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Electoral college reform and the 2000 presidential election

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Title:
Electoral college reform and the 2000 presidential election
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Fernelius, Melanie Lea
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English
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ix, 96 leaves : illustrations ; 28 cm

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Presidents -- Election -- United States ( lcsh )
Electoral college -- United States ( lcsh )
Electoral college ( fast )
Presidents -- Election ( fast )
United States ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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Bibliography:
Includes bibliographical references (leaves 94-96).
Statement of Responsibility:
by Melanie Lea Fernelius.

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University of Colorado Denver
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Auraria Library
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All applicable rights reserved by the source institution and holding location.
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50726579 ( OCLC )
ocm50726579
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LD1190.L64 2002m .F47 ( lcc )

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ELECTORAL COLLEGE REFORM AND THE 2000 PRESIDENTIAL ELECTION by Melanie Lea Femelius B.A., Brigham Young University, 1991 A thesis submitted to the University of Colorado at Denver in partial fulfillment of the requirements for the degree of Master of Arts Political Science 2002

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This thesis for the Master of Arts degree by Melanie Lea Femelius has been approved by Glenn Morris

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Femelius, Melanie Lea (M.A., Political Science) Electoral College Reform and the 2000 Presidential Election Thesis directed by Professor Thad Tecza ABSTRACT The topic of this thesis is Electoral College reform. In the year 2000, George W. Bush lost the popular vote, and won the electoral vote and the presidency. This thesis studies the effect ofthis election on Electoral College reform. The worst fear of the critics ofthe Electoral College came true, the ''wrong winner" was elected. Did a constitutional crisis ensue? Was President Bush seen as an illegitimate president by the American people? Did this situation cause significant change to take place in the Electoral College? This thesis will study Electoral College reform in the state legislatures and show that the 2000 presidential election caused an immediate increase in proposed reform, but that no significant reforms were passed, and the reform movement was unable to keep up its momentum to the following year. This thesis will also show that the majority of Americans found Bush to be a legitimate president, and a very small percentage of Americans felt the situation following the 2000 presidential election to cause a constitutional crisis. iii

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This thesis will argue that significant Electoral College reform did not take place following the 2000 presidential election for the following reasons; meaningful reform requires a constitutional amendment, there is a lack of consensus about what changes are needed, and the majority of Americans find George W Bush to be a legitimate president. This abstract accurately represents the content of the candidate's thesis. I recommend its publication. iv Tha T

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DEDICATION I dedicate this thesis to my husband, Joel Femelius, my mother Diane Glenn and my Professor Thad Tecza for all their support, help, understanding, and encouragement while I was writing this.

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CONTENTS Figures .................................................................................................. viii Tables ...................................................................................................... ix CHAPTER 1. INTRODUCTION .............................................................................. 1 2. lllSTORY OF THE ELECTORAL COLLEGE .................................. 4 Origins of the Electoral College ................................................... 4 How the Electoral College Works Today ..................................... 15 The Powers ofthe State Legislatures and the Role ofthe Elector ...................................................................... 16 Conclusion .................................................................................. 24 3. LITERATURE REVIEW ................................................................... 25 Arguments For and Against the Electoral College ....................... 25 Reform Proposals ........................................................................ 3 7 Proposed Constitutional Amendments ........................................ .43 Conclusion .................................................................................. 47 4. PRESENTATION OF DATA ............................................................ 50 Reforms Proposed in State Legislatures ....................................... SO 1999 Reforms .................................................................. 51 2000 Reforms ...................................................... ........... 52 vi

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2001 Reforms .................................................................. 53 2002 Reforms .................................................................. 59 Summary ofReforms ................................................... ... 61 Polling Data ................................................................................ 61 Will the American Public Accept George W. Bush as a Legitimate President? ...................................................... 63 Did the 2000 Presidential Election Result in a Constitutional Crisis? ....................................................... 68 Have Americans Lost Confidence in the Electoral System? ............................................................ 70 Has the Uncertainty Gone on Long Enough? .................... 74 5. ANALYSIS AND CONCLUSIONS .................................................. 78 Analysis ofReforms Presented in the State Legislatures .............. 78 The Reaction of the American Public to the 2000 Presidential Elections .................................................................. 86 Why Hasn't Meaningful Reform Taken Place? ............................ 91 WORKS CITED .............................. .................................................................. 94 vii

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FIGURES Figure 4.1 If George W. Bush is declared the winner, would you accept him as the legitimate president or not? ................................................................ 65 4.2 Now that George W. Bush has been declared the winner, will you accept him as the legitimate president or not? .............................................. 66 4.3 Do you accept President Bush as a legitimate president? ............................. 67 4.4 Which of these statements do you think best describes the situation that occurred as a result of the 2000 presidential election last year? .................... 69 4.5 How much confidence do you have in the system in which votes are cast and counted in this country? ................................................................. 72 4.6 Do you think the system in which votes are cast and counted in this country is in need of reform? ....................... ; ............................................... 73 4. 7 Which would be worse, the candidate you support does not become president or the situation regarding the uncertainty of who won the presidency continues indefinitely? ............................................................... 75 4.8 Are you willing to wait a little while longer for a final resolution to the presidential election situation or has the situation gone on too long already? ............................ ........................................................ 77 viii

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TABLES Table 4.1 Proposed Electoral College Reform in State Legislatures, 1999 ................... 52 4.2 States Proposing Legislation to Switch from the WinnerTake-AU Method of Allocating Electoral Votes to the District Method, 2001 ............. 54 4.3 States Proposing Legislation to Bind Electors, 2001 .................................... 56 4.4 State Legislation Switching to Proportional Representation, 2001 ............... 57 4.5 State Legislation Regarding Preservation ofthe Electoral College, 2001 ..... 58 4.6 Electoral College Reform Legislation Proposed in 2002 .............................. 60 4.7 Legislation Carried Over from the Year 2001 .............................................. 62 4.8 Did the Situation Following the 2000 Presidential Election Cause a Constitutional Crisis? .................................................................................. 70 4.9 Which is Worse, Your Candidate does not Win, or the Situation Goes on Indefinitely? .................................................................................. 76 ix

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CHAPTER 1 INTRODUCTION The topic of this thesis is Electoral College Reform. I chose this topic because I was intrigued by the situation surrounding the 2000 presidential election and wanted to examine what kind of effect this situation would have on Electoral College reform. In 2000, George W. Bush lost the popular vote but won the electoral vote and became president of the United States. Bush's election provoked discussion of the Electoral College, and many articles written about it (Cohen and Jacobsen 2000, Judis 2001, Klinkner 2000, Rosenberg and Stefanakoss 2000, Schneider 2001, Stoner 2000, and Steel2000). The Electoral College has had its critics since its creation. There have been over 700 attempts to reform or abolish it (Wildavsky, Lavelle, and Schafer 2000). The American public has been in favor of changing the way we elect the president for over 60 years (Newport 5 Jan 2001). So, how has the Electoral College survived? Now that the critics' biggest fears have been realized, George W. Bush lost the popular vote but won the electoral vote and became president, what will happen? Will this situation help reformers to gather the support they need to make some changes? According to conventional wisdom, it seems that the outcome of the 2000 presidential election would cause widespread reform. The worst fears of critics of the

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Electoral College have been realized. What they have been warning us about for years has happened. Has widespread reform taken place? What types of reforms have been proposed? How many of these reforms have been implemented? Were more reforms introduced following the 2000 election than had been introduced in previous years? Have the reform movements been able to keep going strong or are they losing momentum? This thesis will establish that significant reform has not taken place. It will accomplish this by examining the following questions: Did the 2000 election situation cause an increase in proposed reform? If there was an increase, did this increase keep its momentum from 2001 to 2002? Did enough proposals pass to produce lasting reform? Did the reform proposals that passed truly change the Electoral College, or were they merely procedural? Second, critics ofthe Electoral-College argued that if the popular-vote winner lost the election, this would cause a constitutional crisis and threaten the legitimacy of the American presidency. This thesis will argue that this has not happened by examining the following questions: Do the American people accept George W. Bush as a legitimate president? Have lost confidence in the electoral system? Would Americans rather have a presidential selection system that decides quickly or accurately? This thesis will conclude by analyzing why reform has not taken place. This thesis will argue that significant Electoral College reform has not occurred for two 2

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reasons: first, there are major obstacles to the passage of reform, the need for a constitutional amendment, and the lack of consensus about what reforms should be enacted. Second, the constitutional crisis predicted by reformers that would follow the election of the ''wrong winner" did not occur, and Americans accept George W. Bush as a legitimate president. The next chapter of this thesis will focus on a history of the Electoral College. It will examine the origins of the Electoral College, and the original ideas ofthe constitutional convention for selection of the executive. This chapter will also discuss the evolution ofthe Electoral College over the years, how it was altered by the 12th and 23rd amendments, and some of the elections scholars believe were problem elections. 3

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CHAPTER2 IllSTORY OF THE ELECTORAL COLLEGE This chapter will examine the origins and evolution ofthe Electoral College. It will begin with a description of the different plans presented for selection of the executive at the Constitutional Convention and the reasons why the Electoral College was chosen. Two Amendments concerning the Electoral College, the 12th and the 23rd, will be discussed along with some of the presidential elections that scholars identify as "problem" elections, including the results of the 2000 presidential election. A brief description of how the Electoral College works today will follow. The chapter will conclude with an explanation of the powers given to the state legislatures regarding presidential elections. The role of electors in the presidential selection system will be examined, including U.S. Supreme Court decisions that have influenced the evolution of the elector's role. Origins of the Electoral College ."This subject [selection ofthe executive] has greatly divided the House, and will also divide people out of doors. It is in truth the most difficult of all on which we have had to decide" (James Wilson, quoted by MacBride 1963, 13). The United States had a very weak and basically powerless executive under the Articles of Confederation. The Committee of the states was appointed by Congress, with one of 4

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their number chosen to preside1 (Jensen 1963). James Wilson presented a plan to the Constitutional Convention in June, where electors would be chosen from each of the states, and these electors would then elect the executive. His plan was a compromise between the two main proposals of the Convention, popular election, and election by the national legislature. The Convention rejected Wilson's plan at this time and approved election by the national legislature. Elbridge Gerry argued against selection by the legislature, saying that this would make the executive dependent on the legislature, it would "give birth to intrigue before the election", and it would cause the executive to be partial to his supporters following the election (MacBride 1963). Gerry believed that the executive should be selected by state executives, with their voting power having the same weight as their representation in Congress. Edmund Randolph argued that under this plan the small states would lose all hope of ever electing the executive. Randolph also believed tluit whoever was chosen as the executive wouldn't defend the rights of the national government against the states, and that state executives didn't have enough interaction with executives from other states (MacBride 1963). Gerry's plan was then defeated. In the middle of July, the two main options, election by the legislature or by the people were once again debated. Objections to election by the legislature 1 Article 9 of the Articles of Confederation authorized Congress to appoint a committee to sit in the recess of Congress, called the Committee ofthe States. This Committee consisted of one delegate from each state, with one member of the Committee chosen to preside ''provided that no person be allowed to serve in the office of president more than one year in any term of three years" (Jensen 1963, 268). 5

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included, the executive becoming a 'creature' ofthe legislature, the fear oflegislative usurpation and tyranny, and that although legislatures are trusted to perform many tasks, this task had been the most corruptly managed by them in the past (MacBride 1963). Popular election was opposed because it was believed that the public would never give a majority vote to one candidate, and that everyone would vote for someone from their own state, giving the largest states a big advantage. On July 17, the convention again voted to have the legislature choose the executive. Two days later, Madison argued that if a fundamental principle of :free government was to have the legislative, executive and judicial powers exercised separately, they must also be exercised independently, and that they inust keep the executive free from the legislatUre (MacBride 1963). He was in favor of popular election, but felt that the problem of suffrage in the South would keep this from being adopted2 Madison then proposed the method with the fewest objections, choosing electors to select the executive. The Convention then voted to. elect the executive with electors chosen by the state legislatures. On July 24, the Convention reversed its decision, and went back to election by the national legislature (MacBride 1963). 2 ''The right of suffrage was much more diffusive in the Northern than the Southern states, and the latter could have no influence in the election on the score ofthe Negroes" (Wihnerding 1964, 11). Popular election disadvantaged the Southern states because their slaves were not allowed to vote. Having people cast their votes through electors was seen as a solution to this problem. Each state would be given a number of votes for President proportional to the number of its inhabitants, and the votes would then be cast by electors chosen by the people. "The difficulty arising from the disproportiOn. of qualified voters in the several states would be obviated" (Wihnerding 1964, 12). 6

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Madison and Colonel Mason debated the different methods of selection for the next two days. Madison believed that "the election must be made by some existing national or state authority, by a special authority derived from the people, or by the people themselves" (MacBride 19). Election by a national authority would mean the national legislature, and the problems with this would be the election would influence the later actions of the executive, there would be intrigue between the candidates and the legislature, and foreign powers would do whatever they needed to get an executive chosen that would be favorable to their interests. State legislatures would choose a candidate who would let states encroach on national powers, and state executives would be subject to intrigue by candidates, friends and foreign powers. That leaves the two options of electors chosen as a special agency, or direct election by the people. Madison believed that electors who were "chosen for the occasion and meeting at once, would be little subject to cabal or corruption" (MacBride 1963, 19). Colonel Mason argued against election by the people calling it "an act which ought to be performed by those who know the most of eminent characters and qualifications ... not performed by those who know the least" (MacBride 1963, 19). The Convention again chose to have the legislature elect the executive. At the end of August, the Convention gave all the disputed parts of the including the selection of the executive to a Grand Committee of Eleven, which Roger Sherman headed. 7

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On September 4, the committee recommended that the president be elected by an Electoral College, where the states appointed the electors in a manner chosen by the state legislatures, which would be based on congressional apportionment, with the fmal selection by the Senate (which was not popularly elected at this time) if no majority was reached (MacBride 1963). On September 6, this proposal was adopted by the convention after more arguments and debates by a vote of9-2. The final selection of the president, in case no candidate received a majority ofvotes, was given to-the House ofRepresentatives, with each state getting one vote (Longley and Peirce 1999). This power was given to the House as a concession to those who wanted popular election, and because the Senate was already becoming and the Convention didn't want to give it more powers. Hamilton wrote the following about the Electoral College "ifthe manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages the union of which was to be wished for" (Chadwick 1987, 369). MacBride wrote "In its ability to analyze a situation, dispose of undesirable solutions, and select a compromise acceptable to nearly while violating none of the fundamental principles around which the new government was to be shaped, the Constitutional Convention has never been surpassed. And I think it is unquestionable that the establishment of the Electoral College was among the most brilliant of its achievements" (page 26). According to Longley, the Electoral College was approved because the convention was under intense pressure to reach an agreement, and since they were deadlocked on direct election or election by Congress, they invented a system that 8

