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DEBATE CLUB 10/25/04

Should Colorado split its electoral votes?

Richard Epstein and Sanford Levinson debate.

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Next Tuesday, Coloradans may well decide the presidential election between Bush and Kerry. If the state's citizens pass Amendment 36, Colorado's nine electoral votes will be divided proportionally among the candidates. Because polls indicate a very close race, the candidate who wins might do so by grabbing five of those votes while the other top candidate scores four.

Colorado wouldn't be the first state to split its votes--Maine and Nebraska already do. But Amendment 36 is freighted with constitutional ambiguities, like whether voters, and not the state's legislature, can change the way its electors are appointed and whether the outcome of the presidential election can rest on an amendment voted on that same day.

Should Colorado be allowed to split its electoral votes?

Richard A. Epstein Richard A. Epstein is the James Parker Hall Distinguished Service Professor of Law at the University of Chicago and the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution. Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law and Professor of Government at the University of Texas and the editor of Torture: A Collection.

Epstein: 10/25/04, 09:04 AM
The Colorado Ballot Initiative seeks to amend the Colorado Constitution by referendum in order to introduce a system of proportional representation for the selection of presidential electors. The provision requires five turgid pages of prose to work out. But the case for its rejection on a myriad of grounds is evident simply by looking at some of the key terms of its first section.

The first question is whether the introduction of new rules for the electoral college could be done by referendum at all. Article II, Section 1, clause 2 of the Constitution provides in so many words that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress:" That provision on its face appears to exclude the use of any referendum to change the procedures by which electors are chosen. The referendum tries to forestall this legislative dominance by noting that the Colorado constitution allows the people of Colorado "the right to act in place" of the legislature in any legislative matter," from which they draw the inference that the referendum can change the process. But the choice of procedure here is one of federal, not state constitutional law. The states were selected in our constitutional order as the instrument of control in order to insulate the process from the direct influence of popular majorities. The referendum simply cannot bootstrap itself into a place of prominence so long as the United States Constitution operates as the supreme law of the land.

Next, the case for this extraordinary intervention is said to rest on the proposition that "each person's vote is entitled to equal dignity and should count equally." No one in his right mind would dispute the truth of the general proposition. But its relevance is quite another matter. The current winner take all system does not give any individual two votes while fellow citizens have only one. Each vote counts equally in the application of the winner-take-all rule. Most voting rules have difficulty in aggregating individual preferences into collective decisions. But such is life in the big city. The same problem applies to both winner-take-all and proportional representation, each with different quirks. The only question is which rule has the better properties. Dignity is no part of this exercise.

Nor is it clear that the winner-take-all rule invites political parties to campaign elsewhere. Everything depends on what the vote is. If Colorado is a battleground state, then the winner-takes-all rule means that it gets more than its fair share of attention, for the shift of a few votes alters the entire balance. But if it is not, then neither rule will bring the campaign to the state. If a flat-out campaign could shift the popular vote by as much as 10 percent, then at most one electoral vote will move. Big deal.

Finally, a system like this, if adopted and constitutional, should be introduced only on a prospective basis. Yet this referendum takes the grotesque position that it should "in the strongest possible terms" no less, govern the current election. It is just madness to run a campaign without knowledge of the relevant rules. On grounds of sheer chutzpah alone this referendum should be rejected.

Levinson: 10/25/04, 03:11 PM
Richard, you make one powerful argument and several more debatable ones. The powerful argument, of course, is the textual one, that the Constitution does indeed say "each State shall appoint, in such Manner as the Legislature thereof may direct...." Proponents of the amendment will definitely have the burden of providing a strong argument that it does not, as its opponents, following Richard's lead, will argue, "mean what it clearly says." Were I hired to represent the state, assuming it passes, I would begin by noting that the Constitution also clearly assumes that the President will be male, given its use of the gendered pronoun "he" or "his"--e.g. Article II, Section 1, Clause 7, "The President shall. . . Receive for his services...", clause 8, "Before he enter on the Execution of his office..." Today, of course, no one would argue that this disqualifies Hillary Clinton from the office of the Presidency (even if we can be confident that Richard would vote against her on many other grounds); instead, all of us would say that in "modern English," "he" or "his" is a universal designator (except, say, for bathrooms). So why shouldn't we read "Legislature" in a more capacious say to mean "that aspect of government most reliable in representing the will of the people," which is, after all, one plausible notion of the "republican form of government" guaranteed to states by Article IV?

