The disputed presidential election of 2000 demonstrated several truths. One is that our system of voting is decrepit, parochial and vulnerable to fraud on a scale only possible with the advent of black box voting. The current disputed 13th Congressional District race in Sarasota, Florida confirms that the process has gotten only marginally better since the millennium. Touch screen machines for which there is no paper trial, apparently failed to register thousands of votes in a race decided by 368. There were 18,368 undervotes (no vote recorded) for the congressional seat, 15,000 more than in the 2002 midterm election. Computer experts say a recount would be a waste of time since there is no way of knowing if the votes in the machines' memory correspond to what voters were actually indicating on the screen. It may well be that the US House decides the race for the voters of Sarasota.
A second truth, and one conveniently ignored or not well understood by Americans is that George W. Bush won because he won the EElectoral College vote. Al Gore won the popular vote by a half million regardless of how the Supreme Court ordered the 'hanging chads' counted in Florida. But Article II our Constitution provides that the president is elected by electors which "each state shall appoint...equal to the whole number of Senators and Representatives to which the state may be entitled in Congress." The November popular vote is the method used for allocating the electors to each candidate for the official Electoral College vote that takes place at the 50 state capitals on the first Monday after the second Wednesday in December. Although the states currently award electors on a popular vote winner take all basis (Maine and Nebraska excepted), there is no federal constitutional right to vote for the appointment of electors and thus, indirectly, the president. The Supreme Court in McPherson v. Blacker (1892) said "the appointment and mode of appointment of electors belong exclusively to the States under the Constitution." This organic provision was reaffirmed in Bush v. Gore (2000). A wag in the US House of 1826 observed during debate that a state legislature could vest power to choose presidential electors "in a board of bank directors, a turnpike commission or a synagogue." Electors, often party stalwarts, pledge to adhere to the results of the popular vote in their state. There is no constitutional requirement that they remain faithful. In recent history eight electors have cast their vote in violation of public expectation. The preponderance of legal opinion is that such pledges are unenforceable. Former president Benjamin Harrison warned in 1898 that "an elector who failed to vote for the nominee of his party...in times of high excitement might be the subject of a lynching."
At the end of Election Day in 2000 Al Gore won 267 electoral votes and George Bush 245. Two hundred seventy was needed to win. Nobody was sure how Florida's 25 electoral votes would be awarded. The conservative majority of the Supreme Court awarded them to Bush in its controversial decision. A key issue in the legal battle over the margin of victory was the application of the safe harbor provision of the Electoral Count Act. In 1887 Congress passed the Electoral Count Act to avoid dealing with disputed vote counts from the states such as those received in the election meltdown of 1876. It shifts the onus of deciding a state's electoral slate by setting a deadline for final determination of an election result by the state's own legal provisions. Such a state determination is made binding on Congress. The Court in Bush v. Gore found Florida's proceeding recount violated federal equal protection provisions. In essence, the Court halted the recount because the state could not meet the deadline imposed for a final state determination under the Election Count Act. Odds are that if a statewide recount had been completed, Gore would have won the electoral College race too.
Feeling disenfranchised at this point? You should. The public has continuously supported abolishing the College. The Gallup organization reported in 2001 that in polls stretching back 50 years, a majority of Americans have supported amending the Constitution to allow for direct popular election of the president. This complex system was intended by the founders to elect the president by vote of sober, well informed statesmen not subject to popular enthusiasms or misconceptions, and at best was a jerry-rigged improvisation in order to reach compromise and bring the Constitution to a ratification vote. In our time of mass media, nearly instantaneous communication, widespread literacy and public education there is no justification to continue with a system that violates our deeply held notions of political equality nor provides us protection from fraud. As the election of 2000 showed the world, the Electoral College magnifies such imperfections in our democratic process.
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