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Tuesday, November 13, 2012

Richard Posner gives 5 reasons to keep the Electoral College.

In case you want to contemplate the unachievable goal of getting rid of it or you just want to learn to love what you can't avoid.

After the 2000 election, I read 3 books, published in 1971/1972, dealing with the inquiry into the Electoral College that grew out of the very close 1960 election. The great constitutional law scholar Alexander Bickel wrote one of the books, "Déjà vu: Reform and Continuity; The Electoral College, the Convention, and the Party System." Here's the PDF of the article I wrote about it.

Posner doesn't mention one benefit to the Electoral College that was considered very important back in the 1960s: the perpetuation of the 2-party system. From my article:
Although the electoral college does not eliminate third parties, it suppresses them. Only the geographically concentrated third party can gain electoral votes. If third parties have a role to play, one should argue that it is the third party that transcends state borders that is more likely to infuse the political debate with worthy new ideas; better a Henry Wallace than a George Wallace. Despite the disturbing ability of a third party candidate like George Wallace to make headway in the electoral college system by appealing to regional prejudice, that candidate did not succeed. The threat he posed within the electoral college system was overshadowed, at least for some observers, by the potential under the direct vote system for multiple candidates to jockey for position in a runoff or to seek to provoke a runoff and then bargain with candidates who might need to make deals or concessions to win in the runoff. Withdrawing the need to win a plurality in a state to acquire votes would energize third parties who tapped national popular issues. More candidates would enter the field, creating a greater likelihood of a runoff election and lowering the percentage necessary to qualify for the runoff. What if moderate candidates cancelled each other out, resulting in a runoff between two ideologues or extremists? What would stop major party candidates who failed to win their party's nomination from routinely joining the race? Instead of opening the democratic process to greater participation, one might end up with a small crowd of “demagogues, quick-cure medicine men, and ... fascists of left and right” who would collude among themselves.
The perceived need to preserve the 2-party system led the ABA to identify 6 other reasons why it would continue without the Electoral College:
... (1) the tendency of an existing form to persist; (2) the use of plurality votes to determine the winners of single member districts; (3) public consensus; (4) a supposed American cultural homogeneity; (5) political maturity; and (6) the natural tendency toward dualism. 
Yeah, I know: what?! But that's what they said. You may wonder what's so damned good about the 2-party system. But a key point was: You can't amend the Constitution without the votes of the present members of Congress and the state legislatures, and these folks are all there as a consequence of the 2-party system. The argument they made out loud was that the 2-party system produced stability and moderation.

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