I do not suggest this is a knock-down argument. Hans Linde, the distinguished former justice of the Oregon Supreme Court (and, not at all coincidentally, equally distinguished professor of law) has argued that referenda in fact violate the "Republican Form of Government" clause precisely because they remove the filter of elected represntatives from the basically mob-like decisions of the people. One has to confront this as a serious argument. If, however, one accepts, say, that California's (and other Western states) reliance on referenda does not take them out of the category of "republican governments," then one has to address the possibility that the best interpretation of "Legislature" is along the lines suggested above.

As someone who has been very critical of "one person-one vote" as being a "mantra" rather than a satisfactorily theorized notion, I have no trouble agreeing that winner-take-all doesn't violate it. On the other hand, Reynolds v. Sims includes among the criteria of 14th Amendment fairness a notion of "equal representation," and it is certainly possible to argue that the winner-take-all feature deprives me, as a Democrat in Texas, of any representation at all in the peculiar multi-member one-time-only representative assembly that we call the Electoral College. Would you be equally complacent if, say, Tom DeLay got his Texas minions to pass a law stating that there would be no legislative districts in the Texas state legislature and that the senators and representatives would be elected in an at large election. That would, presumably, produce a 100% Republican legislature. If, as I hope, you do see something problematic in this, then you should at least admit that there is something that people of good will can believe to be problematic about 100% Electoral College delegations in states that are in fact split between Democrats and Republicans.

Finally, as to prospectivity: It is certainly true that decisions as to how to vote are not being made behind a Rawlsian "veil of ignorance." I heard only this past weekend that a Colorado friend will not take advantage of early voting in order to wait until the last possible moment to see what the polls say with regard to whether Bush or Kerry is leading in Colorado. But, then, Bush v. Gore wasn't prospective either, and you have been a notable and voluble defender of that egregious decision.

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Epstein: 10/26/04, 09:57 AM
Sandy, let me respond to your arguments, which have the virtue of being novel, and the weakness of being, I fear, incorrect. Your first point is that we should read the Constitution in a more capacious way so as to allow a popular referendum do the work of legislation. The analogy you offer, however, takes my breath away. For years I was always instructed to think that "he" in general enactments referred to both men and women unless the context required. There is nothing in the Constitution to indicate that it has any bar against women taking office, or even voting. Quite the opposite, on these matters, its approach is to avoid any generalized solution and to take its cue from the states as to how matters ought to proceed. Thus in Article I, section 2, the Constitution does not set out the qualifications for voters to the House of Representatives, but simply directs that "the Electors in each state shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature." The provision was adopted at a time when universal suffrage was not the norm. Its purpose was to avoid divisive debates on matters that could not be happily resolved in light of the variety of options. The solution therefore was intended to make the House more democratic than the Senate, which at that time was selected by the State Legislature under Article I, Section 3 (before this was changed by the language of the seventeenth amendment).

At this point the flaw in your argument should be apparent. The he/she split has no structural implications and is wholly consistent with the text of the Constitution. The use of the referendum to replace the legislature has enormous significance, and if it can be done on this point, then it can be done on all others where the state legislature has a key role, including the two that I just mentioned. But the shift in the locus of power is so enormous that it is clear that the constitution, which contemplated a guarded democracy, could not tolerate this result.

