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Time to Change the Unit Rule

A Commentary By Larry Sabato

Want to fix an election? No, I'm not proposing any Election Day shenanigans, but rather some preventive maintenance for a very old machine.

Our system of electing a President is nothing short of chaotic, and it can be confusing even to the most seasoned political observer. Goodness knows, it could be done better, from shortening the election season to better organizing the nominating calendar to reshaping the Electoral College. All these aspects of the election process are being widely discussed, and maybe before too long, we'll act on some proposed changes.

But there is one concealed time bomb buried in the Constitution that is receiving no attention at all. This is no minor hitch. In fact, it's a disaster awaiting us, if not this November then almost certainly in some future November.

And it could even happen this fall. It's early, but right now John McCain is doing well in New Hampshire (4 electoral votes), which President Bush lost in 2004. Barack Obama is doing well in Colorado (9), Iowa (5), and New Mexico (5), all of which John Kerry lost in 2004. If those four states switch sides, with the other states remaining where they were on election night four years ago, then the Electoral College is tied: 269 to 269. It's easy to imagine that this scenario could occur. What is unimaginable is what happens afterwards.

The potential electoral calamity is connected to the Electoral College. Adopted in 1789, before the establishment of political parties and before most citizens had the right to vote, the Electoral College was created for a variety of reasons--some purely political, others based upon the mix of reasonable compromise and firm principle.

Once instituted, it did not take long for the Electoral College to stir controversy. In 1796 John Adams defeated Thomas Jefferson for the presidency by just three electoral votes, with Jefferson becoming vice president due to his second-place finish. Four years later, Jefferson ran again, against incumbent President Adams. This time around, Jefferson and his ticket-mate, Aaron Burr, came out on top in the Electoral College. At that time, each elector voted for two men, and the top two vote-getters were supposed to serve as President and Vice President. But the Jefferson electors had voted for both men, so Jefferson and Burr each had 73 of 138 electoral votes.

While Burr had been the choice for vice president and not president, his political ambition kept him from stepping aside. It took thirty-six ballots in the U.S. House of Representatives to select Thomas Jefferson as our third president. This fiasco prompted the Twelfth Amendment to the Constitution, which, among other provisions, requires electors to vote for presidential and vice presidential candidates separately.

More than two centuries later, despite the many storms that have engulfed presidential elections, the Twelfth Amendment still marks the most significant change to the Electoral College in all of American history--a fact that alone suggests that some rethinking may be in order. Indeed, the Electoral College today works much as it has since the 1800s. As long as one presidential ticket has received an absolute majority of the electoral votes, the election is over.

If no one has received a majority for president and/or for vice president--the Twelfth Amendment requires the separate counting of ballots for each office--then the House of Representatives gathers to elect a President and the Senate to elect a Vice President. The House votes by state, with each delegation--regardless of size--having a single vote. This is the critical, so-called unit rule, which was acceptable to the Founders since the United States was being established as a federal country, a league of friendly states with only a modestly empowered central government in Washington.

Under the unit rule, a simple majority of the states is required to elect a president in the House. (An absolute majority of the Senate, with senators voting individually, is required to elect a vice president.) Originally, this meant that seven of the thirteen states could pick a President in case of deadlock; in 2008, twenty-six of the fifty states would be required.

Let's focus on the practical effect of the unit rule, which has been employed twice in U.S. history, the aforementioned 1800 election and the equally messy 1824 contest eventually won by John Quincy Adams over Andrew Jackson and two other candidates. In 1800 and 1824, population disparities among the handful of U.S. states were smaller, and Americans were much more accepting of elite control and a lack of popular democracy as well.

Our contemporary country has very different values. Think about what House selection of a President would mean today. Gargantuan California would have the same single vote in choosing the new Chief Executive as sparsely populated Wyoming, even though California has about 70 times the population. The votes of the mega-states of Florida, New York, and Texas could be canceled out by the tiny populations of Rhode Island, South Dakota, and Montana.

Furthermore, large state delegations could internally deadlock via tie votes, and parliamentary maneuvers when the big-state delegations are polled could confuse matters further. Some large states might be deprived even of their single vote for the Presidency. Tens of millions of people could be disfranchised in this fashion.

Meanwhile, all the small states with single House members will certainly be counted. The smaller the House delegation, the more likely the state's House members will be able to reach agreement or at least finish their tally. All pigs would be equal, but in this odd Orwellian case, the tiny pigs would be more equal than the huge ones.

How could a President elected in this fashion govern effectively? If you thought the public reaction to the Supreme Court's Bush v. Gore decision in 2000 was bitter, just wait until the unintended consequences of the unit rule provision of the Constitution come into play one day.

Easily 90 percent or more of the American people are unaware of this constitutional sleight of hand, and it will come as a great shock to them in the future. People will ask, why was nothing done in advance to forestall a foreseeable presidential deadlock? As usual, I fear we'll reform the unit rule only after enduring a wholly unnecessary crisis.

The preemptive answer is as obvious as it is simple. Abolish the unit rule, and let every U.S. representative cast a ballot as he or she sees fit--a ballot for which each House member will be held accountable by constituents in the next election. This is far closer to the ideals of popular democracy than the distortion of democracy called the unit rule. The "one-representative, one-vote" system also approximates the well established and widely accepted modern principle of "one-person, one-vote" for redistricting purposes.

This is a nonpartisan and uncontroversial housekeeping reform. Congress should be able to pass it quickly and submit it to the state legislatures for swift ratification.

For once, let's identify a serious structural deficiency and correct it before, as a nation, we're forced to pay a large, painful price. Wouldn't that be a welcome change?

Larry J. Sabato is the director of the Center for Politics at the University of Virginia.

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