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October 29, 2004



PAUL GIGOT:  Think of it this way, if you live in California or New York or Montana or Texas or about 20 other states you may have heard about all of the commercials for Bush and Kerry but you probably have not seen many.  That's because everyone knows how people in your state are going to vote and why spend money on commercials if all of your state's electoral votes are going to go to the winner under the winner take all system of the Electoral College.

So if for example you're one of the more five million people who will probably vote for Bush in California your vote will probably not mean very much if anything.  The state's electoral votes are all going to John Kerry.

Periodically there are calls for reform of the Electoral College system and it's actually on the ballot next week in Colorado.  Our report is from correspondent Rick Karr.

RICK KARR:  Angry voters, hanging chads and the mother of all Supreme Court battles.  If you thought that Florida was a mess in 2000, watch out for what could happen in Colorado this year.

GOVERNOR BILL OWENS:  We'll have the state Supreme Court versus federal Supreme Court possibility.  Very similar to Florida we might have those two courts disagreeing with one another once again.

RICK KARR:  This year Coloradoans will cast two votes that could determine who sits in the White House.  In addition to their vote for president, they'll decide whether to change the state Constitution. 

On election day Colorado voters are going to be deciding on a Constitutional amendment that would change the way the state assigns its votes in the Electoral College.  Will they stick with the old system under which all nine of those votes go to whichever candidates get the most popular votes or will they divide those nine votes proportionally based on the popular vote?

The ballot measure is known as Amendment 36.  it's supporters say it's all about fairness.

RON TUPA, outreach director, Make Your Vote Count:  In a winner take all system the only votes that are counted are the votes for the winner.  Amendment 36 would change that to make sure every person's vote is counted.  It kind of guarantees the principle of one person one vote.

RICK KARR:  If Amendment 36 becomes law and the presidential vote in Colorado is close, the winning candidate would get five electoral votes, the loser four.  That means just one vote is up for grabs.  Governor Bill Owens says that means Colorado would lose bargaining power in Washington.

GOVERNOR BILL OWENS:  If you're a state where it's a close call between closing a military base in Colorado with one electoral vote versus in Arizona with nine or 10, all things being equal I think some administrations might choose the state that has the electoral votes.

RICK KARR:  That's why some politicians from both parties oppose Amendment 36.  The parties have too much to lose if the winner take all system changes. At a political forum in rural Loveland, Colorado voters had a lot of questions about the amendment.

FEMALE VOTER:  Tell me why I should vote for Amendment 36.

RICK RIDDER, campaign manager, Make Your Vote Count:  If Florida in 2000 had been on a proportional system it takes 100,000 votes per elector to switch.  So you wouldn't have had this problem with chads.

FEMALE VOTER:  I think it's a wonderful, wonderful idea.  I'm just still a little undecided. 

RICK KARR:  The Colorado debate is the latest round in a fight that's been going on since the founders sat down to draft the Constitution.

ALEXANDER KEYSSAR, professor of history and social policy, Harvard University:  The founders had widely divergent views about democracy.  For most in fact the word 'democracy' was a disparaging word, it was a negative word.  They used the term 'republic.'

RICK KARR:  And they created the Electoral College to serve as a buffer again mob rule.  The Constitution lets each state's legislature decide how it's electors should vote.  Early on some electors voted for whomever they wanted.  But by the 1830s each state's dominant political party had forced electors to vote for the candidate who won the popular vote.  That winner take all system has prompted hundreds of attempts at reform.

If Colorado's Amendment 36 had been on the books in the last presidential election, George W. Bush who won just over half of Colorado's popular vote would have lost three electoral votes to Al Gore - enough to put Gore in the lead. What's more, most proposals to change the Electoral College would make it easier for third parties to play a bigger role in presidential politics.

ANDREW BUSCH, professor of government, Claremont McKenna College: Ross Perot for example in 1992 would have won a lot of electoral votes with 19 percent of the vote.  He didn't win any states so he actual got zero under the current system. 

RICK KARR:  So, if I hear you correctly we would have a situation in which a candidate like a Ross Perot would be able to be a kingmaker of sorts by throwing his electoral votes to someone.

ANDREW BUSCH, professor of government, Claremont McKenna College:  That is exactly right.  So you're talking about the possibility of putting a lot of power and a lot of leverage into the hands of folks who are getting 10 or 15 or 20 percent of the votes.

RICK KARR:  Before a single vote on Colorado's Amendment 36 had been counted a Fort Collins voter asked a federal judge to rule it unconstitutional.  The judge dismissed the suit, but it's central issue is likely to be heard in court again if the amendment passes; that when voters went to the polls they could not be sure how their votes would effect the electoral count.

RICHARD HASEN, professor of law, Loyola Law School:  Is it somehow unfair to go into the polling booth on election day and not know whether say your vote for Nader is going to count for nothing or could potentially mean a single electoral vote?

RICK KARR:  Even some opponents of Amendment 36 say they might be in favor of changing the Electoral College system.

GOVERNOR BILL OWENS:  If there's a national debate and a national decision that would be not nearly as onerous as having Colorado as a guinea pig go first and then look around to see if anybody else is following.

RICK KARR:  Harvard's Alexander Keyssar says the nation needs to confront once again the question of whether the U.S. is a republic or a democracy.

ALEXANDER KEYSSAR, professor of history and social policy, Harvard University:  The country right now pretty universally subscribes to the notion that we are a democracy and that all votes should count equally.  And the Electoral College violates that principle. 

PAUL GIGOT:  Joining us to talk about the Electoral College is James Taranto editor of Opinion  James you heard that last line arguing that some votes under our current system are more equal that others.  Do you agree with that?