This point, I think underlies the force of Hans Linde's point that the Republican form of government clause forbids the use of referendum to decide important matters. In early political theory, the difference between democracy and republic was critical. The latter was a proper and well balanced form of government that lined up with aristocracy and monarchy. Democracy was a degenerate form of government where the popular will was expressed in unmediated form, subject to a multitude of passions (to use that eighteenth century word) that lined up with oligarchy and tyranny. Since direct voting was avoided at every possible turn, the same could be said here. To be sure, the Supreme Court never took the hard line position on referenda, but that is not decisive here. For we are not trying to evaluate what counts as a Republican government, we are dealing with the hopeless conflation of the legislature and the people who select its members.

Let me comment briefly on two other matters. First, I think that it would not be acceptable to rig Texas any more than has been done to secure at large elections that Republicans would win. But here the winner-take-all has been a long feature of the United States and has in general correlated well but imperfectly with popular vote. I am far happier with anomalies that are consistent with tradition (and thus avoid political opportunism) than new innovations that reek of opportunism.

Last I do defend Bush v. Gore, but not on the dreadful equal protection argument. I prefer the more sensible ground that the Florida Supreme Court so butchered the interpretation of its own statute that it, not the Florida legislature, set the ground rules for the recount. That approach highlights the great disservice done by the Florida Supreme Court. It does not excuse the equal protection argument that commended itself to five (or seven, depending on who counts) Justices on the Supreme Court. Bush v. Gore was retroactive because it was litigation, and there was no other choice. In Colorado we could avoid the gamesmanship that, if replicated in other contexts could create a genuine nightmare.

Levinson: 10/26/04, 02:37 PM
I have no doubt that you were indeed instructed that "he," "him," and "his" were, generally speaking, universal designators, but I don't think that is conclusive as to what the framers assumed about participation rights at the end of the 18th century. My real purpose in suggesting the analogy, as I said, was not to offer a "knock-down argument," for I can easily understand why you reject it, but, rather, to argue that constitutional language is more supple than your original presentation seemed to allow for.

Indeed, your new argument really looks more at history than at text in that you say that the framers were well aware of direct democracy and explicitly chose to reject it. And, moreover, so should we, at least normatively, even if you shy away from accepting Hans Linde's constitutional argument that the courts should strike down state referenda as being profoundly "unrepublican." I think you are probably right that many of the people in Philadelphia were profoundly suspicious of direct democracy. This is certainly a theme in Madison's work. But, of course, other Americans of the time were not. I confess that I have not done the research myself, but I wonder if any historical evidence exists, one way or the other, than someone pointed to the "Legislature Clause" and explicitly said, either approvingly or disapprovingly, "this takes away power from the people and monopolizes it in our state legislature." Even if one found such evidence, of course, one would still have to demonstrate why we should be stuck with the dead hand of the past, given our rejection, say, of the plain text and original history regarding the Contract Clause. (I presume we agree on this last clause, though you presumably lament it in a way that I do not.) Our disagreement on the merits is beside the point, inasmuch as my major point is that one cannot possibly understand American constitutional practice as being exhausted by textual or historical arguments.

For better or worse, American society has become markedly more democratic, in every sense, since 1787, and referenda are thought to be perfectly consistent with democracy and/or "a republican form of government" by most, though not all, constitutional lawyers and even most of those few judges who have actually spoken to the point in decisions. Why aren't you willing to go all the way with Hans Linde and actually rule the long-established practices, especially in the Western states, unconstitutional? Is there a notion of "easement" or "adverse possession" regarding long-established practices, even if they are indefensible?

One other point: The Colorado referendum, though characterized as an "amendment," is better viewed as "legislation," in the sense that it does not disable the Colorado legislature, should it wish to do so, from reverting to the old practice. Rather, it establishes a new default rule, of a disaggregated vote, and it puts the onus on the legislature to override clearly expressed popular opinion (and the legal authority that comes with passage of a referendum). If this represents a version of "all power to the people," it is a very soft one, because the legislature can quickly respond. In this sense, it's very different from the notorious amendment treated in Romer v. Evans, the whole point of which was to take power away from the legislature unless and until the people of Colorado gave it back to them in a subsequent constitutional amendment.