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could be 'sold' (Longley and Peirce 1999). John Roche calls it a "jerry-rigged improvisation which has subsequently been endowed with a high theoretical content" (Longley and Peirce 1999, 21). He also argues that they weren't very worried about how the Electoral College would work at first, because everyone knew that George Washington would be the first president, so they could worry about fixing it later. Besides, it was also thought that most elections would be sent to the House for the fmal decision, so the Electoral College would mainly be responsible for nominating candidates, and the House would then select one for president from the top five candidates (Longley and Peirce 1999). Allowing the House to choose allowed for limited popular input in selection of the president. James Madison, however, saw the system as a great compromise, giving the smaller states the advantage when selecting a president from the candidates, and the larger states an advantage when selecting candidates from the people (Longley and Peirce 1999). According to Robert M. Hardaway, the Electoral College contains the best elements ofboth proposals (to elect the president by Congress and direct election by the people), for "on the one hand it insulated the executive from undue influence by the legislature, while on the other hand it promised to reflect the will of the people while still providing protection to the smaller states sufficient to induce their participation in the union" (Hardaway 1994, 14). Roger MacBride believes that after the first two elections, electors became tools of the agency that elected them. The function which presidential electors were 9

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originally supposed to perform was eliminated (MacBride 1963). Those who advocate direct election believe that the Electoral College should be abolished because the electors do not act the way the framers intended, wise men making a choice based on what they felt was best for the country, Hardaway argues that the specific role of the electors was not discussed at the convention, and that selection and role of the electors was left to the states (Hardaway 1994). Lucius Wilmerding Jr. writes that "the mode adopted was considered by the Founding Fathers an equivalent to an election by the people" and that electors ''were never meant to choose the President but only pronounce the votes of the people" (Wilmerding 1964, 171). According to John P. Feerick, "the system which emerged in practice is not the system contemplated by the founding fathers" (Longley and Peirce 1999, 23). The growth of political parties forever changed the way the Electoral College worked. National political parties began to promote and gain support for their own candidates, and then found electors who would pledge to support them (Longley and Peirce 1999). Electors.were no longer free to vote for the best candidate, and were not chosen for their wisdom, but for their party loyalty. As political parties took over the function, the Electoral College became the final point of selection (Longley and Peirce 1999). There have been two constitutional amendments to the Electoral College, the 12th and the 23rd. The 12th Amendment provides for a separate vote for the 10

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president and vice-president. Originally the candidate with the most votes was elected president and the one in second place was elected vice-president. Electors were supposed to vote for the two best men they could find, and so if the election ended in a tie, theoretically either one of the candidates would make a fine president (MacBride 1963). However, political parties began to present one candidate meant for president and one meant for vice-president. The elections of 1796 and 1800 brought to light the weaknesses of the double ballot system, as a it could produce a tie between the candidates for president and vice-president, elect a president and vice president from different political parties, or the losing party's electors could switch votes and elect the other party's vice-president as president (Abbott and Levine 1991). In 1796, Adams was elected as president and Jefferson was elected as vice-president, even though they were from different political parties. In the 1800 election, the electors for Jefferson and Burr cast an equal number of votes for each, throwing the election into the House, almost resulting in Burr (meant to be chosen as vice president) winning the presidency (Glennon 1992). The 12th Amendment was passed before the 1804 elections to deal with these problems. The 23rd Amendment was passed to give the District of Columbia the same number of electoral votes as the least populous state. The problems presented by the 1796 and 1800 presidential elections were solved by the 12th Amendment, but subsequent elections have resulted in further 11

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difficulties. The elections of 1824, 1876, 1888, 19603 and 2000, all resulted in the popular vote loser winning the presidency. In 1824 none ofthe candidates received a majority in the Electoral College so the election was thrown into the House of Representatives. Andrew Jackson was both the popular vote and electoral vote leader, but the Speaker ofthe House Henry Clay (who placed fourth in the electoral vote) lined up support for John Quincy Adams in the House and Adams won. Henry Clay was later made Adams' Secretary of State (Longley and Peirce 1999). The election of 1876 was fraught with corruption. The newspapers announced that Tilden won both the popular vote and the electoral vote, but the Republican Party disputed the electoral returns from four states and claimed that Hayes won by one electoral vote. An Electoral Commission was created by Congress to decide which votes were valid, consisting of seven Republicans, seven Democrats and one U.S. Supreme Court Justice (Longley and Peirce 1999). The decision of the commission was final unless rejected by both the House and the Senate. The commission was composed of eight Republicans (U.S. Supreme Court Justice Bradley was supposedly an independent-leaning Republican, however he joined the other seven Republicans 3 Scholars, however, differ on how the popular vote is tallied in this election because of Alabama's popular vote retwns. Alabama allowed voters to vote for its eleven electors individually and the Democrat's votes were divided between pledged and unpledged electors. The national wire services credited Kennedy with all of the unpledged votes, giving him a popular vote majority. However Congressional Quarterly developed a method to take the highest vote for any Democrat elector in Alabama, 324,050 and divide it between Kennedy and the unpledged electors, with Kennedy receiving 5/llths of the vote and the tmpledged electors 6/llths (Longley and Peirce 1999). When these results were added to the national popular vote total, Nixon received 58,181 more popular votes than Kennedy. 12

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in the vote) and seven Democrats, and Hayes won on a straight party vote (MacBride 1963). Objections to this vote by the Democrats were silenced by a deal made between Republicans and Southern Democrats to end Reconstruction in the South in return for their compliance with the electoral commission's decision (Longley and Peirce 1999). In 1888 Harrison was elected with 65 more electoral votes, while the loser Cleveland had 95,096 more popular votes (Longley and Peirce 1999, 28). In this election Harrison was able to receive more electoral votes (even though he lost the popular vote) because ofthe distortions inherent in the Electoral College due to the apportionment of electoral votes and the winner-take-all system of distributing votes in the states. It can be argued Utat this same thing happened again in 1960 with Nixon winning the popular vote by 58,181 votes and Kennedy winning the electoral vote by 84 more votes (Longley and Peirce 1999). There was also the issue of corruption in Illinois, but as Kennedy was the clear winner in the Electoral College, Nixon never pursued a recount. In 2000, George W. Bush won the vote in the Electoral College, and the Presidency, but lost the popular vote. Bush had 271 electoral votes to Gore's 267, while Gore had 50,158,094 popular votes to Bush's 49,820,518 (Cummings and Wise 2001). It was weeks after the election, however, before the country would find out who the winner would be because of problems with the vote count in the state of Florida. Immediately following the election hand recounts began in a few of 13

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Florida's counties, and there was a controversy over the design ofthe ballot used in Palm Beach county, where several people argued that they meant to vote for Gore but actually voted for Buchanan (Cummings and Wise 2001). On November 26, Katherine Harris, Florida's Secretary of State, certified the election results and declared Bush the winner by 537 votes. Not included in the fmal tally were votes from Miami-Dade county, which had stopped the recount because officials wouldn't be able to finish on time, and a partial tally from Palm Beach county that was rejected by Harris (Cummings and Wise 2001): On November 27, Gore filed a suit in Tallahassee Florida contesting the vote counts in Miami-Dade, Palm Beach and Nassau counties, which the state court rejected, so Gore's lawyers appealed to the Florida Supreme Court. The higher court ruled for Gore, and ordered recounts of''undervotes--ballots on which machines had not registered a vote--in all 67 Florida counties" (Curi:Imings and Wise 2001, 353). The Comt also gave Gore back some of the disputed votes, lowering Bush's lead to 154. Bush appealed to the U.S. Supreme Court. On December 12, the U.S. Supreme Court, in the case Bush v. Gore 531 U.S. 98 (2000) reversed the ruling of the Florida Supreme Court and ruled for Bush. The Court said that "because there were no uniform standards for inspecting ballots in a statewide recount, it could not be done without violating the constitutional requirements 'of equal protection and due process' of law 'to protect the fundamental right of each voter' in Florida" (Cummings and Wise 2001, 354). 14

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Gore conceded the next night, and George W. Bush, the popular vote loser, became the next President of the United States. How the Electoral College Works Today The general election for president is held the first Tuesday in November. In this election, voters cast votes for their state's presidential electors. The Electoral College meets the first Monday after the second Wednesday in December. Electors meet together in their states, and usually cast their ballots for the candidates they are pledged to (Glennon 1992). There are 538 electors, each state receiving a number of electors equal to the number ofRepresentatives and Senators they have, and the District of Columbia receiving three electors (according to the 23rd Amendment). If a presidential and a vice-presidential candidate each receive a majority of electoral votes, 270, then they are elected. If no presidential candidate receives 270 votes, then the election is thrown into the House of Representatives. The House votes as state delegations for one of the top three candidates, with each delegation receiving one vote, and the District of Columbia receiving no votes. A candidate needs a majority, 26, to win. If no president is chosen by January 20, and a vice-president is elected, the vice-president acts as president until the House chooses a president. If no vice-president has been elected either, then the Speaker of the House acts as president until a president is elected (Glennon 1992). An election has not been thrown into the House since 1824, 15

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and the House Rules from 1825 are still in effect today. "These rules would be the governing precedent if the House should again be called upon to elect a president, though the House might alter the rules at any time" (Longley and Peirce 1999, 206). The rules call for balloting to start on January 6, which means the newly elected House would be selecting the president, and they would have only two weeks to make the decision to have a president by January 20, Inauguration day (Longley and Peirce 1999). If no vice-presidential candidate receives a majority of electoral votes, the Senate chooses from the top two candidates in the Electoral College. Each Senator gets one vote, and a candidate needs a majority, 51, to win. If the House chooses a president, but the Senate doesn't choose a vice-president by January 20, then according to the 25th Amendment, the vice-president is appointed by the president, and then approved by Congress. The Powers ofthe State Legislatures and the Role ofthe Elector The Constitution left the job of choosing electors to the state legislatures, and they have done this by three main methods. The first method is the legislative system, where the legislatures choose the electors, the second is the district system where electors are chosen by the people in Congressional districts, currently employed in the states of Maine and Nebraska, and the third method is the general ticket method, or winner-take-all, where all of the state's electoral votes are given to 16

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the candidate winning the most popular votes in the state. States switched from selection by the legislatures to statewide popular election after many years of experimenting (Hardaway 1994 ). During this time of experimentation, legislatures switched back and forth between the winner-take-all method and the district method depending on how much support the majority candidate had, and which method of election would get him the most electoral votes. As the legislative system came to be viewed as more and more corrupt by the general public, political party leaders thought they could keep their power more legitimate by using the 'democratic' winner-take-all system to choose electors, and this method became the dominant one used by the states (Glennon 1992). Party leaders have been wary of the district system, as it encourages minority and independent candidates to run. In 1992 Florida thought about .switching to the district system, but state political officials worried this change would cause them to receive less attention during the presidential campaign because their electoral vote could be split (Glennon 1992). Florida would not be able to deliver its entire slate of votes to one candidate, so candidates might not spend as much time there campaigning because they might have less to gain and less to lose. Supporters of the district system believe the opposite would occur, and candidates would be forced to campaign district by district across the state as each district would choose its own elector. In a close race, a candidate would need to concentrate on individual districts 17

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within the state, which could result in more attention for the state as a whole. Currently the winner-take-all system is used in forty-eight states. Article II Section 1 of the Constitution gives state legislatures the power to appoint Electors in a manner of their choosing. Forty-four states and the District of Columbia currently nominate their electors at state party conventions or in state political committees. Arizona uses primary elections to nominate electors, and the remaining states use a combination of methods (Longley and Peirce 1999). Most states have allowed their citizens to choose the electors in statewide elections for the last 170 years or so. The few exceptions are the South Carolina State Legislature, which chose its electors directly until 18604 ; Florida which did the same in 1868; and Colorado in 1876 (Edgar 1998, and Longley and Peirce 1999). However, state legislatures have the power under the Constitution to take back this job for themselves, or appoint any other agency or body they choose to select electors. In the U.S. Supreme Court case McPherson v. Blacker 146 U.S. 1 (1892), Michigan citizens challenged the right of the State Legislature to switch from the winner-take-all system back to the district system. The Court found the word "appoint" to mean 11the broadest power of determination to the legislatures ... The Court said the state legislatures have 'plenary power' over appointing electors, and could even refuse to 4 South Carolina's provisional Governor, Benjamin F. Perry, had several interviews with President Johnson, and came to an Wlderstanding as to how the President's policy concerning restoration of civil government to the Southern states should be applied to South Carolina. In these interviews it was agreed that South Carolina's state constitution would,provide for the popular election of presidential electors (Simkins and Woody, 1966). 18

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provide for appointment of any electors at all if they so chose" (Longley and Peirce 1999, 102). Representative Henry R. Storms ofNew York said in 1826, "that nothing in the Constitution prevented a state legislature from vesting the power to choose presidential electors 'in a board of bank directors-a turnpike commissioll--{)r a synagogue" (Longley and Peirce 1999, 1 03). The Court also recognized that if a state legislature decided to have its electors chosen by popular vote, citizens are protected by the 14th Amendment from having their vote denied. In 1826, Thomas Hart Benton ofMissouri said in a Senate Committee Report that "the founding fathers had intended electors to be men of 'superior discernment, virtue and information', who would select the president 'according to their own will' and without reference to the immediate wishes of the people" (Longley and Peirce 1999, 1 09). Benton. went on to say that the fact that the original intent for the function of the electors had failed was undisputed, and that it should have failed, "for such independence in the electors was wholly incompatible with the safety of the people. (It) was, in fact, a chimerical and iinpractical idea in any community" (Longley and Peirce 1999, 110). Longley says that the probable intent of the framers was that electors be wise, distinguished citizens, and that they have turned into political hacks and fat cats, chosen not for their wisdom but their party loyahy (Longley and Peirce 1999). In most states now, the names of electors are not even listed on the ballot. By 1980, thirty-eight states had gone to the short ballot, simply listing the presidential candidates' names, or writing in small letters above their 19

