How do you like the way we elect presidents? Are we on the brink of another election in which the vote of the Electoral College gives us a president while the vote of the whole American public recommends another? Sweet irony if this time the Democrat gets the nod, but is this a reasonably democratic way to pick a president? And if we fix that, is the Electoral College the only problem with our electoral process?
Election requires a majority of the Electoral College a body with a membership fixed at 535 since Congress raised the House of Representatives to 435 voting members. Each state gets one elector per representative and senator so Alaska gets three. It takes 268 to elect a president. The system set up in the original convention was a bit of a mess so in 1804, 14 years after the original convention, the constitution was amended and once again in 1933.
It remains true that each state legislature selects its electors. In a move reflecting democratic principle, every state legislature subsequently adopted a law instructing its electors to vote for the candidate who won the state's popular vote. It is not clear to a legal certainty what happens if an elector follows the original intent of the constitution and votes for the person the elector believes to be most qualified.
If no candidate receives a majority of electoral votes, the House of Representatives picks the president, sort of. The vote is apportioned by state, each getting one vote reflecting the majority voteof its U.S. House representatives. If no majority is available- well it gets even more complicated.In 2012, since there is no third party candidate to pick up electoral votes, the likelihood that a majority of the Electoral College can pick a president is high.
Presidential elections are also governed by a new rule: if there is a dispute as to who won the popular vote of a state and the vote of that state determines the outcome, then the Supreme Court will replace the state supreme court as the decision maker.
A few Americans have decided that this system is too weird and have urged their states to instruct their electors to vote for the candidate who has won the popular vote, notwithstanding the in-state vote. Others have suggested that their electoral vote be divided proportionately to the vote in their state, rather than a winner takes all approach.
Alaska's Legislature has gone with neither view, the majority clinging to the view that Alaska has the small state advantage from getting three electoral votes, a disproportionate share of the whole. Since Alaska became an oil state, you could count on Alaska's vote to be Republican so both parties have largely ignored Alaska. Why can't we just elect our president by majority vote?
In the beginning each of the southern states got to weigh in their slaves as a two-thirds person, giving each slave state more representatives and therefore more electors. When the Civil War ended outright slavery, blacks counted now as 100% but were prevented from voting. As the Jim Crow system deteriorated under the impact of the civil rights movement of the late 20th Century, deliberately disproportionate felony convictions became an alternative for keeping the black man in his place and making sure he had no vote.
In an age of ceaseless internal migration in pursuit of employment, millions of men, about half black, remain everywhere disenfranchised. The vote should be a right of citizenship, not a reward for good behavior.
Every year, in a few states or counties, other efforts to limit voting by minorities are undertaken. A fraction of the poor can be deterred by polling lines, registration and voter identification standards. These measures are direct descendants of the Jim Crow rules requiring a poll tax (pay to vote) and literacy tests (applied by white officials). It is time the Congress adopted uniform voting standards to protect democracy nationwide. Democracy, half youngster and half old lady, needs improved protection from historic and new predators.
John Havelock is a former Alaska attorney general and author of "Let's Do It Right," a book calling for an Alaska constitutional convention.