On another matter entirely, it's not clear to me why retroactivity is more permissible in "litigation" than through decisions of a legislature or the people. Obviously, the Supreme Court over 200 years ago limited the Ex Post Facto clause to criminal law. And, insofar as the Contract Clause still has some bite, that presumably is a second limitation on retroactive "impairment" rather than foreward-looking placing of terms on future contracts. So the decision as to prospectivity or retroactivity, save for criminal law and regulation of contracts, seems far more a prudential one rather than a constitutional one. So I don't see why the Constitution should be read to prevent the people of Colorado from deciding that the rule should be changed instantly. There is no plausible argument that someone has an individual constitutional right to a winner-take-all system rather than a proportionality system. Indeed, if I were going to argue "constitutional right," I would continue to invoke Reynolds v. Sims and its statement that "fair and effective representation for all citizens [is] concededly the basic aim of legislative apportionment." There is no "effective representation" at all for the 49% that will vote for Bush or Kerry in one or another state. You admit that winner-take-all would be unconstitutional with regard to the Texas legislature. All you offer to defend the Electoral College is "tradition." To put it mildly, you have not won your justified fame in the American legal academy for your loyalty to Edmund Burke or Michael Oakeshott; instead, you (typically) are an unusually hard-headed rationalist analyst of our unexamined presumptions and "traditional" ways of doing things.

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Epstein: 10/27/04, 09:16 AM
This debate has moved in directions that I had not anticipated when I made my initial posting. My first assumption was that you would concede the unconstitutionality of the Colorado referendum proposal and then argue that the legislature of the state should adopt just that system on the ground that proportional representation is a better way to allocate the state's electoral vote than the current winner-take-all system. I would have responded that changes like that should be made nationwide, not locally, to keep uniformity within the system, whereupon we could have had a debate over the question of whether the electoral college serves useful functions or whether it should be replaced by a popular vote that reflects (in good winner-take-all style) the preferences of a popular democracy.

What I forgot in this debate is the major threat to coherent constitutional interpretation. When the document (which contains more than its fair share of ambiguities) gets something clear, but clear in a way that modernists do not like, their tendency is to argue that words are more pliable ("supple" is your term of choice) than the narrow minded textualist would otherwise believe. So we are told that "commerce" means manufacture and agriculture, because that is the only way in which we could have the systematic nationwide control needed to run a modern social democracy. But here the term is not capable of that misreading. Legislature means one thing and the people by referendum mean another. To take the constitutional debate further than this is in general a mistake.

So why then, we ask, do we refer to the history and the philosophy of the time. Here I think that the usual purpose is to show that on matters of importance the Framers meant what they said and said what they meant, so that we do not have to fight our way between two stools. That seems clearly the case here, but less with the clause on republican government. For that we have to be aware that the loose usage of today was not the same as the standard usage then. We look outside the text not to find ways to alter its meaning, but to fulfill the question of how terms were understood by the ordinary intelligent reader of the time. I do not shy away from Linde's argument. I think that he was right. It was the Supreme Court that shied away. But Sandy does have a point: adverse possession has its place in constitutional law. But that cuts the opposite way here. After all, the novelty of this referendum gets no shelter on this principle.