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names, 'electors for'. Most states require a voter to choose an entire slate of electors, but in Mississippi, Louisiana, and South Carolina, voters can pick among the electors on different slates, and are even allowed to write in names (Longley and Peirce 1999). The state of Ohio had a statute that made it almost impossible for a new party's candidates to place electors on the ballot, and prevented independent candidates from getting on the ballot at all. The two major political parties, however, were automatically placed on the ballot. These statutes were challenged in the case Williams Et. Al v. Rhodes, Governor of Ohio. Et. Al. 393 U.S. 23 (1968), as the parties denied a spot on the ballot claimed that their rights under the Equal Protection Clause of the 14th Amendment had been violated (Hardaway 1994). Ohio claimed that under Article II, section 1 of the Constitution, it had the right to keep minority and independent candidates off the ballot, and contended it had the right to put any restrictions it wanted on the selection of electors (Glennon 1992). The Court said that powers granted by the Constitution are subject to other constitutional limitations, and that these statutes burdened two rights, "first the right of individuals to associate for the advancement of political beliefs, and second, the right of qualified voters, regardless of their political persuasion, to cast their votes effectively" (Glennon 1992, 28). Although the Constitution does not give citizens the right to vote for electors (state legislatures have the power to determine how they are chosen), since Ohio had already decided electors would be chosen by a statewide vote, Ohio could not then place burdens on this right, by imposing these conditions (Glennon 1992). 20

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Article II Section 1 of the U.S. Constitution states that electors may not be U.S. Senators, or members ofthe House ofRepresentatives, nor can they hold an "Office of Trust or Profit under the United States". It is left to the states to decide whether an elector's appointment is valid. Pledges to vote for a certain candidate are required from electors in twenty-nine states and the District of Columbia (www.ncsl.org), and while requiring a pledge is constitutional, enforcing it is not. The issue of the faithless elector was addressed by the Supreme Court in the case Ray v. Blair 343 U.S. 214 (1952). The State of Alabama required candidates for elector to pledge to vote in the Electoral College for the nominee from the party they were representing. An elector was denied certification by a party as an electoral nominee because he refused to pledge himself to the party's candidate. The plaintiff argued that the Constitution doesn't limit how electors will vote, and that this requirement of a pledge infringes on an elector's rights. The Court found that the Constitution doesn't forbid an elector to pledge, and it also doesn't forbid a party to require a pledge. The Court distinguishes between the right of an elector, after they are chosen to vote as they wish, and the right of a party to require a pledge before choosing an elector. Some states leave it up to the party to require a pledge, but some states have made it a crime to violate a pledge. Constitutionally a pledge can't be enforced, and a vote can't be changed, but an elector might be subject to punishment after casting a vote (Hardaway 1994). Michael Glennon suggests that a possible fix for the problem of the faithless elector would be to allow a state official (like the Secretary of 21

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State) to review the votes of the electors, and send in to the president of the Senate only votes that are made in accordance with state law. The state could pass a law saying that faithless votes are null and void (Glennon 1992). The Constitution is not completely clear on who has the final authority to regulate the casting of electoral votes. States have broad discretion in choosing electors, but Congress is required only to count votes that are regularly given. It is the state governors' duty to certify the electoral votes from their states, and also to certify that if a dispute has taken place, it was resolved according to state procedure, according to Section 6 of Title 3 ofU.S. Code (Hardaway 1994). The earliest version ofthese provisions, the Electoral Count Act, was written after the 1876 election, between Tilden and Hayes. Four states submitted two sets of returns, and Congress had to appoint a commission to decide which returns would be certified, and this fact ended up changing the outcome ofthe election. After this disaster, Congress passed a law giving this task to the states. The states are supposed to establish their own procedures to settle these matters, after which the resolution is certified by the state governor, who sends the results to the president of the Senate, who then accepts what the governor certified (Section 6 of Title 3 ofU.S. Code). One of the problems with leaving the certification of votes to the states is the wording of the statute, which could allow Congress some leeway in accepting votes. The statute says "(N)o electoral votes, or votes from any state which shall have been regularly given by electors whose appointment has been lawfully certified to 22

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according to Section 6 of this title from which but one return has been received shall be rejected" (Hardaway 1994, 52). Congress is required to accept votes that are 'regularly given', which could be interpreted to mean that it could reject votes if an elector's vote is not consistent with Constitutional requirements (Hardaway 1994). In 1969, Congress was faced with the problem of a faithless elector, and the possibility of rejecting his vote because it.was not regularly given. Dr. Lloyd Bailey, from North Carolina, was an elector appointed for Nixon (who was the popular vote winner), but he cast his vote for Wallace instead. Some members of Congress objected, and argued that Dr. Bailey's vote shouldn't be counted because it wasn't regularly given, since he represented himself to the people as voting for Nixon, but then changed his vote to Wallace. Opponents to the objection argued that the "Constitution imposes no restrictions on an elector's vote" (Hardaway 1994, 53) so Congress has no right to reject this elector's vote. In the end the objection was rejected, and the vote was counted for Wallace. Robert Hardaway says that "throughout the debate in bOth houses, there was general dismay about the possibility of electors casting unexpected votes; there was also a feeling, however, that after-the fact congressional challenges were not the appropriate mechanism for eliminating this evil" (Hardaway 1994, 125). If certifying ofvotes is left to the states, then the states need to have procedures in place, and these procedures need to be sufficient to take care of disputes before they arise. 23

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Congress counts the votes, and may reject votes not regularly given (provided that both Houses vote to reject the vote), but what if Congress finds a vote not regularly given but given in accordance with what is prescribed by the state legislature (Glennon 1992)? If a vote is cast by a faithless elector, will Congress encourage this practice by counting the vote? What department of government should be responsible for dealing with faithless electors, Congress or state legislatures--or no one, because it is within the bounds of the Constitution for an elector to cast a faithless vote? Conclusion According to James Madison, the Electoral College was a great compromise between the small states and the large states (Longley and Peirce 1999). Alexander Hamilton believed that if the system was not perfect, it was "at least excellent" (Chadwick 1987, 369). The Electoral College has been amended twice, once to provide for separate election of the president and the vice-president, and then to give the District of Columbia electors. There have been a few problem elections, but even with these problems, a president was chosen, and power was transferred from one administration to the next. The next chapter, the Literature Review, will discuss arguments for and against the Electoral College, and the benefits and costs of reform proposals found in the literature. 24

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CHAPTER3 LITERATURE REVIEW There are many books and articles written about the Electoral College and Electoral College reform. This literature review will be divided into two sections. The first section will discuss the arguments for and against Electoral Co liege reform. The second section will focus on the main reform proposals. Included in this section will be a summary of recent constitutional amendments proposed by the U.S. Congress either to reform or abolish the Electoral College, all of which have failed. Arguments for and Against the Electoral College Robert D. Brown, a supporter of the Electoral College, believes that it combines the two most important themes in the Constitution, "the balancing of state and national concerns and the safeguarding of minority rights within a framework of majority rule" (Rose, 213). Brown argues that not many people would say that the constitution is undemocratic, and the Electoral College follows the spirit ofthis document consistently. Brown agrees that a faithless elector who cast his vote against the will of the people would be undemocratic, and suggests that a law or amendment could be passed that would bind electors' votes to the popular votes, or to allow Congress not to count votes that were made contrary to the people's will. He also 25

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points out that out of the thousands of electoral votes that have been cast only 17 have been cast by faithless electors and that none of these had a major impact on the election's outcomes (Rose 1994). James Madison believed that electors serve an important purpose, and that they should be free to choose whom to vote for (MacBride 1963). According to Madison, "one ad vantage of electors is, that altho' generally the mere mouths of their Constituents, they may be intentionally left sometimes to their own judgement, guided by further information that may be acquired by them: and fmally, what is of material importance, they will be able, when ascertaining, which may not be till a late hour, that the first choice of their constituents is utterly hopeless, to substitute in the electoral vote the name known to be their second choice" (MacBride 1963, 56-57). Lucius Wilmerding said that under our present arrangement this may not seem significant, however, there have been cases where this exact situation has taken place. In 1824, the electors in North Carolina were pledged to both Jackson and Adams and were instructed to vote for whichever candidate had the best chance. In 1912, Roosevelt's electors stated before the election that if Roosevelt did not have a chance for success, they would instead vote for Taft (Wilmerding 1958). Wilmerding also argues that if states switched from the winner-take-all method of distributing electoral votes to the district method or proportional representation of allocating electoral votes, there might be elections in which the majority of the voters are in opposition to 26

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a plurality candidate5 (Wilmerding 1958). A second reason Wilmerding believes electors should be kept is that they link the president and vice-president together so we won't end up with a president and vice-president from different political parties. In his book When No Majority Rules. Michael Glennon lists the benefits and costs of the winner-take-all system. The benefits include decreasing the tendency of the political system to ignore the interests of minorities, magnifying the margin of victory for the new president, and strengthening the two-party system by penalizing new candidates with short-term staying power (Glennon 1992). According to Glennon, the costs of the winner-take-all method include exaggerating the power of special interests, creating the possibility of the popular vote winner losing, and by safeguarding the two-party favoring stability over political innovation and change (Glennon 1992). Brown agrees that the winner-take-all system is biased towards the larger states, but argues that the constant two electoral votes given to each state help to balance this bias out (Rose 1994). Candidates who can win in the seven most populous states, can get within 60 votes of the 270 needed to win, but these states also s The reform plan instant nmoff voting is another possible solution for this situation. Under instant runoff voting, voters are able to vote for as many candidates as they want, ranking the candidates in order of their preference. If a candidate wins a majority of votes, the election is over and they are declared the winner. If no one wins a majority, the last-place candidate is eliminated, and the second place choice for these ballots is counted. This continues until a candidate wins the majority. This process ensures that the candidate who wins will be preferred by most of the voters, and it stops minor party candidates from becoming "spoilers" (www.fairvote.org). The obstacle to this reform is that it will require the support of both of the major parties to become implemented (USA Today Feb. 5, 2000). 27

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contain 45% of the and that is why they have so many electoral votes. According to the large states are where the presidential contests are the most competitive, and the pop11lations are the most diverse, requiring candidates to build broad-based coalitions, which are a good thing. As for the possibility of the popular vote winner not Winning the Brown argues that the chances of this happening are small (at the time he wrote his article it hadn't happened since 1888). The likelihood of the popular vote winner losing drops when .there are only two candidates in the race, and this situation is encouraged by the Electoral College. Brown feels that the Electoral College looks great when compared to its biggest contender for reform, the direct election with a runoff. The "Electoral College is in fact quite underappreciated, and is a very important component of the smooth functioning of democracy as outlined in the constitution" (Rose 217). The Electoral College encourages candidates to develop broad-based coalitions, it reduces the uncertainty that surrounds close elections by magnifying the margin of presidential victory, and it may be one of the main reasons that the transfer of power from one administration to the next goes so smoothly in the U.S. (Rose 1994). Lawrence D. Longley argues that the Electoral College has five main flaws, the faithless elector, the winner-take-all system, the constant two electoral votes, the popular vote winner losing, and the House contingency electiop. Presently twenty nine states and the District of Columbia have laws that attempt to deal with the problem of the faithless elector by requiring pledges (www.ncsl.org), but 28

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constitutionally electors can not be held to these pledges (Longley and Peirce 1999 and Hardaway 1994). Electors are not the wise and prominent men that the founding fathers assumed they would be, but they are political hacks chosen for their party loyalty. The fact that they are chosen based on their loyalty to the party should help to ensure that they will cast their votes for the party, but there is a degree of uncertainty here. Henry Cabot Lodge said in 1949 that electors "are mere rubber stamps and inaccurate rubber stamps at that. Such go-betweens are like the appendix in the human body. While it does no good and ordinarily causes no trouble, it continually exposes the body to the danger of political peritonitis" (Longley and Peirce 11 0). Longley admits that faithless electors have not been a major problem so far, but they could be in a close election that comes down to one or two electoral votes, and there is also the possibility that an elector could threaten to withhold his vote for a particular cause or for publicity. The second flaw is the winner-take-all system that 48 states use to award their electoral votes. This system magnifies the voting power of the largest states, which in turn causes candidates to focus their campaigns in these states. In the 1990's the ten largest states had 257 ofthe needed 270 votes (Rose 206). This also gives state and political leaders from these large states more influence, and magnifies the influence of third parties if they can gather enough support throughout a region of the country. The third flaw according to Longley is the constant two electoral votes awarded to all states based on their representation in the Senate, because these votes distort the 29

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popular vote. Small states are overrepresented by the constant two electoral votes because an electoral vote in a smaJI state represents a smaller number of people than an electoral vote iri a large state does. According to the 1990 Census, one electoral vote in Wyoming is equal to 151,196 people, while one electoral vote in California is equal to 551,112 people (Longley and Peirce 137). The biggest flaw is the uncertainty of the popular vote winner winning the Electoral College. Longley believes that the effect upon the legitimacy of a president who won but lost the popular vote would be disastrous (Longley and Peirce 1999). The U.S; now has the opportunity to test this theory as George W. Bush won in the Electoral College in the 2000 presidential elections, and was elected president, even though he lost the popular vote. The final flaw lies with the contingency procedure whereby the House decides a deadlock in the Electoral College with each state delegation receiving one vote. This procedure disenfranchises the District of Columbia, one vote per state is very disproportionate as the election could be decided by one or two representatives, either from a small state like Wyoming, or one of the larger states like California, and the choice of the President by Congress would make him subject to it (Longley and Peirce 1999). Longley calls the Electoral College a "distorted counting device for turning popular votes into electoral votes" (Rose 211 ), and believes that it threatens the certainty ofU.S. elections and the legitimacy of the American presidency. He also believes that the problems with the Electoral College cannot be dealt with by a 30

