BEHIND AL GORE'S unprecedented challenge to George W. Bush's slim but certified majority of electors is the vice president's claim to the moral and political high ground based on having won the popular vote. For now, the recount in Florida is at issue, but soon the fight may move to the Electoral College, whose members will be importuned to respect the "will of the people" and defect from the ticket to which they are pledged. Democrats need recruit only three such "faithless electors" to secure the plebiscitary outcome they desire.
To that end, they will try to delegitimize the Electoral College, a part of our constitutional system that prominent Democrats and allied academics have long denounced as anachronistic and undemocratic. Sure enough, shortly after the election, calls for the abolition of the Electoral College appeared in the New York Times and on the lips of senator-elect Hillary Rodham Clinton.
In the last few weeks, able defenses of the Electoral College have also begun appearing. These stress mostly its practical advantages. Sometimes it insures that small states get noticed in presidential elections. Sometimes it heightens the importance of major centers of population. Often it turns relatively weak popular pluralities into decisive electoral victories (as in Lincoln's first election and both of Clinton's). And it discourages third parties and avoids the chaos and danger of nationwide recounts.
Sometimes the defenders take a constitutional tack, placing the Electoral College among the several institutional arrangements of the federal government that check and balance national majorities: the separation of powers, bicameralism, equal representation of states in the Senate, the independence of the courts, the rule of law itself. No one, of course, is an originalist on this point, since the Electoral College quickly ceased to be an assembly of notables exercising their own judgment and became a mere conduit of party competition. Still, an appreciation of the constitutionalist position is essential in the present controversy. To discount the Electoral College now would be to change the rules after the game was played. Had winning the popular vote been thought decisive, some voters might well have voted differently, and the candidates certainly would have campaigned differently, fighting hard for votes in states, especially big states, even after they had concluded their opponent would carry them.
But what is usually overlooked, and to my mind clinches the case for the Electoral College, is that, historically speaking, the Electoral College has been a channel for the progressive democratization of our constitutional system, while at the same time safeguarding within that system the vital role of its most democratic element, namely the states.
In 1800, most of the 16 states chose their electors by vote of the legislature; only 2 chose them by popular vote. By 1824, the number of states had grown to 24, and most of them chose their electors by popular vote; only 6 still left the job to their legislatures, and that number soon dwindled to one. The 1820s also saw the democratization of candidate selection, with the demise of candidate selection by caucuses in state legislatures and the rise of state nominating conventions. The first national nominating conventions were held in the early 1830s. The democratization of the choice of president, like the expansion of the franchise and popular election of governors and even judges, resulted from reforms in the states, though as often happens in American history, the states moved in concert.
At the beginning of the twentieth century, another wave of democratization swept the states, establishing in many of them processes of direct democracy -- such as the legislative initiative and referendum -- to supplement representation. While the modern expansion of the franchise, to blacks, women, and the young, has required amending the U.S. Constitution, even these reforms were pioneered in the states. And, embarrassing though it may be to friends of democracy, segregation and the disenfranchisement of blacks in the South in the first half of the twentieth century -- two notably anti-democratic developments -- took place not in spite of, but as a result of, majority rule.
Still today, the states are more democratic than the federal government. Even leaving aside processes such as the initiative and the election of judges that are of long standing in the states but unknown at the federal level, state and local governments are more accessible to citizens, both voters and candidates for office. Local interests that despair of making their voices heard in Washington can readily achieve representation in state legislatures and in municipal governments, which are chartered by the states. Political careers get started at the local and state levels, where television is not the only medium of communication and candidates can campaign door to door. New populations get involved in local and state politics long before they make their mark on the national scene.
Moreover, the concerns of state and local governments are often those of most immediate importance in people's lives: education, the security of persons and property, the keeping of the peace, and much else that affects the development of a common life. To those of us who do most of our business over the phone or on the Internet and have to take planes to see our friends, the states may seem an annoyance. But to the many Americans outside the "federal class," who live their lives near their families or move somewhere and plan to put down roots and stay, the states are most emphatically home.
By tallying votes for the highest office of the land state by state, the Electoral College gives recognition to these self-governing communities. We know this intuitively. The whole process of presidential selection, from the first caucus to the last recount, focuses national attention on the states in all their distinctiveness. We are reminded of the tremendous diversity of our country, and we might reflect that this diversity results from and reinforces our liberty.
It should go without saying that democracy in the states is only part of the story of American self-government; in providing for the national defense, promoting and regulating a national and international economy, and securing the basic rights all Americans enjoy, there is an important federal role. But if the states have been known to work injustice, so has the federal government. The power to do wrong is an unavoidable concomitant of the power to do right. As Tocqueville noted long ago, it is in the states and the communities they foster that the sovereignty of the people ceases to be an abstraction and can be seen in practice. It is no accident that those who would minimize the role of the states typically appeal to the least democratic branch of our whole system: the federal courts.
In his implicit challenge to the legitimacy of the Electoral College vote, then, Al Gore aims to change after the fact not only the rules for counting ballots in Florida, but the very Constitution. "Every four years there is one day when the people have their say," Gore began his televised speech on November 27. Not in my state: We vote several times a year on different propositions, and we elect numerous local and state officers, as well as members of Congress, in between presidential years. That's democracy, and compared with Gore's scenario -- where a hundred million citizens vote in a quadrennial plebiscite for a single central ruler -- I think it's a pretty good thing.
James R. Stoner Jr. is an associate professor of political science at Louisiana State University.