Tom Wolfe is a trial attorney and commercial litigator whose practice is focused on complex business cases including product liability, oil and gas, mass tort and class action defense. Tom is also the president and managing partner at Phillips Murrah.
By Tom Wolfe, Published Nov. 29, 2012 in The Journal Record monthly legal column, Gavel to Gavel.
Gavel to Gavel: Elective Options
The election is over, thank goodness. There was such a buzz surrounding the possibility of President Barack Obama winning the Electoral College and Mitt Romney winning the popular vote.
That very thing has occurred in 1876, 1888 and 2000. Some historians include the year 1824, because no candidate won a majority of electoral votes and the U.S. House of Representatives selected John Quincy Adams, second in the popular vote.
Why do we have an Electoral College, anyway?
Built into the U.S. Constitution, the Electoral College’s 538 electors reflect Congress’ 100 senators and 435 representatives – apportioned to each state, with three electors for the District of Columbia. Each state’s electoral votes are awarded in a winner-take-all fashion except for Nebraska and Maine, which allow votes to be split by district.
Why didn’t the Founding Fathers opt for direct election?
We have a representative form of democracy. Our founders feared that a true democracy could lead to the tyranny of the majority, where one faction could grow to encompass more than 50 percent of the population. Then, according to James Madison, it could sacrifice to its ruling passion or interest both the public good and the rights of other citizens. The founders even considered leaving selection of the president to Congress, but settled on the Electoral College.
That was then; this is now.
Why not get rid of the Electoral College and allow the president to be decided by popular vote? It’s simple –politics! States with lots of land and few people benefit, since each state gets at least three electors. Hence, low-population states matter. That most of the low-population states are of one party (Republican) only adds to the challenge.
If we did want to get rid of it, how would we do it? Only by constitutional amendment, which would be exceptionally difficult. For an amendment to pass, it must be approved by two-thirds of both houses of Congress and three-fourths of states. This would require massive consensus in favor of the change (not likely).
Time Waits for No One. You now understand the Rolling Stones’ frustration, expressed in their song about getting rid of the Electoral College: “Time can tear down a building or destroy a woman’s face/ Hours are like diamonds/Don’t let them waste.”