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few reforms, but that it must be abolished, and replaced with direct election. A major problem with this reform is that the Electoral College can only be abolished with a constitutional amendment, and any proposed amendment could be blocked by only thirteen states. In his book The Electoral College Primer 2000, Longley examines several of our past presidential elections, and uses his data to show how close the Electoral College was to a misfire (electing the 'wrong' president), or how the shifts of a few thousand votes in a few states could have produced a misfire. He claims that the Electoral College allows irrational chance factors to decide elections, that it allows splinter parties potentially decisive roles in our elections, and that allowing individual states to decide how electors are chosen makes it hard to get accurate national popular vote totals. He also argues that the Electoral College treats voters and political leaders unequally, as "those in large marginal states are vigorously courted", while those is small or already decided states are ignored (Longley and Peirce 71). Longley does not like the fact that popular votes are unequal to electoral votes because of the winner-take-all system, and the fact that states are given electoral votes based on national apportionment, not on how many people from the state vote, rewarding states that have a low voter turnout. Longley argues that "since each state has a set number of electoral votes, the actual vote total in a state has no relevance to its electoral votes. The electoral votes of a state will all be determined, whether one person or all eligible persons go to the polls" (Longley and Peirce 138). Majority party leaders would not 31

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have any incentive to encourage people who haven't voted in the past to start voting. New voters could vote for a different party, and with more people voting, each electoral vote counts less for each person. Also an increased voter turnout would not increase a state's influence in an election because it wouldn't get the state any more electoral votes. Critics of the Electoral College argue that it is biased towards different types of states and different groups and organizations, and also that the relative voting power of individuals varies according to in which state they cast their vote. In measuring the relative voting power of citizens in one state, as opposed to citizens from the other states, Lawrence Longley and James Dana Jr., found that residents of the smallest states have a slight advantage because of the constant two votes allotted each state, but that residents of the largest states have a greater advantage because of the winner-take-all system of awarding electoral votes (Longley and Peirce 1999). Longley studied voting power by region, and found the Far West (mainly California) to have a great advantage, while the East's advantage has steadily declined over the past few decades. The South, the Midwest, and especially the Mountain states are all disadvantaged by the Electoral College (Longley and Peirce 1999). Latino, urban, Jewish, and foreign-born voters have an advantage, while rural voters and blacks are disadvantaged. According to conventional wisdom, blacks are advantaged by the Electoral College, but Longley found that they are disadvantaged (although they are 32

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less disadvantaged than they used to be) because they mainly reside in the states that have a lower relative voting power6 than others (Longley and Peirce 1999). The Electoral College also either discriminates against, or in favor of, certain types of candidates, minor-party and independents. It allows a minor-party candidate that has a regional following, like George Wallace, the opportunity to have a great amount of influence over an election by giving them the ability to throw the election into the House of Representatives. The Electoral College allows minor-parties to be spoilers: they can't win the election, but they can take votes away from the leader and spoil the election for them (Abbott and Levine 1991 ). While the Electoral College increases the power of a minor-party candidate with regional support, it also decreases the ability of independent candidates to get elected because people believe that a vote for them is a wasted vote (Longley and Peirce 1999). Socialist leader Norman Thomas detested the Electoral College and called it "one of the chief barriers to success of minor parties" (Hardaway 19). Votes for minor parties erode as Election Day comes closer because people don't want to waste their vote on a candidate who will get no electoral votes. Ross Perot experienced this electoral 6 Relative voting power is a voter's chance of affecting the election of the president through his or her state's electoral votes. Lawrence D. Longley and James D. Dana Jr. used the following three steps to determine each states relative voting power: "1. A determination is made of the chance that each state has in a '51-person game' of casting the pivotal bloc of electoral votes in the Electoral College. 2. An evaluation is made of the proportion of voting combinations in which a given citizen can, by changing his or her vote, alter the way in which his or her state's electoral votes are cast 3. The results of the first step are combined with the results of the second to determine the chance that any voter has of affecting the election of the president through the medium of his or her state's electoral votes" (Longley and Peirce 1999, 150). Forty-five states have less than average voting power, and the six most populous states have greater than average voting power. 33

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phenomenon-"a gradual erosion ofhis popular support as Election Day drew nearer" in the 1990's (Hardaway 1994). Robert M. Hardaway, in his book The Electoral College and the Constitution, writes that "the Electoral College has functioned far more successfully than was ever envisioned by the constitutional framers, and has, over the past 1 00 years, consistently produced clear-cut winners" (page 5). He also calls the American system for electing the president "the envy ofthe world". Hardaway recognizes that there is unequal voting power in the Electoral College, but argues that this exists also in the Senate and in the constitutional amendment process, and asks the question why is it attacked only in the Electoral College? Critics ofthe Electoral College always seem to find some kind of theory or some statistical study to back up their arguments, but the fact of the matter is that the Electoral College almost always yields a clear result and this fact is due to the wisdom ofthe founding fathers (Hardaway 1994). According to several polls conducted by the Gallup Organization over the last sixty years, "Americans have historically favored changing the way presidents are elected" (Gallup Nov. 10, 2000), but the question remains how has it managed to stay intact? There have been some close calls, and reformers can't seem to agree on what reforms to push for. The ABA argues that the Electoral College is archaic, but Hardaway says that its oldness is the reason why its results are accepted unquestioningly by the American people _(this was written before the 2000 election) (Hardaway 1994). Martin Diamond says "a long standing Constitutional arrangement secures, by its 34

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very age, that habitual popular acceptance which is an indispensable ingredient in Constitutional legitimacy" (Hardaway 1994, 24). The Electoral College almost always produces a clear winner. In a close election, the exact popular-vote tally for the nation could take weeks or months (imagine what happened in Florida happening all over the country). However, most close popular elections yield a clear winner in the Electoral College, giving the loser no incentive for demanding recounts because it wouldn't change the vote in the Electoral College. Hardaway uses the example of the 1960 election, and claims that Nixon did not demand a recount in Illinois because he would still have lost in the Electoral College. In a direct election the loser in a close election would not be so quick to concede. Critics ofthe Electoral College argue that it gives the illusion of a mandate, but Hardaway asks if the illusion of a mandate is preferable to the lack of a mandate? By magnifying the election results and creating an illusion of a mandate, the electoral vote makes the president-elect seem more like the people's choice. He will be more likely to get the respect of those who supported the other candidate, and this gives the new president more presidential power, or in other words, more power to persuade (Abbott and Levine 1991). This increased power to persuade can give the new president more leverage to get his policies and programs passed, as "the president's success in winning enactment ofhis legislative program has usually depended more on his 'mandate' than it does on his party's strength in the national legislature" (Abbott and Levine 1991, 44). One of the problems with an exaggerated 35

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minority rights, magnifies the margin of victory for the president, and usually produces clear-cut winners (Hardaway 1994). Longley and Peirce (168) find the Electoral College to be archaic and full of biases, and claim that it is "not a neutral and fair means of electing the president" nor is it "a sure way of determining who shall be president" (Longley and Peirce 1999, 168). They believe that the only way to solve the problems of the Electoral College is to pass a constitutional amendment abolishing it and replace it with the system of direct election. The following section will elaborate on this reform plan, as well as other major reform plans found in the literature. Reform Proposals According to Robert Hardaway the proposal for direct election is the most threatening to the Electoral College because it is a simple plan that is easy for voters to understand, and the name 'direct popular election' sounds democratic (Hardaway 1994). Under this plan the Electoral College would be abolished, and a direct election would be held across the nation, and the candidate with the most votes over 40% would be the winner. Most of these plans include a provision for a runoff election if no one receives 40% ofthe vote. This plan is supported by Longley and Peirce, who urge the abolition ofthe Electoral College and believe that votes must be counted directly and equally (Longley and Peirce 1999). Direct election is the only reform proposal that deals with each of the five flaws Longley and Peirce believe the 37

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Electoral College to possess. They believe that direct election encourages two-party competition, as every vote cast in the states will count. Longley and Peirce also believe it will encourage voter turnout because a state's influence in the presidential elections will be determined by the number of people in the state that vote. Direct election would also preserve the separate and independent electoral base of the President and the Congress (Longley and Peirce 1999). Hardaway argues that direct election takes away the constitutional role of the states in electing the president, which would weaken state political parties and also lessen the influence of state and local issues in presidential campaigns (Hardaway 1994). The possibility of a runoff election encourages minority candidates, and a multi-party system. In a close direct election, each vote would be critical and demands for a national recount, which would prolong the uncertainty indefmitely, could be disastrous. Glennon argues that in the case of presidential selection it is more important to have a system that decides quickly, rather than accurately (Glennon 1992). Alexander Bickel writes that in close elections where there is a standoff, "all that is needed is a convenient device--any convenient device previously agreed upon-for letting one of the two men govern. That is all that is needed, and that is all that is possible" (Bickel1968, 31 ). Robert D. Brown argues that by switching to the direct election we would lose the magnifying and legitimizing tendencies of the Electoral College. Brown argues that direct election would make a minority president (one elected with less than a majority) the norm, that it would 38

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devastate the two-party system, which plays a major role in consensus building in our country, and that it would create an election process where divisiveness was rewarded (Rose 1994 ). The district system would use the existing congressional districts to each elect one elector, then the remaining two electors would be chosen statewide. This plan is currently used in Maine and Nebraska. Nebra5ka switched to this plan in the hopes of drawing more attention to its state during presidential campaigns, but so far it hasn't made a difference (Steel 2000). According to the literature, the opposite is true, because "so long as some states continue to cast a bloc electoral vote, it is unprofitable for the other ones not to" (Bickel 1968, 21 ). If a state switched to another method while other states remained with winner-take-all, it would reduce its influence because it wouldn't be able to deliver all of its electoral votes to one candidate. Supporters say the district method would reduce the chances of electing the 'wrong' president, and encourage presidential candidates to campaign in the states by district, so they won't simply ignore a state they believe the other candidate has already won. California State Representative Tony Strickland, who introduced AB 45 in his state which would switch California to the district method, said that this "would force presidential candidates to campaign beyond large population areas", and would give the "GOP and the Green Party an advantage they don't currently enjoy" (Squitieri 2000, 3). Glennon believes that this plan would encourage district-based, 39

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grass-roots campaigns and would help revive local party organizations (Glennon 1992). MacBride supports the district method and believes it would encourage the development of two parties in one-party states, decrease the occurrence of :fraud in states that are close, and reduce the influence of the larger states. MacBride feels that the "founding fathers regarded the Electoral College as a counterpart of the whole Congress" (MacBride 1963, 64), but to be a good counterpart it should be chosen like Congress, by districts. The best thingabout the district method according to MacBride would be the correspondence of political sympathy between the President and the Congress; He feels the district method of selection would eliminate the ideological conflict between the tWo branches of government (as they would each be elected in the same manner, one electoral vote per congressional district, like representatives are elected, and two electoral votes chosen at large as senators are) that is fostered by the winner-take-all method. Longley and Braun feel that changing the electoral base of the president to make it the counterpart of Congress is dangerous because it would weaken the separation of powers (Longley and Braun 1975). Gerrymandering could become a big problem in this system, and this plan would also encourage third-party and minority candidates to run as they might be able to win enough support in a district to win an electoral vote. A problem with states switching to this system is that when most of the states use the winner-take-all system, a state could lose its influence in the election by not being able to promise a 40

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candidate its entire slate ofvotes. So unless quite a few ofthe states started switching systems, it is unlikely that one state would switch on its own, especially a state with a lot of electoral votes. Also, Congress could not force the states to switch to this plan, it would take a constitutional amendment. Glennon suggests that perhaps Congress could offer rewards to states that comply with this plan in the form of grants to help carry out the election process (Glennon 1992). The proportional plan would allocate electoral votes to the states in the same way they are now, but electoral votes would be awarded by the states in the same proportion as the popular vote. This method would allow the electoral votes to accurately reflect the popular support for the candidates in each state. Electoral votes would be rounded off: and electors would be abolished. The proportional plan supports federalism as each state would still receive the constant two electoral votes awarded on the basis of Senate representation. Two-party competition would be encouraged in states as it would now be possible for a minority candidate to win an electoral vote, where under the winner-take-all plan all electoral votes went to the popular vote winner in the state (Longley and Braun 1975). The problems with this system are that it would encourage factionalism, and discourage compromise. It could also produce delays in close elections. The electoral vote would still not be equal to the popular vote because of the constant two electoral votes awarded to each state, so the popular vote winner could still lose in the Electoral College (Longley and Braun 1975). This proposal would encourage the development of a multi-party 41

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system (Hardaway 1994), and would very likely throw many elections into the House of Representatives. The automatic plan would keep the Electoral College as it is, but get rid of the electors, solving the problem of the faithless elector. Reformers argue that this would be worse than no reform at all, as it will permanently entrench the Electoral College as it is in our governmental system, ending their dreams of abolishing it. Longley and Braun argue that the major effect of the automatic plan would be to block other necessary electoral reforms (Longley and Braun 1975). Also some believe that this reform accomplishes too little to go to the trouble of going through the whole Amendment process, that a responsible reform package should take care of more than this (Hardaway 1994). The Task Force for the Twentieth Century Fund conducted an in-depth study of the Electoral College and came up with the bonus plan as its recommendation. The bonus plan basically left the Electoral College as is, but automatically awarded electoral votes to the popular vote winner in the state (solving the problem of the faithless elector). Then the plan awarded an extra 102 votes to the national popular vote winner, solving the problem of the 'wrong' candidate winning. Hardaway cQndemns this plan for solving the problem of the wrong winner, but replacing it with the problem of an uncertain outcome in the election. In a close popular vote election it could take weeks or months to determine the winner, while the country waits and perhaps goes through inauguration day without a new president. 42

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Proposed Constitutional Amendments Alexander Bickel and Roger MacBride analyze reform plans proposed as amendments to the U.S. Constitution by the U.S. Congress in the 1950's to the 1970's. There were proposals to abolish the Electoral College and replace it with direct election, or the federal system plan (a new plan created by Senators Dole and Eagleton). There were also amendments to reform the Electoral College with the district method, proportional representation, and a plan that would solve the problems of the faithless elector and the House contingency election, leaving the rest of the system intact. Although a few of the amendments managed to gain approval in one ofthe Houses of Congress, ultimately they all failed. In the 1970's, as direct election was being debated in Congress, Senators Joseph D. Tydings of Maryland and Robert P. Griffm of Michigan proposed eliminating the runoff provision (that often went along with direct election reforms) to reduce the incentive for minority candidates to enter the race (Bickel 1971 ). If no candidate received 40% of the vote, votes would be counted by the states, and the candidate with the most votes in the state would be given all the electoral votes allotted to that state. Ifthe candidate winning the popular vote is also the electoral vote winner, he or she is elected president. Ifthere is no winner, then one is chosen by a joint session of Congress between the two candidates with the most popular 43