JAMES TARANTO:  Yes, that's true and that's a good thing.  Imagine if every vote counted exactly the same as every other vote nationwide.  The first thing that would happen is you would have a much greater incentive for fraud.  Somebody in Louisiana or New Jersey steals a vote, he's stealing a vote from everyone in the country.  It's not contained to his state.

The second reason is, suppose you have a close election like we had in 2000.  But a close election in a system where you choose the president by direct popular vote.  It would be Florida times 51.  You would have a nationwide recount.  It would be a nightmare.

PAUL GIGOT:  Or maybe times 3,066 since that's how many counties we have.

JAMES TARANTO:  Yes, plus you've got some independent cities.  You've got St. Louis.  It would be a mess. 

PAUL GIGOT:  There's a benefit of the Electoral College, is there not Dan, in making plurality presidents?  That is presidents, candidates who win less than 50 percent of the vote turning them into majority presidents via the Electoral College.  I'm thinking in particular of Bill Clinton who won 43 percent of the vote in 1992, but one 370 electoral votes 100 more than he needs to prevail.  Isn't that helping to establish legitimacy?

DAN HENNINGER:    Absolutely and I think it does so in a decisive way as opposed to, as the taped segment was saying, a direct popular vote which would give enormous incentive to people lie Ross Perot to run.  He got 19 percent of the vote I think in that election.  And then bargain with either side to throw his votes in that direction.  I think a system like that really would be sending us towards a multiple party system like they have in Europe.  The two party system has served us very well.

PAUL GIGOT:  All right Susan tell us where we're wrong.

SUSAN LEE:  Oh my heavens.  Well, first of all I disagree with everything that everybody has said.  Direct popular voting is the only way not to disenfranchise people.  As the taped piece said, if you live in the state and you vote for the loser you have been disenfranchised, A. 

B, Electoral College creates the incentive for fraud because the numbers are much smaller so with a smaller number of fraud you can be more successful.  Direct popular vote it's very difficult to amass the number of fraudulent votes that you need and that's a disincentive.  The value is much less. 

And thirdly, so what if we had three parties?  So what if we had four parties?  If people want to vote.

DAN HENNINGER:  Banana republic bill.

SUSAN LEE:  I don't think so.

DAN HENNINGER:  Absolutely

SUSAN LEE:  I think you have a very strange idea of democracy.

PAUL GIGOT:  What about the legitimacy point though Susan cause that's an important one?  If you have a 43 percent winner it helps to have some system which says you know what, you're still a majority president and it helps in governability does it not?

SUSAN LEE:  Well, I think again this is based on the notion that people don't understand that the person only got 43 percent.  That suddenly after the Electoral College votes and says oh, you have 300 electoral votes everybody says oh, I forgot about the 43 percent.  Suddenly this man is a fantastic majority president.  People are not that stupid.

PAUL GIGOT:  James, how many times in U.S. history has the winner of the popular vote lost the Electoral College.

JAMES TARANTO:  Well, three or four depending on how you count it.  In 2000 of course as we all know.  In 1888 Benjamin Harrison beat Grover Cleveland, but Cleveland had a popular vote plurality.  And in 1876 which was a disputed election that was even more disputed than in 2000 Rutherford Hayes beat Samuel Tilden who actually had a majority. 

In addition, in 1824 Andrew Jackson had a popular vote plurality and John Adams won the election in the House of Representatives but six states at that time didn't choose electors by popular vote so it's [UNINTEL] ones you count up.

PAUL GIGOT:  Except for one instance in more than 200 years the winner of the electoral vote also won the popular vote.  Well, I guess it's three but in one case the person won 50 percent of the popular vote.

JAMES TARANTO:  Right, only once has somebody who had the majority of the popular vote and still lost the election and that was a questionable election.

JOHN FUND:  The current system really comports with the way the country was formed.  We have 50 states.  They all have a certain number of electoral votes.  The candidates, look at what they're doing now.  They're running all over the country trying to appeal to the electoral votes within those states.  If we went to a direct vote you could sit in Washington and run your entire campaign off of television.  Just run TV ads on a national level.

PAUL GIGOT:  If you were in Lacrosse, Wisconsin you'd never hear from the presidential candidates in that kind of system.

SUSAN LEE:  But you're only hearing from the presidential candidates because Wisconsin is a swing state.  Now you probably wish you weren't in Wisconsin as a swing state.  But their same incentives are in place under either arrangement.

PAUL GIGOT:  Let's talk about the scenario of a tie.  269 to 269.  It's happened a couple of times in our history.  What happens if that is the case and neither man gets an electoral majority?

JAMES TARANTO:  If no man has a majority of the electoral vote then the election goes to the House of Representatives.  Each state's delegation gets one vote and you need a majority.  Most states have republican majorities now so Bush would presumably win.

There's a bit of a wild card here though.  What you could have is what's called a faithless elector.  You could have somebody cast a vote for let's say John McCain.  So it's 269, 268 and one for McCain.  The Constitution stipulates that the House has to choose from among the top three finishers.  So that would be a wildcard.  That would be a way that somebody else could theoretically win.

PAUL GIGOT:  Alright, we've got to keep this short.  But James, what is happening in Colorado and what is the likelihood of that amendment passing?

JAMES TARANTO:  Well, the latest poll by Mason Dixon says 31 percent yes, 55 percent no.  That means it will almost certainly go down because people tend to vote against initiatives that they're not sure about.

PAUL GIGOT:  So we're going to have a replay of 2000 at least in the electoral vote count this time.  No reform unless something else happens.  Alright, thank you very much.  Next subject.