number of electors equivalent to the number of its members of the House, plus two for its senators.

It is the latter allocation that most significantly causes the overweighting of the small states' votes. Giving each state a number of electors equivalent to its House delegation would still overrepresent the less populated states, but not as dramatically.

The second step of a desirable con- stitutional amendment would be to require states to choose their electors through statewide popular votes. This would finally give explicit recognition to the proposition that participating in presidential elections, even if run by the states, is a privilege of national citizenship.

A third step would be to impose the winner-take-all "unit rule" as a national standard, thus protecting the two-party system and the incentive that our current system embodies for consensus-building and governing from the middle. It would keep partisan gerrymandering from affecting presidential elections, and it would avoid the increased likelihood of throwing elections to the House that would likely follow if electors were apportioned within states according to the size of the popular vote.

Finally, a new amendment should provide that, in elections thrown to Congress, each state delegation would vote as a whole, as it does now, but that the vote of each state would be weighted according to the size of its House delegation. In other words, we should not abandon a fair weighting of the states just at the point that the electoral college fails to produce an outcome.

Had this system been in place from 1960 to 2000, it would have changed the outcome of only one election -- the election of George W. Bush over Al Gore. Instead of losing 271 to 266, Gore would have won 224 to 211, which would have accorded with the popular vote.

"Drop Two" thus preserves the institutional advantages of the electoral college while offering a sounder balance between the two fundamental and somewhat contradictory tenets of American democracy: majority rule and minority rights.

Peter M. Shane teaches separa- tion-of-powers law at Ohio State University's Moritz College of Law, where he directs the Center for Law, Policy and Social Science.


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