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votes. The second stage of the process, which utilizes the Electoral College, is meant to deter minority and independent candidates. However, a minority candidate could run simply to keep a major candidate from gaining an electoral vote majority. In 1949, Representative Frederic Coudert Jr. and Mr. J. Harvie Williams introduced an amendment to have presidential electors chosen in the same manner as Senators and Representatives (H. J. Res. 11, 82nd Congress, 1st Session). Each state would elect two of its electors statewide, and the remaining electors would be chosen by each congressional district. Roger MacBride believes this to be the best plan because it would give the President and the Congress the same constituency and eliminate the ideological conflict between them (MacBride 1963). He also argues that the number of 'doubtful' electoral votes in the large states would be reduced, and therefore the influence of the large states would be reduced to a more equitable level. Criticisms ofthis amendment include the obliterating of state lines, and reduction of state power and influence, and the possibility for increased influence of third party and minority candidates (MacBride 1963). This plan was again introduced by Senator Karl Mundt of South Dakota, in the 1st Session of the 90th Congress (Bickel 1971). Representative Ed Gossett of Texas and Senator Henry Cabot Lodge of Massachusetts presented an amendment to allow voters to vote directly for the presidential candidate of their choice (S. J. Res. 84, 90th Congress, 1st Session). A state official would then send the president of the U.S. Senate a list of the vote totals 44

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for each candidate in their state. The exact proportion of each state's electoral vote would then be awarded to each candidate according to the popular vote (MacBride 1963). The candidate with the most electoral votes would win, even if no one had a majority. This proposal passed in the Senate on February 1, 1950, but failed in the House July 17, 1950 (MacBride 1963). This amendment would solve the problems ofthe faithless elector, and ofthe House contingency electimi, and would end the chance of the popular-vote winner losing the election. However, MacBride argues that "splinter parties thrive on plurality voting systems where there is no defined percentage of total votes required for election and no provision for run-off" (MacBride 1963, 55). This amendment would change our current method of selecting the president to proportional representation, which would encourage the development of a multi-party system Senators Thomas F. Eagleton ofMissouri and Robert Dole of Kansas came up with an elaborate reform called the Federal System Plail (S. J. Res. 181, 91 st Congress, 2nd Session). Under this plan a candidate would be elected if he or she wins a plurality of the total national popular vote, and a plurality either in more than 50% of the states and the District of Columbia, or a plurality in states that contain 50% ofthe voters in the election (Bickel1968). A good feature ofthis plan is that it requires that a candidate have his support dispersed throughout the country. The two different alternatives for the second half of the requirement for election keeps some of the advantage for the large states (win the states that contain 50% of the voters), and 45

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keeps some of the advantages for the smaller states (win 50% of the states, no matter how big they are) (Bickel 1968). If there were no winner under this plan, the election would resort to the Electoral College, operating as it presently does; however, there would be no electors, so the electoral votes would be awarded according to the popular vote in the states. If there were still no winner, the votes in each state that had gone to third parties would be divided between the two candidates who had the most popular votes, in proportion to their share of the vote in that state. "The EagletonDole proposal is nothing if not ingenious, indeed brilliant, and it retains many, though not all, ofthe benefits of the present system" (Bickel1968, 29). The main drawback ofthe system is its complexity, which would make it difficult to sell it to the public. This system would also award peoples' votes to a candidate that they did not vote for. The Katzenbach amendment, frrst introduced in 1966, and then later reintroduced by Senator Sam J. Ervin Jr., of North Carolina (S. J. Res. 191, 91 st Congress, 2nd Session), dealt with the problems of the faithless elector and the House contingency procedure for deciding a deadlock. This amendment proposed abolishing electors and automatically awarding the total electoral vote to the winner of each state, getting rid ofthe possiblity ofthe faithless elector. In the case of a deadlock, a joint session ofCongress would decide on the winner (Bickell968). A deadlock means that the coalition building that was supposed to take place before the election failed, and needs to be tried again. According to Alexander Bickel, 46

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"Congress sitting in joint session and reaching decisions by a majority ofthe individual votes of its members is the best available deliberative institution for this purpose at such a time" (Bickel1968, 34). The Katzenbach amendment takes care of two frequently criticized aspects ofthe Electoral College, but doesn't deal with the possibility of a wrong winner. Senator William B. Spong Jr. of Virginia added a provision onto the Katzenbach amendment to deal witli the possibility of a wrong winner, requiring that the candidate win the popular vote and the electoral vote to be elected, and if no winner were selected the choice would go to Congress. Congress could still elect the candidate who lost the popular vote, but at least the wrong winner would not be chosen by the Electoral This provision adds all the problems of direct election, close popular votes in the states, and the need for recounts across the nation, to the proposal (Bickel 1968). Conclusion There are many different opinions about whether or not the Electoral College is a good method for selecting the president. Those who support the Electoral College believe it balances the concerns of both the states and the nation, protects minority rights, and that it produces clear-cut winners. Critics of the Electoral College argue that it has several flaws, including the problem of the faithless elector, the winner-take-all system of allocating electoral votes, problems with the House 47

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contingency election, and the biggest flaw of all, the possibility ofthe ''wrong winner" winning the presidency. The major reform plans presented by critics are direct election, the district method, proportional representation, the automatic plan, and the bonus plan. Longley and Peirce argue that the only reform that addresses all the faults of the Electoral College is direct election. The biggest obstacle to this plan being implemented is that it would require a constitutional amendment, which is a difficult feat to accomplish, as only thirteen states are needed to block an amendment from passing. Most ofthe reform plans discussed in the literature have been proposed as constitutional amendments in the U.S. Congress. Amendments have been proposed that would replace the Electoral College with direct election, and the new federal system plan. Amendments have also been proposed to reform the Electoral College and change the allocation of electoral votes to the district method, and the proportional representation method. None of the amendments received the support needed to pass both Houses of Congress. According to critics ofthe Electoral College, its biggest flaw is the possibility of the popular-vote loser winning in the Electoral College and becoming president. Critics argue that this situation would weaken the legitimacy of the American presidency, and cause a constitutional crisis throughout the country. In the year 2000, George W. Bush won the presidency while losing the popular-vote. This thesis will examine what effect, if any, the 2000 election had on Electoral College reform. In the 48

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next chapter this thesis will describe the methods used to gather the information needed to perform this analysis. 49

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CHAPTER4 PRESENTATION OF DATA I have gathered data in two different areas, the first consisting of actual reforms proposed in state legislatures before and after the 2000 presidential elections in order to measure what effect, if any, the election had on Electoral College reform. The second area consists of public opinion polls conducted by the Gallup Organization, which will be used to determine whether or not the American public accepts George W. Bush, the popular-vote loser, as a legitimate president, to measure how the American public viewed the situation surrounding the 2000 presidential election, and to measure the level of confidence in the electoral system. Refonns Proposed in State Legislatures I have gathered information on legislation that has been proposed in state legislatures across the country concerning Electoral College reform. I utilized the website and database of the National Conference of State Legislatures to gather this information. I will present the reform legislation proposed in the two years previous to the 2000 presidential election, 1999, and 2000, and the two years following the election, 2001, and 2002, in an attempt to determine the effect of the 2000 presidential election on the Electoral College. The questions I want to examine with 50

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these data include: Did the number of reform proposals increase after the 2000 presidential election? What types of reforms were proposed? How many reforms passed? Did bills that passed result in meaningful reform? Has reform lost its momentum? 1999 Reforms In 1999, three states introduced legislation to reform the Electoral College, specifically the way electoral votes are awarded, Washington, New York, and Nebraska. Washington state introduced HB 1534, which would allocate Washington's electoral votes according to the proportiomil representation reform plan. New York introduced AB 5452/SB 458, which would change New York's system of awarding electoral votes to the district method. Nebraska, one of the states that currently award their electoral votes according to the district method, introduced LB 1179, which would switch the state back to awarding electoral votes in the winner-take-all method. None of the above legislation passed (see Table 4.1). In 1999 two states introduced legislation petitioning Congress to amend the U.S. Constitution and abolish the Electoral College. Pennsylvania introduced HR21, petitioning Congress to amend the U.S. Constitution to abolish the Electoral College, and switch the method of selecting the president and yice-president to direct election. Ohio introduced SCR 39, petitioning Congress to propose an amendment to the U.S. 51

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Constitution abolishing the Electoral College. Neither of these pieces oflegislation passed (see Table 4.1). Table 4.1 Proposed Electoral College Reform in State Legislatures, 1999 ( www.ncsl.org). State Bill Purpose of Legislation. Status Pennsylvania HR21 Memorializes Congress to amend the U.S. Failed Constitution to abolish the Electoral College and switch to direct election of the President and VicePresident Ohio SCR39 Petitions Congress to amend the U.S. Failed Constitution to eliminate the Electoral College Washington HB 1534 Changes from winner-take-all system of Failed awarding electoral votes to proportional representation New York AB 5452/ Changes from winner-take-all system of Failed SB458 awarding electoral votes to the district method Nebraska LB 1179 Changes from district method of awarding Failed electoral votes to the winner-take-all system 2000 Reforms In the year 2000 no Electoral College reform legislation was proposed in the state legislatures (www.ncsl.org). 52

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2001 Reforms In the year 2001, 38 states introduced a total of91 bills regarding Electoral College reform. Twenty-five states proposed legislation switching the method of allocating electoral votes from the winner-take-all method to the district method. Thirteen of these bills included a provision to bind electors to vote for the candidate they initially pledged to vote for, or in a few cases the candidate who wins the popular vote in the state. As of April2002, 24 ofthese bills failed, and 20 ofthe bills were carried over into the year 2002 (see Table 4.2). Nebraska, one of the two states currently using the diStrict method of allocating electoral votes, proposed a bill (LB 454) to switch back to the winner-take-all method, which was carried over to the year 2002. Prior to the year 2000, twenty-nine states and the District of Columbia have passed laws binding their electors to vote for the popular-vote winners from their states (www.ncslorg). In 2001, 16 states proposed 28 bills to bind electors either to the candidate who wins the popular vote, or the candidate they pledged to vote for (13 of the bills also included provisions for the state to switch from winner-take-all to the district method). As of April2002, 22 ofthese bills have failed, five ofthe bills have been carried over to the year 2002, and one bill, from Virginia, passed (see Table 4.3). Virginia's previous statute, .2-203, was advisory in nature, stipulating that electors were "expected" to vote for their party's candidate. In 2001 Virginia passed a new law (HB 1853) that states that electors are required to 53

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Table 4.2 States Proposing Legislation to Switch from the WinnerTake-All Method 0 f Allocating Electoral Votes to the District Method, 2001 (www.ncsl.org). State Bill Status Bill Includes Provision to Bind Electors California AB45 Carried Over No SB 137 Carried Over No Colorado SB 51 Failed No Connecticut HB 5124 Failed No Indiana HB 1119 Failed Yes HB 1251 Failed Yes HB 1734 Failed Yes Iowa SF 82 Failed Yes Louisiana SB407 Failed No Maryland HB577 Failed No Massachusetts SB344 Carried Over No Michigan HB4149 Carried Over No HB 4381 Carried Over No Minnesota HF70 Carried Over No SF 129 Carried Over No SF 18 Carried Over Yes Missouri HB228 Failed Yes HB681 Failed No HB867 Failed Yes Nevada SB 565 Failed No New Hampshire HB268 Failed No New Jersey A3047 Failed No New Mexico SB746 Failed No New York A4836 Carried Over No s 131 Carried Over No 8411 Carried Over No North Carolina HB33 Failed No SB70 Carried Over No Oklahoma SB668 Carried Over No Oregon HB 2529 Failed Yes HB 2650 Failed Yes Pennsylvania SB 606 Carried Over No Tennessee HB I Carried Over No SB 1853 Carried Over Yes Texas HB281 Failed Yes 54

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Table 4.2, cont. State Bill Status Bill Includes Provision to Bind Electors Texas, cont. HB526 Failed Yes HB639 Failed No SB 211 Failed Yes Virginia HB 2566 Failed No SB 1219 Failed No Washington HB 1143 Carried Over No SB 5007 Carried Over No SB 5034 Carried Over No Wisconsin AB 188 Carried Over No vote for their party's candidate (www.ncsl.org). South Carolina's bill, HB 3367, also made an attempt to change their current law binding electors to stipulate that their presidential electors have voted at the time they declare which candidate they will vote for. This attempt to make the state's law tougher failed. Three states, Alabama, Washington, and West Virginia, proposed legislation to switch from the winner-take-all method of allocating electoral votes to the proportional representation method. Washington's bill SB 5006 proposed switching to a proportional method of allocating electoral votes among the three parties receiving the most popular votes, with each of the parties receiving at least one electoral vote. The bills from Alabama and West Virginia failed, and the bills from Washington carried over into the year 2002 (see Table 4.4). 55

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T able 4.3 States Proposing Legislation to Bind Electors, 2001 (www.ncsl.org). State Bill Status Bill Includes Provision to Switch to District Method Arizona HB 2074 Failed No Idaho H346 Failed No Illinois HB397 Carried Over No SB6 Carried Over No Indiana HB 1119 Failed Yes HB 1251 Failed Yes HB 1734 Failed Yes SB278 Failed No SB 565 Failed No Iowa HF 165 Failed No SF251 Failed No SF 82 Failed Yes Minnesota SF 18 Failed Yes Missouri HB228 Failed Yes HB867 Failed Yes New Hampshire HB411 Failed No New York s 1030 Carried Over No Oregon HB 2529 Failed Yes HB 2650 Failed Yes Rhode Island SB 570 Failed No South Carolina HB 3367 Carried Over No Tennessee SB 1853 Failed Yes Texas HB 1852 Failed No HB281 Failed Yes HB526 Failed Yes SB211 Failed Yes Virginia HB 1853 Passed No West Virginia HB 2991 Carried Over No 56

