An Embarrassing Relic of Authoritarianism - 15 December 2000

If through some happy time warp you could appear in Philadelphia in the spring of 1787 and walk in on those 55 men who were undertaking the preposterous task of inventing a system of government, what answer would you expect to the question: Who is to have the main say in choosing a president?

As a modern man or woman you'd rightly anticipate the answer: A majority of the popular vote in a national election.

Well if you'd suggested that answer then the general response would have been a spasm of horror.

That is the obvious democratic answer. But in the first days of those hard fought, hard thought, 17 weeks, they'd agreed very quickly that of all the forms of government they were considering democracy was the one they most wanted to avoid.

Said George Washington: "Accounted by civil societies it is the worst and nastiest kind of government."

So two of the brightest men who wrote much of the Constitution - James Madison and Alexander Hamilton - devised an institution that would act, as they put it, as a precaution against the worst of democracy's threats - the tyranny of majority rule.

By all means let every qualified man vote, vote a favourite for president and of course they'd constitute the popular majority.

But the president would be chosen by special men to be known as electors, and they must be men of substance - wealthy enough to be unbribable - well informed about affairs outside their own state, they must hold no public office of any kind, they must be independent men, as Hamilton prescribed, "of virtue and merit."

There would be as many of them in each state as the number of congressmen plus their two senators.

And they should send their individual votes to Washington by mid-December.

And on 5 January the results would be announced, and the president proclaimed, by the existing vice-president - this coming January, by irony's child, Al Gore.

A bare majority of the total electoral votes dictates the winner.

In all the frantic debate in and out of the courts this past five weeks I have seen or heard only one piece which mentions this crucial fact: That the electoral college was invented as a buffer, one said, or a refining chamber against the main peril of democracy.

And not even one of the justices of the Supreme Court ever dared mention it in passing.

Because, plainly, it goes against all the democratic principles and slogans: "Count every vote", "One man one vote", "The people's choice".

The historical fact is that within 30-some years of the invention of the electoral college the United States was a fast blooming democracy which nevertheless retained the electoral college.

And the excuse for keeping it has survived to this day, which is: Well anyway the electors always faithfully follow the guidance of the popular vote in their state.

And so they do, but note they're not absolutely legally bound to.

If a couple of rebellious Floridians - two men or women of virtue and merit - are so disposed they could vote for Gore next 5 January, leaving Governor Bush one vote short of the required 270.

And on 6 January we could say, with Othello: "Chaos is come again." Let's not even bring it up.

The constitutional convention was driven by another motive: To set up safeguards against the tyranny of a too-powerful executive - a king or a president or a national congress.

James Madison, a 36-year-old with an astonishing knowledge of forms of government, drew on examples from republics, syndics, communes, monarchies, examples ancient and modern, to show that when a national government can override, when it wishes, the powers of provincial governments, very soon the provincial governments become impotent - mere lackeys.

The best preventive of a central tyranny is provincial power.

So Madison urged, with great eloquence and conviction, that the states be given the widest possible powers - their own control of education, banking, their own criminal code, their own courts and in some things, like choosing electors, the state legislatures would be superior to any federal legislature or court.

By the way there was a big todo in the first US Supreme Court hearing this time whether that court ought to intervene in this thing at all.

Looking and thinking back over the hundreds of pleas and oral arguments and legally knowledgeable comments of scores of journalists I find most memorable and most apt to the whole shebang a single sentence by an old Southern judge and a short sharp speech from an assemblywoman - that's to say a member of the lower house of the Florida legislature.

First, Judge Saul, you remember the small bald headed mock ferocious character right out of Mark Twain?

Ready to deny the recount, which the Florida Supreme Court subsequently ordered, he was going over what had become the well-worn bone of contention: The difficulty of telling from those famous butterfly ballots and their little chads whether a machine had been faulty, a hand too casual, but either way how to be sure that they'd been properly punched to indicate a vote.

Before 7 November I imagine few of us thought we'd ever have to puzzle over hanging chads, pregnant chads or any other chad than the Republic of Chad.

After listening to hours of legalese from the Bush side and the Gore side we were left with the impression that one pack of ballots had been falsely disallowed by politically biased counters or that the counters were variously incompetent or that several recounts had turned too many ballots into bedraggled, indecipherable scraps of paper.

Nobody said aloud in the courtrooms what millions of Americans were thinking - namely, that this form of ballot, used in many other states, is a dreadful invention liable from birth to work badly.

The other thought was that when you receive a set of instructions for using this very ballot ought not some responsibility attach to the voter?

Judge Saul said it all in nine words: "The voter has an obligation to do it right."

One general hope that has come out of all this is that the new Congress will make a law abolishing the chad ballot or, better, requiring a uniform national ballot.

As it is the chad itself violated the Constitutional 14th Amendment - the clause which guarantees to all citizens the equal protection of the laws.

The second most memorable happening for me came from this lady speaking as a member of the Florida lower house.

The speaker of the house said he recognised Mrs Argenziano for a minute and a half.

She didn't need it. She started at once.

"I am not a psychic. I am not a lawyer. I do not slice baloney for a living.

"There is a Florida statute which specifies: A ballot is valid only when it shows 'the clear intent' of the voter.

"Well haven't you seen the boards? - Four people with judges looking on, trying to guess at a voter's intent. Holding paper up to the light, going to the window, using a magnifying lens, going through all sorts of optical acrobatics to discover what the statute says ought to be made clear."

As Justice Sandra O'Connor insisted on asking, in one late exchange on the United States Supreme Court: "But doesn't the standard of recognising validity vary from county to county?"

The Gore lawyer was about to nod assent, then she said: "But it varies, does it not, from board to board, table to table?"

And of course it did, from human to human, and not as both opposing lawyers constantly tried to imply through casual fraudulence or deliberate malice or political bias.

The fault, dear Brutus, did not lie in human mischief but in the failure of that sort of ballot to reveal anything that four honest citizens could recognise as clear intent.

Therefore, since the last session of the United States Supreme Court was called with a stated challenge to the Constitution to the 14th Amendment, it was the conclusion of seven of the justices that there was no new standard of counting to be found that could show clear intent.

Clearly then many Floridian voters had suffered from the unequal protection of the laws.

Five said positively no recount therefore should take place. And so their No was decisive.

It turned out that in its second session the court had no more misgivings about taking the case since this time a constitutional violation of an individual's rights was the plea.

The court didn't order the recount to stop or begin again. It didn't order anything.

It threw up its hands and said there was no time to devise a fair system and so the result certified by the Florida secretary of state way back there on 8 November should stand. The original calendar should be the judge.

In sad fact, after 16 hours debate the Supreme Court just gave up, leaving the first, hair's breadth count to stay.

Only Thomas Jefferson, off in Paris, as a distant observer was possessed, at the time, by an odd, not to say morbid fear, about the new government.

That one day, as democracy came in and advanced, the single instrument of government most to be feared was not the legislatures, not the presidency, but a tyrannical supreme court going beyond its brief and getting into things only the state legislators should decide.

I'm afraid the idea that the electoral college is, in a modern democracy, a freak, an embarrassing relic of authoritarianism, is such an uncomfortable and unfamiliar truth that it's unlikely, for some time, to replace the universal legend that America broke with a tyrannical English king and lit the fires of a roaring democracy.

But surely sooner than later it will have to be abolished or radically reformed.

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