Levinson: 10/27/04, 04:47 PM
Your latest post indicates that you believe that changes like those contemplated by Colorado "should be made nationwide, not locally, to keep uniformity within the system." I have two immediate responses: The first is that I am certainly tempted by constitutional arguments--or even statutory arguments based on the Voting Rights Act Amendments of 1982--that winner-take-all is indeed illegal and thus requires a national rule. The constitutional argument would track my earlier invocations of the passage in Reynolds v. Sims about the duty to protect "effective representation." I presume, though, that you are not sympathetic to such a judicial ruling, since it would, obviously, require the Court's overturning long-established, and presumably accepted, practices. So you are presumably saying either that Congress has the power, under its power to regulate the "manner" of elections, or, obviously, that one could procure such a change through Article V constitutional amendment.

Unless one believes that winner-take-all is unconstitutional per se, I see no reason at all to say that the Constitution requires uniformity in allocating electoral votes, and I am not even sure why such a noted defender of federalism and protected realms of state autonomy against national legislation would find it a good idea. After all, we don't have uniformity even as we speak. Maine and Nebraska have rejected winner-take-all, and the Republic still stands (at least until next Tuesday). All things considered, I would probably prefer a single national solution, so long as it is one that gets rid of winner-take-all in favor of some kind of proportional system. (What kind, of course, needs much additional debate. Allocation by congressional district simply gives added rewards to Tom DeLay and others who engage in brutally partisan gerrymanders.)

Needless to say, I also need to say something about your views of my first-order constitutional interpretations. Let me begin simply by saying that I don't think my arguments, described by you, not altogether complimentarily, as demonstrating "ingenuity," violate any professional norms of lawyering. The harsh reality, that you as a descriptivist must admit, is that the practicing bar--and judges--have simply rejected the kind of reliance on text and history that you proclaim. American constitutional history cannot be understood if one does not pay due heed to the role of "ingenuity" in bringing about what was thought, by litigators, judges, legislators, and, ultimately, the public, to create a "more perfect Union." As you know, I think there is much to your reading of the original history of the Commerce Clause. But you equally know that there is not the slightest probability that the Supreme Court of the United States will choose to reverse its decisive rejection of such arguments between 1937 and 1942. Nor should it. Even Justice Thomas might well be hesitant to do so, as much as he is willing to take on the role of intellectual provocateur in some of his concurring or dissenting opinions. I have never presented my arguments as "knock-down" ones. All I mean to suggest is that they are perfectly respectable within the operating norms of the American bar and, therefore, enable one to reach certain goals that one finds highly attractive, such as bettering the actual structure of an increasingly dangerously dysfunctional American constitutional order.

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Epstein: 10/28/04, 09:12 AM
Let me offer a brief response to both your points.

The first question has to do with the question of whether we follow the lead of two small states to jettison winner take all nationwide. My own view is that there is a heavy burden on those who would want to switch, and that it is not enough to say that there is something wrong with winner take all unless there is some way to show that the alternative will lead to a better result. Remember this is not a case where we are choosing a congressional delegation from a large state. This is a case where there is always one winner and one loser for four years in a presidential election. The only question is how to aggregate to get to that winner. There is no possibility that the candidate who gets 55 percent of the vote gets to be president for 26 of the next 48 months. The advantage of the electoral college is that it quarantines error. Think of what would happen if we had to have a nation wide recount because the difference between candidates is less than 1 percent in the popular vote. After the bloodletting in Florida, we could not reach any result that would get us a president, and I am reluctant to march with you down any road to institutional paralysis in the hope to introduce proportionality in what is in the end always a winner-take-all outcome. Nor do I want to have huge battles in individual states in close elections as to whether we have reached the cut off points that could shift one vote this way or that. Finality matters as much or more than justice. Keep with the status quo, please, Sandy.

On constitutional interpretation, I think that you confuse two very distinct questions. First, the issue is whether the court on some question, such as the meaning of the commerce clause, got it right. The huge sleight of hand in cases like Wickard v. Filburn is not defensible under any standard mode of interpretation, whether we look to text, structure, history, or even function. Why the Court should want to move heaven and earth to support nationwide cartels is to me beyond comprehension, and any effort to introduce new doctrines which rely on such ingenuity is something that I hope you would join with me in opposing. That said, you are wrong to conflate this with the distinct question of whether it is sensible to reverse field after a clearly erroneous doctrine is in place for a long period time. My view here is cut back by increments, and if you do, you will discover, to use your phrase, that the republic will not end if it is returned to its original structure.

