Electoral College's Critics Have Exhibit A

TIMES STAFF WRITER

The likelihood of a split result in Tuesday's election has renewed calls to scrap the electoral college, the 18th century system that allows state party officials, rather than the nation's voters, to decide who becomes president.

It is a "dinosaur that should be retired to a museum," said Sen. Richard J. Durbin (D-Ill.). He has proposed amending the Constitution and providing for the direct popular election of the president.

His proposal is likely to get serious attention in the year ahead, now that a modern-day candidate stands to lose the presidency despite winning the most votes.

If Texas Gov. George W. Bush prevails in Florida, he will have the necessary 270 electoral votes to win the presidency, even though Gore has a popular-vote margin of slightly less than 200,000.

Nonetheless, the vice president and his top aides said that they would readily abide by the electoral college outcome.

"It is the winner of the electoral college who will be our next president," Gore said in Nashville. "Our Constitution . . . must be followed faithfully."

If Bush's slim Florida edge holds, the Texas governor will be in a position to declare himself the winner.

It is then up to the 538 electors. They are chosen by state parties. Some are elected officials. Others are loyal party activists.

On Dec. 18, the electors will assemble in state capitals, and in all but two states the law calls for the winner of the popular vote to win all electors' votes.

Their ballots in turn are forwarded to the president of the U.S. Senate--who happens to be Gore--who will certify them Jan. 6.

Since 1948, however, there have been seven so-called "faithless electors" who have broken their commitment to a party candidate, usually to make a political statement or promote a cause.

Margarette Leach was one such maverick. In 1988, Leach, a nurse in Huntington, W.Va., became the most recent member of the electoral college to break her commitment to her party's candidate.

Chosen by the state Democratic Party as an elector for presidential candidate Michael S. Dukakis, who carried only a handful of states against George Bush, Leach decided to make a symbolic protest for electoral college reform. Instead of putting Dukakis at the top of the ticket, she placed instead Democratic vice presidential candidate Lloyd Bentsen.

Leach, elected Tuesday to a fourth term in the West Virginia House of Delegates, said that she wanted to demonstrate the potential dangers of an institution in which most of the electoral college members are not legally bound to vote for the winning candidate on their state party slate.

"I don't think many people are aware what a dangerous way this is to elect a president," Leach, 73, said in a telephone interview from her West Virginia home.

Legal experts, however, disagree on the issue of an elector's legal obligation to vote for their party's nominee. Half the states, including California, have laws requiring electors to vote for the state's winner.

But the Constitution has no such requirement. Indeed, some legal experts said that it was understood that electors are free to make their own decisions.

"The Constitution did not intend them to be potted plants," said Yale University law professor Akhil Amar. "It is permissible for them to decide they will follow the nation's will rather than their state's majority. It is possible to imagine three of 271 electors deciding this is not quite right and switching their votes. But that is also unlikely. They are chosen for their political loyalty."

American University professor James Thurber said "theoretically, it could happen" that one or more Republican electors could vote for Gore. "There is no absolute requirement to vote with your party."

But there is strong tradition, as well as individual loyalty, that tends to influence electors to vote with their states and their parties.

Gore campaign manager Bill Daley said that he expects electors to follow the long tradition. "Obviously, I think there is a presumption" the electors will vote with their states. "The vast majority of them are legally bound, and I would assume, if you're legally bound, you believe you are morally bound."

Still, many academic critics said that the electoral college is archaic and should be abolished.

In 1787, the framers of the Constitution were unwilling to let ordinary people choose the president.

"They didn't trust the people," said Vanderbilt University law professor Suzanna Sherry. "They want a filtered democracy. The people would elect prominent citizens who would actually deliberate and choose the president."

Amar, the Yale law professor, said that the electoral college has a more sordid history. "It was intended to prop up the slavery system in the South. In a direct election, the North would overwhelm the South."

By counting slaves as three-fifths of a person, the Southern states, notably Virginia, dominated the presidency.

"It's no accident that for 32 of the first 36 years the presidency was occupied by a white, slave-holding Virginian," Amar said. For more than a decade, he has been criticizing the electoral college in articles and speeches.

California Gov. Gray Davis agreed Wednesday and predicted that the outcry over this year's split result will lead to the electoral college being abolished.

"If someone gets the most votes in America, he should be the president of the United States," Davis said. "That will take a change in the Constitution and it will take time, [but] this change is inevitable."

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Times staff writers Maura Dolan, Eric Lichtblau, Dan Morain, Paul Richter, Rone Tempest and Henry Weinstein contributed to this story.

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Focus on the Electoral College

Other close calls in electoral vote

A presidential candidate doesn't need to win the majority of popular votes to win the White House - only the most electoral votes. Here is a look at the margin of electoral-vote victory for the elected president since 1800. The shade of the bar indicates party affiliation.

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What's Next for Electoral College

The Electoral College results in a virtual winner-takes-all system. In almost every state, a candidate who wins the popular vote wins the state's entire slate of electors--equal to the state number of senators and House members. Here are the remaining steps in the electoral process this election:

1. On Dec. 18, the Electoral College's 538 members gather to cast their ballots, one for president, another for vice president. While there is no Constitutional provision or federal law binding electors to candidates, about half the states have laws requiring electors to vote as pledged. In California, a faithless elector can be fined $1,000 and sent to prison for up to 3 years.

2. Electoral votes are sealed and transmitted to the Senate and tallied at a joint session of Congress.

3. On Jan. 6, the sitting vice president reads the results before both houses of Congress.

4. If no candidate receives 270 votes, the House selects a winner from the top three vote-getters. Each state receives one vote.

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7 Times Electors Strayed

Despite the fuzzy legal situation, electorates are almost always faithful to their party and candidate. Prior to 1948, there were instances of vote switching in 1796 and 1820. Since then there have been seven occurrences:

1948 - Harry Truman elector casts vote for Dixiecrat Strom Thurmond

1956 - Adlai Stevenson elector votes for a local judge, Walter Jones

1960 - Republican Richard Nixon loses an elector to Democratic Senator Harry Byrd

1968 - Nixon elector votes for independent candidate George Wallace

1972 - yet another Nixon defection: to John Hospers, the Libertarian Party candidate

1976 - elector abandons Gerald Ford for former Governor Ronald Reagan

1988 - Michael Dukakis elector casts vote for Dukakis' running mate, Lloyd Bentsen

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Compiled by JOHN TYRRELL / Los Angeles Times

Sources: Associated Press; The World Almanac and Book of Facts 2000; Congressional Quarterly, National Archives and Records Administration, various news & wire services

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