Jack Rakove: Chaos on Tuesday Could Have the Welcome Effect of Ending the Electoral College

Jack Rakove, in the LAT (Oct. 31, 2004):

Part of me perversely hopes that Tuesday's election is a replay of 2000.

Three years ago, I undertook a fool's errand to the Jimmy Carter Library and Museum in Atlanta to urge the National Commission on Federal Election Reform to recommend altering or even abolishing the electoral college. The former president, host and honorary chairman, received me graciously, but when Carter heard my message, he said: "It is a waste of time to talk about changing the electoral college…. I would predict that 200 years from now, we will still have the electoral college."

The conventional wisdom that Carter voiced has an obvious source. Any effort to replace our state-based electoral system with a national popular vote would require a constitutional amendment, and its ratification could easily be blocked by a coalition of the 13 smallest states, which would naturally resist their presumed loss of political influence.

This is a formidable obstacle. But I also believe that Carter got the basic point backward. If we never talk about the electoral college, we will remain stuck with it for another two centuries. But if we discuss it, the arguments made in its defense can be exposed for the fallacies they are.

Logic alone would never be sufficient. Compelling evidence of the need for change would also be needed. This requires hoping that the electoral college misfires another time, as it did in 2000, when it gave an electoral majority to George W. Bush and a popular plurality to Al Gore.

The conditions for chaos in Tuesday's election already exist. Turnout will be decisive, and a good dozen states appear in play. It's plausible for Sen. John Kerry to gain an electoral victory while President Bush carries the popular vote. Electoral numerologists also have scenarios for an electoral tie (269-269), which would throw the decision into the House of Representatives.

But my own preferred if perverse formula for chaos involves Colorado.

Appearing on that state's ballot is Amendment 36, which would divide Colorado's nine electoral votes proportionally, based on statewide results, and take effect immediately. So consider this wild scenario:

The amendment passes and the election turns on Colorado. Give Kerry 269 electors, Bush 260, allow Bush to carry the state's popular vote, even while its confused citizens approve Amendment 36. Presto, we're back in Florida. Kerry picks up four electors, surpasses the magic electoral number of 270, and Republicans immediately go to court. They argue that when the Constitution says that electors in each state are to be appointed "in such manner as the legislature thereof may direct," it means the "legislature" as an institution, not legislation enacted by popular referendum. Democrats reply that the people also act as a legislature when they approve a referendum, and that in 18th century usage, legislature meant the supreme law-giving power within a state, and not merely the people's elected representatives. You make the call.

As the campaign comes to an end, public opinion and turnout may still move decisively in favor of one candidate, sparing the nation its second electoral debacle in a row. Yet whatever its fate and effect, Amendment 36 nicely exposes the problematic nature of our electoral college. It recognizes that one effect of the winner-take-all rule that has prevailed since the early 19th century is to disfranchise the minority within any state....