Levinson: 10/28/04, 02:00 PM
There is something almost pathetic about the argument that the United States can't afford to risk the turmoil of genuinely nationwide elections, where We the People would actually choose the President. No other major country elects its chief executive, whether president or prime minister, by anything resembling our baroque 18th century Electoral College System. Canada conducts nationwide elections by paper ballot, and the ballots are counted and the results known by the next day. Yes, I know that Canada is, by population, tiny, at least as compared with the United States, but all that really suggests is that we have to put greater resources into the way we conduct elections.

I think you are far too complacent about the potential turmoil linked with the Electoral College: "The advantage of the electoral college is that it quarantines error." But as we saw in 2000, and may well see this year, the diseases that are quarantined may be especially toxic insofar as the losers, for very good reason, totally mistrust an electoral process that is controlled by political partisans who will do anything to make sure that their candidate wins. To be sure, this is an independent point: That is, the cure for this particular problem may not be jettisoning the Electoral College so much as taking control of elections away from egregious partisans like Katherine Harris. But you are also far too complacent about the consequences of the Electoral College itself. The fact that it allows the election of the demonstrated second choice is, in some ways, only the least of it, since one can legitimately argue that campaign strategy is increasingly based on the securing a majority of the Electoral College rather than simply rolling up nationwide majorities. But you overlook the fact that it is only blind luck that prevented the elections of 1948 and 1968, when third-party candidates won electoral votes, from being thrown into the House of Representatives. And that would have triggered the most truly lunatic part of the American political process, the one-state/one-vote rule that would allow Alaska to offset California, Vermont to offset New York. As it happens, I would be delighted to allow Bernie Sanders of Vermont to offset my home state of Texas, but the fact that that would serve my partisan desires makes it no more legitimate.

One of the most objectionable features of the Electoral College, incidentally, is the totally unwarranted increment of extra political power it gives small states. Even if one could defend a state-by-state electoral process instead of a single nationwide ballot, it is impossible to figure out why a Wyoming voter should have something like 17 times the voting power of a Californian. The Electoral College historically served to protect slavery: Thomas Jefferson, for example, would not have been elected in 1800 had it not been for the bonus provided slave states. Now it serves, in effect, to protect anti-urban Americans. If we are to have the Electoral College, we should at least level the playing field and adopt the same kind of equal-population norm that structures all other American elections. But, as a practical matter, one cannot even think of reforming the Electoral College because of the equally indefensible Article V, which would allow thirteen selfish small states to block any reform at all. This is just one more illustration of the dysfunctionality of the 1787 Constitution.

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Epstein: 10/29/04, 07:54 AM
It is something a pity, Sandy, that we are only getting to the real question of institutional design now because I think that there is much on the merits to say for your position. But before commenting on the situation, let me clear away a bit of underbrush. All this would happen after a national debate. It would require some kind of a constitutional amendment. It is different in kind from the creeping pro rata proposals that are made in Colorado and which would create real awkwardness if adopted on a piecemeal basis. The sensible thing is to first work the way through to a comprehensive scheme and then put it in place comprehensively.

So do we want it? You frame the issue of whether we should displace evil with good. I see it as one in which the gains, if any, from the new state of affairs have to be balanced off against the costs associated with the transition, and the difficulties if any that are introduced in the new system. In doing all this, it is useful to note that most past elections have gone to the candidate with the highest popular vote so that the public uneasiness is not there. That said, the popular vote is often an artifact of the campaign strategies. A candidate could have a huge majority in one state, not campaign there, win somewhere else by a hair, and lose the popular vote. Perhaps that is what happened last time.

