How Not to Choose a President

The effort by some California Republicans to alter the way the state’s electoral votes are distributed in presidential elections has been miraculously resurrected.

The proposal -- which would replace the winner-take-all system with an allocation of electoral votes by congressional districts -- had stalled last month in the wake of a strangely surreptitious financial contribution to the cause from a Rudy Giuliani backer. The proposal had also faced a ferocious assault from Democrats (especially Clintonians) who fought it with money, focus groups, radio ads and red-hot rhetoric, insisting that the proposed reform was nothing but a “power grab” by Republicans, a dangerous and blatant ploy designed to rig an election through procedural trickery.

Presidential politics: The headline on an article by Alexander Keyssar in the Oct. 28 Opinion section suggested that the author supports divvying up electoral votes by congressional districts. He supports the idea of a national popular election that would eliminate the electoral college altogether.

But now it’s back. Last week, a new group of experienced organizers said not only was it reviving the initiative but it would spend “whatever it takes” to get the proposal onto the June ballot. Democrats began crying foul again, worried that Republican electoral votes from California in the 2008 election could go from zero (under the winner-take-all system in this majority Democratic state) to as many as 19 (the number of districts that have elected GOP members of Congress).

But this partisan battle for short-term advantage between Democrats and Republicans in California ought not obscure the larger truth: The strange method of electing presidents under which we currently operate needs to be fixed. The way the system works is, in fact, subject to partisan manipulation that could be decisive in a close election. Right now, any state legislature could legally decide to apportion its state’s electoral votes in almost any way it wants -- “winner take all” (the system currently used in most states), or by district (as happens in Maine and Nebraska), or in some other as-yet-undetermined fashion. In late November 2000, for instance, Florida’s Republican-controlled Legislature seriously considered ignoring the disputed popular vote altogether and choosing electors by itself.

A bit of history suggests that this should not surprise us. The winner-take-all system of allocating electoral votes -- which we now accept as normal and which awards all of a state’s electoral votes to the candidate who wins a majority of the popular vote in the state -- was itself the product of partisan maneuvers, put into place by politicians of different parties, including our revered founding father and democratic hero, Thomas Jefferson.

The Constitution drafted in Philadelphia in 1787 said (and says) nothing about how a state should choose its electors or apportion electoral votes. It leaves that decision to the legislature of each state. Not surprisingly, when political leaders were first trying to erect the institutions that the founding fathers had sketched on paper in Philadelphia, different states adopted different methods of choosing presidential electors. In some, the legislatures appointed electors by themselves (without holding any popular election); others developed a winner-take-all system in which they held “general ticket” elections, granting the winning candidate all of the state’s electoral votes; still others allocated the electors by district. Numerous states changed systems from one election to the next.

The most progressive political thinking of the era favored the district plan -- because it would most closely link the preferences of voters to the selection of electors. As Jefferson observed, “All agree that an election by districts would be best, if it could be general.”

Yet Jefferson proved more than willing to let partisan advantage trump what “would be best.” As the 1800 election approached, his Republican supporters in Virginia, mindful that their opponents in the Federalist Party had won five of the state’s electoral votes in 1796, replaced the district system with “winner take all” -- thereby guaranteeing Jefferson all of Virginia’s electoral votes. (Massachusetts, the home of Jefferson’s rival, John Adams, retaliated by entrusting the selection of electors to the Federalist-dominated legislature.) A few years later, Jefferson, as president, backed away from supporting a constitutional amendment mandating a district system throughout the nation -- a strategy that would have eliminated the potential unfairness of having a district approach in some states and the winner-take-all system in others -- because “winner take all” appeared to be benefiting his party.

Indeed, “winner take all” became, and endured as, the primary method of choosing electors precisely because of partisan dynamics. Regardless of the broader democratic principles at stake, dominant parties in nearly all individual states had embraced the short-run advantages of “winner take all” by 1830; since then, few states have had an appetite for dividing up their electoral votes while everyone else was using “winner take all” -- in part because doing so would appear to lessen the state’s clout in national politics. (Democrats in Michigan made the change in the 1890s and were severely punished for their pains after Republicans regained control of the state legislature.)

National efforts to impose a district plan (or a similar system that would allocate electoral votes in proportion to the distribution of the popular vote within a state) have occasionally garnered widespread support (several times winning passage through one branch of Congress), but, so far, partisan opponents of such a change have successfully prevented such a constitutional amendment from receiving the necessary two-thirds vote in both houses of Congress.

All of which has left us with a winner-take-all system that was never voted on or designed as a matter of national policy and has numerous intrinsic defects (such as transforming presidential elections into nonevents in the many states where candidates don’t bother to campaign because the outcome is not in doubt). We are also left with a constitutional framework that remains vulnerable to partisan machinations. That framework, created by men of the 18th century who could barely imagine mass political parties, permits the rules of the game to be changed in midstream by any one state or any collection of states. The largest states, of course, would be particularly inviting targets.

If the Republicans truly believe that it would be fairer and more democratic to choose electors by district, then instead of introducing such plans piecemeal in states where they would benefit, they should introduce a constitutional amendment to create a national district system -- one that would apply to Texas and South Carolina as well as California. And if the Democrats truly want to prevent procedural “power grabs,” they should sign on to such a proposal -- or offer a “proportional plan” or (better yet) actively back a national popular election that would eliminate the electoral college altogether.

If both parties worked together on such legislation, jointly committing themselves to remedy a design flaw in our Constitution, they might even succeed in dissipating a bit of the cynicism that the electorate so frequently expresses about political parties that seem far more interested in their own welfare than the fate of the nation.

Alexander Keyssar is a professor of history and social policy at Harvard University’s Kennedy School of Government.