Is the Constitution Unconstitutional?

The results are clear; in November’s election the President won a comfortable majority of the popular vote and a much closer victory in the Electoral College. But one has to wonder what might have happened if a relatively small number of votes had been different in Ohio; with a swing of about 50,000 votes, John Kerry would have won Ohio and a majority of votes of the Electoral College. He would have been president even though George Bush had a majority in the popular vote of more than 3,000,000.

The Electoral College was created in the Constitution (Section 1, Clause 2). Each state is to have one elector for each of its members in Congress; since all states have two Senators and at least one member of the House of Representatives, the minimum number of electors is three. This mandate has created vast disparities between the smallest states, such as Wyoming (pop. 493,782), Delaware (pop. 783,600), and Montana (pop. 902,195), on the one hand and the largest states, such as California (33,871,648), Texas (20,851,820), and New York (18,976,457). (All numbers are from the most recent census in 2000).

This means that in each of the three largest states it takes between 616,000 and 672,000 votes to elect one elector. But in the three smallest states (each with three electors) to elect one elector, it takes only 301,000 votes in Montana, 261,000 votes in Delaware, and 165,000 in Wyoming. In Wyoming, therefore, each vote has nearly four times the impact that each vote has in the three largest states, an enormous disparity. All of this in a country where the Supreme Court has mandated “one person, one vote.”

That alone might be enough to change the system, but an even more compelling reason is the inexplicable custom that has developed where in each state winner takes all. So it was in 2000 where the popular vote margin in Florida was less than 400 votes, the Electoral College chose the candidate who lost the popular vote nationally by 550,000. If the Ohio vote had gone for Kerry this year, it seems almost certain that the hue and cry that would have been raised by the Bush supporters coupled with the fact that this would have occurred in two consecutive elections could have led to some kind of reform. And given that each party would have been a victim of the system, bi-partisan support would have been likely.

There have been efforts to eliminate the Electoral College and simply let the popular vote decide, but they have foundered on the opposition of the small states who apparently do not wish to surrender their disproportionate voice in presidential elections. Since three-quarters of the states must approve a constitutional amendment, it takes little to obstruct the amendment process.

A more realistic, partial remedy would be to eliminate the winner-take-all custom by legislation. Congress could mandate that the electoral votes must be proportionate to the popular vote in each state, though there appears to be little sentiment even to address the issue. Such legislation would have been virtually inevitable had the results in Ohio been ever so slightly different.

Grotesque results, where clearly the candidate who “wins” loses, will be tolerated by the electorate only so long. By not passing reform legislation, Congress invites a dangerous confrontation down the road. But Congress, being Congress, blissfully ignores the issue.

This article is all about speculation; it did not really happen. But if it had, a system out of balance would have been exposed, and a serious constitutional confrontation, with who knows what consequences, has only barely been avoided. Leaders take note.

— Ken Butera