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Table 4.4 State Legislation Switching to Proportional Representation, 2001 ( 1 ) www.ncs .org State Bill Status Alabama HB433 Failed Washington HB 1602 Carried Over SB 5006 Carried Over West Virginia SB 541 Failed Six states in 2001 proposed legislation to send a message to Congress asking it to preserve the Electoral College. The bills from Alaska, Idaho, South Dakota, and Virginia passed. The bills from South Carolina and Vermont were carried over to 2002. In the 2000 presidential election, Alaska, Idaho, South Carolina, South Dakota, and Virginia allocated their electoral votes to Bush, and Vermont gave its to Gore (see Table 4.5). Three states petitioned Congress to abolish the Electoral College and switch to direct election of the President and Vice-President. Connecticut's bill HJ 3 failed, and Ohio's HJR 14 and Wisconsin's AJR 14 were carried over to the year 2002. Michigan proposed HB 4652 to increase the penalty for a faithless elector, and this bill was carried over to 2002. North Carolina passed HB 32 into law, increasing the fine for faithless electors from $500 to $10,000. 57

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Table 4.5 State Legislation Regarding Preservation of the Electoral College, 2001 ( www.ncsl.org). State Bill Candidate Status Details of Bill Supported Alaska HJR23 Bush Passed Supports preservation of Electoral College Idaho lDM 1 Bush Passed Asks Congress not to amend U.S. Constitution to abolish Electoral College South HB Bush Carried Asks Congress not to amend Carolina 3779 Over U.S. Constitution to abolish Electoral College South SCR9 Bush Passed Supports preservation of Dakota Electoral College Vermont. HJR 17 Gore Carried Supports preservation of Over Electoral College Virginia HJ 651 Bush Passed Virginia's committed to principles of government reflected in design of Electoral College Vermont proposed a complex new plan for awarding electoral votes in its bill H 298. This process "allocates the state's three electors according to a formula awarding the first elector to the candidate that received the most votes, then subtracting 1/3 of the total votes cast for president from that candidate's total votes. The leading candidate's remaining total is then compared with the total for each of the other candidates, and the second electoral vote is awarded to the first remaining elector for the candidate that receives the most votes in that comparison. One-third of the total votes cast is then subtracted from the total remaining for the winner of the second electoral vote. This process is repeated for the awarding of the third electoral vote" (www.ncsl.org). This bill was carried over to 2002. 58

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There were eleven other states that proposed sixteen additional bills regarding procedures for selecting and certifying electors, filling elector vacancies, reimbursing electors, and settling disputes. Colorado passed HB 1274 to clarify that each elector will vote for the presidential and vice-presidential candidates by separate ballot as called for by Amendment XII of the U.S. Constitution. Idaho passed H 206, which clarifies that the names of presidential electors do not appear on the ballot, and that voting for one of the candidates constitutes a vote for that party's electors. Illinois passed HB 3145, changing the reimbursement of electors' expenses for voting in Springfield. North Carolina passed HB 31, which allows for a special session of the General Assembly to be called to -appoint the state's electors if the presidential electors have not been certified six days before they are to meet. Texas passed HJR 45, requiring the governor to call the Legislature into special session to appoint presidential electors if it seems that they will not be appointed before the deadline. Utah passed HB 231, requiring political parties to fill vacancies of presidential electors (www.ncsl.org). The above six bills passed, and the rest failed or were carried over to 2002. 2002 Reforms As of April 2002, seven states have introduced nine new bills regarding Electoral College refonn. Alabama proposed two bills, HB 80 and HB 82, to switch to the proportional representation method of allocating electoral votes. California 59

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(SB 1438), Missouri (HB 1860), and Virginia (HB 1323) all proposed bills advocating switching to the district method. California proposed HB 4130 regarding the selection and certification of electors, and Minnesota proposed HF 121 regarding the duties of electors. Indiana proposed SB 199, and Rhode Island proposed SB 2431, in an attempt to bind their electors (see Table 4.6). Virginia's bill HB 1323 failed, the remaining legislation proposed in 2002 is still pending. T able 4.6 Electoral College Reform Legislation Proposed in 2002 _(www.ncsl.oi"g). State Bill Description Alabama HB80 Proportional Rep_resentation HB82 Proportional ReJ!_resentation California SB 1438 Switch to District Method HB 4130 Selection and Certification of Electors Indiana SB 199 Binds Electors Minnesota HF 121 Duties of Electors Missouri HB 1860 Switch to District Method Rhode Island SB 2431 Binds Electors Virginia HB 1323 Switch to District Method Sixteen states have carried over bills from the year 2001 to the current (2002) legislative session. Eleven states have carried over 20 bills attempting to switch the method of allocating electoral votes from winner-take-all to the district method. Washington has carried over two bills proposing to switch from the winner-take-all method to proportional representation. West Virginia carried over one bill, and Illinois carried over two bills attempting to bind their electors. Nebraska carried over its bill to switch back to the winner-take-all system. Michigan's bill to raise the penalty for faithless electors, and Pennsylvania's bill regarding voting procedures 60

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were both carried over to 2002. Vermont carried over its bill proposing its new method for selection, and Vermont and South Carolina both carried over their bills expressing their desire to preserve the Electoral College. Wisconsin carried over its bill asking Congress to propose an amendment to abolish the Electoral College, and switch to direct election (see Table 4.7). The five bills from Washington, and the bill from West Virginia have all failed. The remaining bills are still pending (www.ncsl.org). Surnma.cy of Reforms 1999: 5 states proposed 6 bills, which all failed. 2000: No reforms were proposed. 2001: 3 8 states proposed 91 bills, 12 passed, and 79 failed or were carried over to the year 2002. 2002: Seven states proposed 9 new bills, and 16 states carried over bills to 2002. Polling Data To measure whether or not the American people accept George W. Bush as a legitimate president as well as their reaction to the results of the 2000 presidential election, I consulted several polls done by the Gallup Organization. The Gallup Organization conducted several surveys during the post-election period to gage the reaction of the public to the situation. Frank Newport, a writer for the Gallup 61

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Table 4.7 Legislation Carried Over from the Year 2001 (www.ncsl.org). State Bill Description California AB45 Switch to District Method SB 137 Switch to District Method Illinois HB397 Binds Electors SB6 Binds Electors Massachusetts SB344 Switch to District Method Michigan HB4149 Switch to District Method HB 4381 Switch to District Method HB 4652 Raise Faithless Elector Penalty Minnesota HF70 Switch to District Method SF 129 Switch to District Method SF 18 Switch to District Method Nebraska LB454 Switch to Winner-Take-All New York A4836 Switch to District Method s 131 Switch to District Method S411 Switch to District Method North Carolina SB 70 Switch to District Method Oklahoma SB668 Switch to District Method Pennsylvania HB917 Voting Procedmes SB606 Switch to District Method South Carolina HB 3367 Binds Electors HB 3779 Preserve Electoral College Tennessee HB 1 Switch to District Method SB 1853 Switch to District Method Vermont H298 New Method HJR 17 Preserve Electoral College Washington HB 1143 Switch to District Method SB 5007 Switch to District Method SB 5034 Switch to District Method HB 1602 Switch to Proportional Representation SB 5006 Switch to Proportional Representation West Virginia HB 2991 Bind Electors Wisconsin AB 188 Switch to District Method AJR 14 Direct Election 62

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Orgariization, says the following about the importance of public opinion polling at this time "There is unlikely to be another nationwide vote on the presidency or the issues involved in the current situation in the near future. Survey research, therefore, becomes the only mechanism by which, particularly in the short term, the views and opinions of the American public can be accurately assessed" (Newport Nov. 20, 2000). I have organized the results ofthe polls to examine the following four questions: Is Bush accepted as alegitimate president? Did the post-election situation cause a constitutional crisis? Have Americans lost confidence in the current electoral system? As the post-election situation continued without a resolution, would Americans prefer to wait as long as it takes to determine who would be the next president or had the uncertainty gone on long enough? Will the American Public Accept George W. Bush as. a Legitimate President? To determine whether or not the American people consider George W. Bush to be a legitimate president, I will use the results of three Gallup polls conducted in November 2000, just before he was declared the winner, December 2000, just after he was declared the winner, and July 2001, six months after he was inaugurated. On November 11-12, 2000, The Gallup Organization conducted a nationwide survey and asked American adults the following question: "If George W. Bush is declared the winner and is inaugurated next January, would you accept him as the 63

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legitimate president, or not?" (Newport Dec. 18, 2000). Nearly eight out often Americans, 79%, replied yes they would accept Bush as a legitimate president. Of the remaining respondents, 19% replied no they would not accept Bush as a legitimate president, and 2% replied they had no opinion (see Figure 4.1). On December 15-17, 2000, the Gallup Organization conducted a survey and asked American adults "Now that George W. Bush has been declared the winner and will be inaugurated next January, will you accept him as the legitimate president, or not?" (Newport Dec. 18, 2000). More than eight out of ten Americans, 83% responded yes they would accept Bush as a legitimate president. Of the remaining respondents, 16% responded no, they would not accept Bush, and 1% had no opinion (see Figure 4.2). On July 10-11, 2001, the Gallup Organization conducted a poll and asked Americans the following question: "Thinking about the circumstances surrounding last year's presidential election, which of the :following describes your view of whether President Bush is a legitimate president-! accept him as the legitimate president, I don't accept him as the legitimate president now, but might in the future, or I will never accept him as the legitimate president?" ( CarrolUuly 17, 2001 ). The results ofthe poll are as follows, 73% of Americans accepted Bush as a legitimate president, and 15% replied they don't accept Bush now but they might in the future. Eleven percent of the respondents replied they will never accept Bush as a legitimate president, and 1% had no opinion (see Figure 4.3). 64

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90% 80% 70% 60% Q\ 5Qo/o I VI 40% 30% 20% 10% I 0% Figure 4.1 If George W. Bush is declared the winner, would you accept him as the legitimate president or not? (Newport Dec. 18, 00) 'II! Yes, accept 11 No, not accept 1g No opinion ;i:/'::,.,;.:-, :: .. ;:/},,tfr.;, .. __ .... .... :: .; .. ._.::.:: .. 2% 12-Nov-00

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90% I 80% 70% 60% 0'1 50% 0'1 1-40% 30% 20% 10% I 0% Figure 4.2 Now that George W. Bush has been declared the winner, wil you accept him as the legitimate president or not? (NewportDec. 18, 00) 83% liiiil "' l'Jilml1:: IRo'li R A 11SYes, accept II No, not accept 111 No opinion 1% 17-Dec-00

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0'1 -...1 80% 70%-+-----60%-+-----50%;----400k -+-----30% +-----20%-+-----10%-1-----0%4------Figure 4.3 Do you accept President Bush as a legitimate president? (Carroll 2001) 73% 1% Juf-01 II Accept as legitimate a Don't accept but might in future II will never accept as legitimate BNoopinion

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Did the 2000 Presidential Election Result in a Constitutional Crisis? To determine whether or not the events that occurred following the 2000 presidential elections caused a constitutional crisis for America, the Gallup Organization asked American adults the following question: "Which of these statements do you think best describes the situation that occurred as a result of the 2000 presidential election last year-[Rotated: it was a constitutional crisis, it was a major problem for the country but was not a crisis, it was a minor problem for the country, (or) it was not a problem for the country at all]?" (Moore Nov. 6, 2001). In November 2000, 15% ofthose surveyed felt the situation resulted in a constitutional crisis, while in November 2001, only 7% ofthose surveyed felt the situation resulted in a constitutional crisis. In November 2000, 49% of those asked felt the situation resulted in a major problem, but not a crisis, while in November 2001, only 35% of those surveyed felt this way. The number of respondents who felt the situation was a minor problem was 25% in November 2000, and 42% in November 2001. Those who felt the situation was not a problem numbered 9% of respondents in November 2000, and 13% in November 2001. Two percent of those polled had no opinion in November 2000, and 3% in 2001 (see Figure 4.4). In November 2000, answers to this question were recalculated according to which candidate the respondent supported for president, Bush or Gore. Among the supporters ofBush, 14% felt the situation caused a constitutional crisis, while 17% of 68

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01 1.0 60% Figure 4.4 Which of these statements do you think best describes the situation that occurred as a result of the 2000 presidential election last year? (Moore Nov. 6, 01) 50% .... ,u 40% il 11 Constitutional crisis 3J 111 Major problem Minor problem B Not a problem No opinion I 20% 10% 0% Nov-00 Nov-01

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Gore supporters responded this way. Fifty percent of Bush supporters and 49% of those who supported Gore felt the situation caused a major problem for the country, but not a crisis. The number of adults surveyed who felt the situation resulted in a minor problem for, the country was 27% for Bush supporters and 23% for those who supported Gore. Among the Bush supporters 8% of those surveyed felt it was not a problem, and 1% had no opinion. Nine percent ofGore supporters felt the situation was not a problem, and 2% had no opinion (Newport Nov 20, 2000) (see Table 4.8). Table 4.8 Did the Situation Following the 2000 Presidential Election Cause a C 1 C ? (N N 20 2000) onsbtuttona nsts. ewport ov. Sample Constitutional Major Minor Nota No Crisis Problem Problem problem Opinion National 15% 49% 25% 9% 2% Adults Bush 14% 50% 27% 8% 1% Supporters Gore 17% 49% 23% 9% 2% Supporters Have Americans Lost Confidence in the Electoral System? Gallup conducted surveys in December 2000 and November 2001 questioning American adults about their confidence in the current electoral system and about how much reform the American public wants in the electoral system. The Gallup Organization surveyed American adults to gage their confidence in the electoral system in December 2000 and November 2001. Americans were asked: "How much confidence do you have in the system in which votes are cast and 70

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counted in this country-a great deal, quite a lot, some or very little?" (Moore Nov. 6, 2001). In December 2000, 15% of Americans responded they had a great deal of confidence in the system, while in November 2001,21% ofthose surveyed had a great deal of confidence. Fifteen percent of those polled had quite a lot of confidence in the system in December 2000, while 20% had quite a lot of confidence in November 2001. In December 2000,32% of those questioned had some confidence in the system, and in November 2001, this percentage remained the same. Thirty-five percent ofthose surveyed in December 2000 had very little confidence in the system, but this number went down to 25% in November 2001. In December 2000 2% of those asked volunteered that they had no confidence in the system, and I% of those surveyed volunteered this answer in November 2001. One percent ofthose polled had no opinion for both dates (see Figure 4.5). Gallup also questioned American adults about reform of the electoral system. Those surveyed were asked the following question: "Do you think the system in which votes are cast and counted in this country is in need of -[Rotated: a complete overhaul, major reforms, minor reforms, (or) no reforms]?" (Moore Nov. 6, 2001). In December 2000,28% of respondents felt a complete overhaul was needed, 39% were in favor of major reforms, 27% wanted minor reforms, 4% of those surveyed felt no reforms were needed, and 2% had no opinion (see Figure 4.6). Almost one year later, in November 2001, only 19% ofthose surveyed felt a complete overhaul was necessary, 24% were in favor of major reforms, and the percentage of Americans who 71

