The 2000 Outcome: Blame Federalism

by JOHN MARK HANSEN

The Washington Post, December 01, 2001, page A25

The findings by a consortium of leading media organizations, including The Post, on the disputed ballots in Florida have brought a new round of debate on dimpled chads, butterfly ballots and the question of whether the U.S. Supreme Court handed the election to George W. Bush. The search for blame (by those who consider the election's outcome blameworthy) will no doubt go on for years. But it should not obscure the real source of Bush's victory: It is the institution of federalism, upon which the republic was founded.

Federalism isn't fair, at least in terms of giving equal weight to every citizen's vote. Without the strong federalist bias of the electoral system, Florida's vote wouldn't have been decisive; Al Gore would have won without it. The 2000 presidential election produced the first electoral college anomaly in more than a century. Bush, of course, lost the popular vote by a margin of about 540,000 out of 101 million ballots cast, but he captured 271 electoral votes to Al Gore's 267.

The possibility of an electoral college anomaly normally arises because the 51 separate presidential elections are "winner-take-all." But in fact, winner-take-all had little do with the Bush victory, which was produced not by close wins in Bush states and runaway losses in Gore states but by federalism. The electoral vote for each state equals the number in its congressional delegation. Because of federalism, each state has two senators, no matter its size, and as a result, the electoral college systematically overvalues the votes of citizens of small states.

In 2000, the electoral college bias toward the small states was decisive for Bush. If it did not exist, we would not have had to await the final tally in Florida: On the morning of Nov. 8, Gore would have been president-elect (and the Bush campaign would have been anxiously pursuing recounts). Suppose each state's votes in the electoral college equaled the number of its members in the House of Representatives. Then the total electoral vote would be 436 -- 435 members of the House plus one elector from the District of Columbia -- and an electoral college majority would require 219 electoral votes. On the morning after Election Day, Bush, who had won 29 states, would have had 188 electoral votes. Gore, with 19 states plus the District, would have had 220. The election would have been decided for Gore, no matter how Florida and Oregon came out.

Fortunately for Bush, the Constitution ties the electoral vote to representation in Congress and not to population. The Founders could have decided otherwise. Originally designed to filter popular sentiment through the better judgment of the electors, the electoral college could have functioned equally well whether electoral votes were allocated to states by population or by congressional representation. That the Founders decided as they did reflects the high principles and pragmatic compromises that produced congressional bicameralism and the representation of states in the Senate.

Whether by intention or not, in doing so, the Founders also multiplied the representational defects of American federalism. The small states in fact are already overrepresented in both houses of Congress.

In the House of Representatives, the bias is slight. The Constitution gives each state at least one representative, regardless of population, and the current apportionment formula gives a marginal advantage to small states.

But in the Senate, the small states are greatly overrepresented. In effect, the senatorial vote in Wyoming is worth 56 times the vote in California, 34 times the vote in New York and 23 times the vote in Illinois.

The representational defects of American federalism might matter little were it not that small states are much less diverse, much more rural and, lately and historically, appreciably more Republican than the large states.

As election reform moves gingerly onto the congressional agenda, the debate should not lose sight of the larger issue of the 2000 presidential contest. The key issue for the country is not just the sovereignty of the popular vote, an important consideration in itself. It is also the extent and limits of American federalism, and whether a system that already gives major advantages to citizens of small states in Congress should also give a special advantage to small states in the vote for president.


The writer is a professor of government at Harvard.