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....:I N Figure 4.5 How much confidence do you have in the system in which votes are cast and counted in this country? (Moore Nov. 6, 01) 40% 35% 35% 32% 30% +--------------25% 20%' -21% 20% .. 15% 10% 5% 1% 1% 1% 0% Dec-00 Nov-01 llil A great deal II Quite a lot II Some &Very little 8None No opinion

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50% 45% 40% 35% 30% ....J w 25% 20% 15% 10% 5% 0% Figure 4.6 Do you think the system in which votes are cast and counted in this country is in need of reform? (Moore Nov. 6, 01) 45% Dec-00 Nov-01 II Complete overhaul II Major reforms B Minor reforms BNo reforms No opinion

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wanted minor reforms grew to 45%. Nine percent of those polled felt no reforms were needed, and 3% ofthose asked had no opinion (see Figure 4.6). Has the Uncertainty Gone on Long Enough? Gallup conducted surveys on November 19,2000, November 26-27, 2000, and December 2-4, 2000, to determine how long Americans were willing to wait for a decision to be made about who would be the next president. On November 19, 2000, the Gallup Organization conducted a survey and asked American adults the following question: "In your opinion, which would be worse-the candidate you support does not become the president (or) the situation regarding the uncertainty of who won the presidency continues indefmitely?" (Newport November 20, 2000). Nineteen percent of those surveyed replied it would be worse if their candidate does not become president, while 73% replied it would be worse if the situation continued indefinitely. Eight percent had no opinion (see Figure 4.7). Among the Bush supporters, 20% felt it would be worse iftheir candidate did not become president, 73% felt it would be worse if the situation continued and 7% had no opinion. Twenty-two percent of Gore supporters replied it would be worse if their candidate did not win, 71% felt it would be worse if the situation continued indefmitely, and 7% had no opinion (see Table 4.9). 74

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Figure 4.7 Which would be worse, the candidate you support does not become president or the situation regarding the uncertainty of who won the presidency continues indefinitely? (Newport Nov. 20, 00) 80% 70% -r------------60% 50% 40%t-----------------------30% +--------------------------20% -w 10% -f----------0% -+-----------73% 19-Nov-00 II Candidate does not become president 1111 Situation continues indefinitely BNoopinlon

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Table 4.9 Which is Worse, Yom Candidate does not Win, or the Situation Goes on I ndefinitely? (Newport Nov. 20, 2000). Sample Candidate does not Situation continues No opinion become president indefinitely National Adults 19% 73% 8% Bush Supporters 20% 73% 7% Gore Supporters 22% 71% 7% In its smveys, the Gallup Organization asked the American public the same question on three separate occasions to measme changes in their attitudes as time passed. The question asked was as follows: "Which comes closer to yom view-[Rotated: you are willing to wait at least a little while longer for a final resolution to the presidential election situation (or}the presidential election situation has gone on too long already]?" (Moore Dec. 5, 2000). On November 19, 2000, 51% of those surveyed responded they would be willing to wait a little while longer, 48% felt the situation had gone on too long already, and 1% had no opinion (see Figme 4.8). When these results are broken down according to which candidate the respondent supported, 83% of Bush supporters replied that the situation had gone on too long already, while 17% of Gore supporters felt this way (Newport Nov. 20, 2000). On November 26-27, 2000, only 37% of Americans asked were willing to wait a little while longer, while 62% responded the situation had gone on too long already, and 1% had no opinion (see Figme 4.8). On December 2-4, 2000, 36% of Americans surveyed were willing to wait a little while longer, 63% felt the situation had gone on too long already, and 1% had no opinion (see Figure 4.8). 76

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-...1 -...1 Figure 4.8 Are you willing to wait a little while longer for a final resolution to the presidential election situation or has the situation gone on too long already? (Moore Dec. 5, 00) 70% 60% 63% 40% -+-Willing to wait -Gone on too long ........,_.No opinion 30%r------------------------------------------------------------------------------20%r---------------------------------------------------------------------------------10% r-----------------------------------------------------------------------------0% I .. 1% Hfl at.1% I 19-Nov-00 27-Nov-00 4-Dec-00

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CHAPTER5 ANALYSIS AND CONCLUSIONS This chapter will analyze the data presented in Chapter 4, and discuss why meaningful reform has not taken place in the Electoral College following the 2000 presidential elections. The first section will examine the reforms proposed in the state legislatures before and after the 2000 presidential elections to see whether the result of the election caused an increase in reform, how many proposed reforms have passed, and whether any of the reforms that passed resulted in significant change. The second section will examine the reaction of the American people to George W. Bush's winning the presidency but losing the popular vote, including whether or not Americans accept him as a legitimate president, whether or not they felt the election caused a constitutional crisis, and how much confidence Americans have in the electoral system. The third section will hypothesize and discuss the two major reasons why reform has not taken place. Analysis ofReforms Presented in the State Legislatures In the state legislatures there were a lot of reforms regarding the Electoral College proposed following the 2000 presidential elections. Prior to George W. Bush's losing the popular vote and winning the electoral vote and subsequently the 78

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presidency, there had been just a few bills proposed. According to the National Conference of State Legislatures, 6 bills were proposed in 1999 (all of which failed), and no bills were proposed in 2000. In the year 2001, 91 bills were introduced in 38 states regarding Electoral College reform. The reform proposed most often, switching to the district method from the winner-take-all method for allocating electoral votes, makes up nearly half of all proposed reforms, 44 out of91 bills. Supporters of this reform feel it should be passed because, they argue, switching to the district method would make the electoral vote more closely reflect the popular vote. Curtis Gans, director of the Committee for the Study of the American Electorate, believes that switching to the district method would make it "difficult for a candidate to win the Electoral College vote under this system without also winning the popular vote, and it would expand the campaign across the nation: Presidential hopefuls would have to focus on favorable or swing districts all over the country instead of just 16 or 17 states" (Steel2000, 3654 ). Another positive feature of this reform is that it doesn't require a constitutional amendment; states can adopt this method by voting for it in their legislatures. Maine and Nebraska both currently use the district method, but so far neither state has split its electoral votes between candidates (Squitieri 2000). Neal Erickson, Nebraska's assistant Secretary of State for elections, said that his state had adopted this system to bring it more attention during the presidential election, but that so far it hadn't worked (Steel2000). As mentioned in the literature review, one of the problems with 79

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states switching to this system is that they will lose influence in the presidential elections if the remaining states stay with the winner-take-all system. Akhil Amar, a professor of constitutional law at Yale University's Law School, argues that "no other state would be willing to adopt the system unless every state did ... otherwise states that adopted the reforms could see their clout in the Electoral College diminished" (Steel2000, 3655). If a candidate were only going to get a portion of a large state's votes, he or she could have the same relative advantage by winning all of a smaller state's votes that awarded them by the winner-take-all method, and spend less campaigning to do it (Steel 2000). Would the district method make much difference in the presidential selection process? According to the article "Bush Would Still Win with Electoral Reforms" by USA Today, Bush would still have won the election ifthe electoral votes had been awarded to the winner of each congressional district, with two votes given to the popular vote winner from each state (Squitieri 2000). USA Today analyzed the votes and according to its calculations Bush would still have won using the district method with the electoral vote count remaining the same, 271 to 267 (although it is impossible to say whether, if the reform had been in place before the election, the numbers would have been the same, as both candidates might have run their campaigns differently). Supporters of the district method argue that it would reduce the chance of the popular-vote loser's winning the electoral vote, by making the electoral vote more 80

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closely resemble the popular vote. Although the district method may reduce the chance of this outcome, it does not eliminate it. The electoral vote will never equal the popular vote as long as every state is allotted its constant two electoral votes based on its representation in the Senate, which cannot be changed without its permissioiL Electoral votes in the smaller (less populated) states are not worth as many popular votes as electoral votes are in the largest states. The analysis of the last election by USA Today shows how easily the district method could give us the same results in an election with close popular vote totals. This reform, the district method, does not solve the biggest problem that critics have with the Electoral College, for the reasons stated above, and the fact that none of the bills proposed for this reform have passed yet suggests that it is unlikely that bills proposed for this reform will pass in the near future. The next-most-proposed reform was an attempt to bind the electors, or in other words, require electors to vote for the candidate they had pledged to vote for originally, or require electors to vote for the candidate who won the popular vote in their state. Twenty-eight bills were proposed by 16 states attempting to bind their electors. All of these bills either failed or were carried over to the next legislative year, except for the one from Virginia which passed, replacing its previous law binding electors with a stricter version (www.ncsl.org). Twenty-nine states and the District of Columbia already have laws binding their electors, and fifteen more states tried to pass laws binding electors after the 2000 election. With the electoral vote 81

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being so close in the 2000 a few faithless votes could have changed which candidate became president, a fact that most likely had a major influence on the initiation of these bills. Lily Nunez, an elector from said she was an elector for Bob Dole four years ago but "never got the attention then that she is getting now from people across the nation wondering if she will change her vote" (USA Today Nov. 14, 2000). There is a potential problem with these laws, as most constitutional scholars believe they would be found unconstitutional if challenged. If states were not allowed to bind their electors, a constitutional amendment would be needed to rid us of the threat of the faithless elector. Another of the major reform plans presented in the literature, allocating electoral votes according to proportional representation, was proposed by only three state legislatures. These bills either failed or were carried over. The biggest proposed reform plan in the literature and also the reform named the biggest threat to the Electoral College, direct election, received only three proposals from state legislatures. Three states asked Congress to propose an amendment to abolish the Electoral College and replace it with direct election of the presidene and vice-president, but none ofthese proposals passed. Direct election sounds good, it sounds democratic, it has the ring of"one persoll--i)ne vote", but is it 7 France selects its president by direct election, using a two-ballot majority poll. The winning candidate must have an absolute majority of the votes cast. If no candidate wins a majority in the first round, then a second round of elections is held between the top two candidates (www.info-france usa.org). 82

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as good as it sounds? Representative Jerrold Nadler, a Democrat from New York, has problems with holding a national direct election because a.S the recounts in Florida have shown us, "if we had to count 1 00 million votes and we had a close contest, we'd have a real problem" (Cohen and Jacobsen 2000, 3660). Representative Tom Davis, a Republican from Virginia, has similar feelings, as he argues that "a recount in fifty states wouldn't simplify the election" (Cohen and Jacobsen 2000, 3660). Under the direct election system, in a close election in which a national recount is demanded, it could be weeks or months before the situation was resolved and the winner declared. The recount in Florida in the year 2000 postponed the decision of who would be president a little over two months, and that was just a recount from one state. The Gallup Organization surveyed American adults at various points over these two months to determine how long they were willing to wait for a resolution. In a poll done by Gallup on November 19, 2000, 73% of Americans felt it would be worse for the uncertainty surrounding the presidential election to continue indefinitely than if the candidate they supported did not become the president (Newport Nov. 20, 2000). When respondents' answers were grouped according to which candidate they supported for president, 73% of Bush supporters felt it would be worse for the uncertainty to continue, and 71% of Gore supporters responded the same (Newport Nov. 20, 2000). Gallup also polled Americans and asked them how long they were willing to wait for a fmal resolution to the election, and on November 19, 2000, 48% of Americans felt the situation had gone on too 83

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long. These results, however, when recalculated according to which candidate the respondent supported produced a significant partisan split. On November 19, 2000, 83% ofBush supporters felt the situation had gone on too long, while only 17% of Gore supporters felt this way. At this early date Democrats held out hope that postponing the decision and continuing the hand recounts in Florida gave Gore a chance to win. However, by December 2-4, 2000, 63% of American adults felt the situation had gone on too long, (Moore Dec. 5, 2000). The majority of American aduhs preferred to see the situation resolved, rather than wait and hope for their candidate to win. According to these polls, Americans care more about the continuing legitimacy oftheir government, than they do about making sure their candidate wins. The possibility of an election dragging on indermitely is much more likely with the direct election system, rather than the Electoral College. The biggest obstacle to direct election is the need for a constitutional amendment. To amend the constitution requires the vote of three-fourths of the state legislatures, so thirteen states voting "no" could block any proposed amendments. "It might be impossible to persuade states with small populations to relinquish the disproportionate power that they believe they hold in the Electoral College. By constitutional design, those states also have disproportionate influence in the Senate, and that body has stifled past attempts at reform" (Cohen and Jacobsen 2000, 3659). Tim Storey, an elections specialist at the NCSL, says "Some of the states would be in favor of it [amending the constitution] but it would be an uphill battle to get to three-84

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quarters of the legislatures" (Cohen and Jacobsen 2000, 3659). Proponents of small states believe that with the Electoral College, every state's votes are important. Governor Bill Owens, from Colorado, said, ''the Electoral College is needed to guarantee voters in the West a say in the process. I support the Electoral Co liege system because it generally favors smaller states" (USA Today Nov. 14, 2000). With a nationwide direct election, advocates for small states feel that candidates would spend their time where they could get the most votes, large cities and on television (Cohen and Jacobsen 2000). "The Electoral College gives states clout and turns state leaders into power brokers. With little public pressure to change, states are unlikely to support a constitutional amendment that would abolish the Electoral College and diminish their influence in presidential politics" (Schneider 2001, 451 ). In 2002, 7 states proposed 9 new bills regarding Electoral College reform, and as of April2002, one of the bills failed and the rest are still pending. Sixteen states have carried over bills that did not pass in the 2001 legislative session, and so far six of these bills have failed, and the remainirig bills are pending. The results of the 2000 presidential election caused a marked increase in the amount of legislation proposed regarding Electoral College reform. In 1999, 6 bills were proposed, in 2000 no bills were proposed, and in 2001 (following the election) 91 bills were introduced. Ofthese 91 bills, 12 passed, and 79 either failed, or were carried over to the year 2002. The popular-vote loser's winning the election caused a lot of discussion and a flurry of activity, especially in the state legislatures, regarding 85

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Electoral College reform. Many bills were proposed, but not inany passed. Of those that passed, did they achieve significant progress towards meaningful reform? Four of the bills that passed were requests from state legislatures to Congress to preserve the Electoral College. All four of these states gave their electoral votes to Bush in the 2000 presidential election, so attacking the Electoral College after Bush won could be seen as attacking his legitimacy, which may have an effect on why these states want to show support for theElectoral College. Six states passed bills that dealt with procedural matters, such as the processes for selecting and certifying electors, filling elector vacancies, and reimbursing electors. Virginia managed to pass a stricter law binding its electors, and North Carolina passed a law increasing its penalty for faithless electors from $500 to $10,000. The only area in which reform was successful was in binding electors, and increasing the penalties for faithless electors, laws that will most likely be challenged for their constitutionality if they are ever used. The flurry of activity caused by the 2000 presidential election has not as yet resulted in any significant or lasting reform for the Electoral College. Why not? If the "wrong winner" is elected president, why haven't more reforms succeeded? The Reaction of the American Public to the 2000 Presidential Elections According to reformers, ifthe ''wrong winner" becomes president, the legitimacy of the presidency will be weakened and we will end up in a constitutional 86

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crisis. Has this happened? The Gallup Organization has conducted several polls in an attempt to answer this question. On November 11-12, 2000, the Gallup Organization found that 79% of American adults would accept George W. Bush as a legitimate president, and on December 15-17, 2000, Gallup found that 83% of Americans would accept Bush as the legitimate president. Six months later, in July 2001 (before the terrorist attacks on September 11, 2001) another poll showed 73% of Americans accepted Bush as a legitimate president, and an additional 15% replied they did not accept him as legitimate now, but they might in the future. Clearly Bush has been accepted by a majority of the American public as a legitimate president, so the first prediction of reformers did not come to pass. Bush has been accepted as a legitimate president by a majority of the American public, but how much ofhis legitimacy comes from American's respect for the U.S. Constitution, the U.S. Supreme Court, and the fact that. Gore conceded the election? Abbott and Levine (1991) argue that if the "wrong-winner" wins, the only legitimacy he/she will have will be from the respect Americans have for the Constitution. "The United States is an extraordinarily stable political system with almost universal agreement on the rules of the game and enormous respect for the Constitution" (Abbott and Levine 1991, 42). The decision by the U.S. Supreme Court to end the recounts in Florida, in the case Bush v. Gore 531 U.S. 98 (2000), basically declared Bush the next president. This decision, whether people liked it or not, was seen as legitimate because it was made by the Supreme Court. Laurence 87

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Tribe, a constitutional law expert, and an attorney assisting Gore, said that although he disagrees with the Court's he believes that ''the court's place in our lives is such that we all should rally around even if we disagree with the results" (McQuillan and Hall 2000, 2). Senator Dick Durbin, a Democrat from Illinois, said that Gore's "statement should be clear and unequivocal that, according to the highest court in the land, George W. Bush is going to be the next president" (USA Today Dec. 13, 2000). Several Democrats, including Senator encouraged Gore to bow out gracefully (USA Today Dec. 13, 2000), which he did. What would have happened if he hadn't? Nixon was in the same position in 1960, when he an extremely close race to Kennedy, but didn't contest the election results because it was clear in the Electoral College that Kennedy had won the electoral vote. Nixon also claimed he didn't want to put the country through a long drawn out ordeal. Both Nixon and Gore conceded elections that were very close, and that they may have had a chance to win if recounts had gone on. If Gore had contested the results ofthe election, and refused to concede, then reformer's predictions would have come true, and we would have been faced with a constitutional crisis in America. The recounts could have taken months, and most likely would have occurred in other states with a close popular vote count. However, as Abbott and Levine argue, Americans for the most part respect the constitution and play by the rules, and Bush's winning the popular vote, but losing in 88

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the Electoral College, is both constitutional and consistent with the "rules" of our current presidential selection system. In November 2000, the Gallup Organization asked Americans if the events following the 2000 presidential election had caused a constitutional crisis for America, and 15% replied that it had, while 49% replied that it had caused a major problem, but not a crisis. Fourteen percent of the respondents who supported Bush felt the situation following the 2000 presidential election had caused a constitutional crisis, while 17% of Gore supporters felt this way. Both of these percentages are very close to the 15% of all American adults surveyed who felt the election had resulted in a constitutional crisis (Newport Nov. 20, 2000). One year later, in November 2001, a similar survey found that only 7% felt the situation had caused a constitutional crisis, while 35% felt it was a major problem, and 42% of those surveyed said it was a minor problem for the nation. Immediately following the 2000 election, only 15% found the situation to have caused a constitutional crisis, and just one year later this number is down to 7%. It is impossible to say how much of the constitutional crisis was caused by the popular vote loser's winning the election, and how much was caused by the delay in declaring a winner because of the election results in Florida. It is also difficult to determine how much concern over the results of the 2000 election may have decreased in light ofthe terrorist attacks that occurred September 11, 2001, and the subsequent war on terrorism. According to David W. Moore of the Gallup Organization, ''the country has undergone a transforming experience with the terrorist 89

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attacks in New York City and Washington D.C., thus it is not surprising that today Americans see the controversy as far less of a problem than they did a year ago" (Moore 6 Nov 2001, 1). Even before the terrorist attacks, however, the number of Americans fmding this situation to be a constitutional crisis is remarkably low considering the amount of effort reformers have put into making us believe that this crisis would take place. Have Americans lost confidence in the electoral system in our country? In December 2000, 30% of Americans had quite a lot or a great deal of confidence in the electoral system, and in November 2001, 41% of Americans felt this way (Moore Nov. 6, 2001). In December 2000, 67% of Americans felt the electoral system needed a complete overhaul or major reforms, while in November 2001,43% of Americans surveyed responded this way. One year after the 2000 presidential election, confidence in the system went up 11%, and the need for major or complete reforms has gone down 24%. However, that still leaves us with only 41% of Americans having a lot of confidence in the electoral system, and 43% of Americans desiring major change in the system. Why hasn't more progress been made in reforming the Electoral College? By looking at the laws that were proposed in state legislatures following the 2000 presidential election, one can see that there is not a clear consensus on what reforms need to take place. In the literature I reviewed, the most talked about reform was direct election, but only three states proposed this reform in 2001. The district method was the most proposed reform in 2001, but these 90

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bills comprised less than half of the total bills proposed, 44 out of 91. The second most proposed reform in state legislatures in 2001, the attempt to bind electors, is a reform that most critics believe doesn't accomplish enough to be worth the time and effort it would take to pass. Also the constitutionality of a law that binds a state's electors is considered questionable. To make some progress on reform, reformers need to agree on what types of reform need to take place. Why Hasn't Meaningful Reform Taken Place? The 2000 presidential election caused a flurry of activity. Many articles were written concerning the Electoral College, and many bills were proposed by state legislatures concerning its reform. As shown in this thesis, no significant reform has been produced. Virginia passed a bill replacing its former statute binding electors with a stricter one, and North Carolina passed a bill that will increase the fine for its faithless electors. Four states, who supported Bush in the election, passed bills asking Congress to preserve the Electoral College. Six bills passed to change procedures concerning the selection and certification of electors. None of the bills that passed will result in significant reform. The obstacles to reform are the need for a constitutional amendment, the lack of consensus about reform, and acceptance by the American public of George W. Bush as the president. Meaningful reform of the Electoral College requires a constitutional amendment, and, as discussed above, this is not an easy task. Small-state advocates 91

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see the Electoral College as giving them an advantage, and as long as they believe this advantage exists, they can block the passage of Electoral College reform amendments, with only 13 "no" votes. According to the Gallup polls, fewer than half of Americans have a lot of confidence in the current electoral system, and 43% feel we need major reform of our electoral system, but as the proposed bills in the state legislatures show, there is no clear consensus on what these reforms should be. Americans agree that we need change, but until they become clearer on what this change should be, no reform plan will have the support needed to pass. The polls conducted by the Gallup Organization to gage the feelings of the American public about the situation surrounding the 2000 presidential elections show that the majority of the public accepts George W. Bush 8s president, and that a very small percentage ofthe public thought this had election created a constitutional crisis. The results ofthis election have been accepted as legitimate by a majority of Americans. Glennon and Bickel argue that concerning presidential selection, it is more important to have a system that decides quickly rather than accurately, and that in close elections all that is needed is a convenient device that will allow one of the candidates to govern. The Electoral College is that device, The polls conducted by Gallup show that 73% of Americans would rather know who their next president would be than wait indefmitely to have the candidate they support win. The Electoral 92

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College provides clear and quick results that are accepted by the American people. Bush has been accepted as a legitimate president because most of Americans recognize the legitimacy of the Electoral College, and find that it works. It is not worth risking the unknown effects of a reform plan, when the Electoral College works. Longley and Braun (1975) argue that one of the obstacles to reform is the conservatism of Americans towards constitutional change. When reformers try to change the Electoral College, not only are they attempting to change the Constitution, but they are tampering with 200 years worth of legislative enactment, legal interpretation, and custom (Hardaway 1994). Edmund Burke cautions that "it is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society" (Ball and Dagger 2002, I 40). Significant reform in the Electoral College has not taken place following the 2000 presidential elections because of the need for a constitutional amendment, the lack of consensus about what the reforms should be, and the acceptance of the results of the 2000 election by the American people. 93

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WORKS CITED Abbott, David, W., and James P. Levine. 1991. Wrong Winner: The Coming Debacle in the Electoral College. New York, N.Y.: Praeger Publishers. "Americans Have Historically Favored Changing Way Presidents are Elected." 2000. The Gallup Organization 10 (Nov). Ball, Terence, and Richard Dagger, eds. 2002. Ideals and Ideologies. New York, N.Y.: AddisonWesley Education Publishers Inc. Bickel, Alexander M. 1968. Reform and Continuity: The Electoral College. the Convention. and the Party System. New York, N.Y.: Harper and Row Publishers. "Bush Moves Ahead as Gore Bows Out." 2000. USA Today 13 (Dec). Carroll, Joseph. 2001. "Seven out ofTen Americans Accept Bush as Legitimate President." The Gallup Organization 17 (July). Center for Voting and Democracy. "Instant Runoff Voting (IRV) A Fairer Way to Conduct SingleWinner Elections. Web Site. www.fairvote.org. Chadwick, Michael Loyd, ed. 1987. The Federalist. Washington, D.C.: Global Affairs Publishing Company. Cohen, Richard E., and Louis Jacobsen. 2000. "Can it be Done?" The National Journal. 18 (Nov): 3658. "Colorado Electors Ready to go." 2000. USA Today 14 (Nov.). Cummings, Milton C. Jr., and David Wise. 2001. Democracy Under Pressure. Orlando, FL: Harcourt College Publishers. Edgar, Walter B. 1998. South Carolina: A History. Columbia, S.C.: University of South Carolina Press. 94

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Embassy of France in the U.S. Web Site. www.info-france-usa.org. Glennon, Michael J. 1992. When No Majority Rules: The Electoral College and Presidential Succession. Washington D.C.: Congressional Quarterly, Inc. Hardaway, Robert M. 1994. The Electoral College and the Constitution: The Case for Preserving Federalism. Westport, CT: Praeger Publishers. Jensen, Merrill. 1963. The Articles of Confederation. Madison, WI: The University of Wisconsin Press. Judis, John B. 2001. "Shut Down the College." The American Prospect 1-15 (Jan): 10. Klinkner, Philip. 2000. "Q: Should the Electoral College be Abolished in Favor of Direct Election?; Yes: The Electoral College Grossly Distorts the Principle of One Person, One Vote." Insight on the News 18 (Dec): 40. Longley, Lawrence D., and Alan G. Braun. 1975. The Politics ofElectoral College Reform. New Haven, CT: Yale University Press. Longley, Lawrence D., and Neal R. Peirce. 1999. The Electoral College Primer.2000. New Haven, CT: Yale University Press. MacBride, Roger Lea. 1963. The American Electoral College. Caldwell, ID: The Caxton Printers, Ltd. McQuillan, Laurence, and Mimi Hall. "Gore Team Tries to Sort Out Next Step." 2000. USA Today 13 (Dec). Moore, David W. 2000. "Americans Divided on Vote Recount but Majority Say Florida Situation Has Gone on Too Long." The Gallup Organization 5 (Dec). Moore, David W. 2001. "One Year After Election, Controversy Over Winner Appears Less Serious." The Gallup Organization 6 (Nov). National Council of State Legislatures. Web Site. www.ncsl.org. Newport, Frank. 2000. "Public Opinion and the Election 2000 Stalemate: A Summary." The Gallup Organization 20 (Nov). 95

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Newport, Frank. 2000. "President-Elect Bush Faces Politically Divided but Relatively Few Americans Are Angry or Bitter Over Election Outcome." The Gallup Organization 18 (Dec). Newport, Frank. 2001. "Americans Support Proposal to Eliminate Electoral College System." The Gallup Organization 5 (Jan). Rose, Gary L., ed. 1994. Controversial Issues in Presidential Selection. Albany, N.Y.: State University ofNew York Press. Rosenberg, and Victoria Scanlan Stefanakoss. 2000. "Building a Better Election." Newsweek 20 (Nov): 20. Schneider, William. 2001. "Florida Saved the Electoral College." The National Journal10 (Feb): 450. Simkins, Francis Butler, and Robert Hilliard Woody. 1966. South Carolina During Reconstruction. Gloucester, MA: University ofNorth Carolina Press. "Spoiler-Free Elections." 2001. USA Today 5 (Feb). Tom. 2000. "Bush Would Still Win with Electoral Reforms." USA Today 15 (Dec). Stoner, James R., Jr. 2000. "Save the Electoral College 538; It's More Sensible and Democratic than the Alternative." The Weekly Standard 11 (Dec): 17. Michael. 2000. "As Maine and Nebraska Go." The National Journal18 (Nov): 3654. Wildavsky, Marianne Lavelle, and Michael Schaffer. 2000. "School of Hard Knocks." U.S.News 20 (Nov):52. Wilnierding, Lucius Jr. 1964. The Electoral College. MA: Beacon Press. 96