So what about the future? If we had a general popular election, everyone would hit hard in those states that had the majority of vote. No one would go to Ohio; George Bush would shake the trees in Texas and John Kerry would hit the large metropolitan areas. Wyoming would not be on the political map at all. So we could never figure out who would have won in 2000 if the rules announced that popular vote was all that mattered. The campaigns would be so different from the ones that occurred.

This then suggests, Sandy, one unhappy objection. I don't think that we could get this amendment through precisely because it takes away power from small states that don't deserve it. They can do the electoral calculations as well as you do. This cost of transition makes me uneasy for I fear that the new constitutional order will show the signs of compromise that could easily make it more complicated and worse than the system we currently have. Recall that the Colorado referendum contains six dense pages of stuff. I also think that the quarantine issue matters, and indeed in general believe that final decisions are very important and that any system that leads to uncertainty in outcomes should be resisted. In sum, I see more pain in the transition than you, more risk, and less gain. Hence I would stand pat for now, and wait until next Wednesday to reconsider. We have surely opened a can of worms. We may not be able to shut it within our lifetimes. What a note on which to end!

Levinson: 10/29/04, 11:31 AM
I regret that I waited until yesterday to find how late-18th-century dictionaries actually defined "legislature," given your reliance, at least in part, on "original understanding." Consider, though, that the 8th edition of Samuel Johnson's A Dictionary of the English Language, published in 1786, defined "legislature" simply as "The power that makes laws," which therefore could reasonably apply to the people-acting-in-referenda in states that allow that. The fact that nobody in 1786 could have conceived of such is of no more importance than the fact that they didn't conceive of an air force. But no one, of course, denies that the Constitution, which refers only to armies and navies, easily authorizes Congress to fund an air force. (I wish I had thought of this latter example on Monday, which I would have proffered instead of my "he," "his," and "him" example.)

Although I support the constitutionality of the Colorado referendum, and for political reasons would probably vote for it were I a Coloradan (after all, Kerry appears to be behind right now in Colorado!), I take it that both of us agree that something so fundamental as redesigning our electoral system--and I take comfort in your concession that there may indeed be some problems with our present system--should be done in a relatively disinterested way. The best way of assuring such disinterest is to maximize uncertainty as to who would benefit in the future.

Whatever happens on Tuesday--assuming, optimistically, that we will know by Wednesday morning who won the election--I hope that there will be genuinely serious discussion of how we can assure a greater integrity in the election process. We both agree that getting rid of the Electoral College, as a practical matter, may simply be impossible, given the operation of Article V and the advantage it gives to holdout states (or even single houses in bicameral state legislatures). Unfortunately, it would also require an amendment to get rid of the true "ticking time bomb" of our polity, which is the one-state/one-vote rule regarding the way the House of Representatives would have to break a deadlock. We are lucky that there is no significant third-party this year. If news reports about the coming fragmentation of the Republican Party are true insofar as they foresee a fight to the death between the libertarian wing so ably represented by Richard, and the religiously-dominated social conservative wing, we might see, in 2008, a serious third party capable of getting some electoral votes. Are we doomed to watch the train derail because Article V, and the selfishness of small states (and the Republican Party that currently controls the House) will prevent even this necessary reform? I wish I had even the slightest confidence that the answer to this question were no.

Still, even in the absence of constitutional amendment, we can focus on taking the conduct of elections away from obvious partisans and giving it over to as disinterested a group of civil servants as we can create. The sad fact is that each candidate risks being perceived as illegitimate if he wins a razor-edge election. Democrats like myself have no faith whatsoever in the integrity of the Florida process and the partisan Republican secretary of state who appears to be doing Jeb Bush's bidding. I assume that Bush supporters have their own "hermeneutics of suspicion" with regard to the election process, presumably with regard to the possibility of fraudulent registrations. An Israeli friend of mine is visiting Austin right now, and he is amazed at the way we conduct elections. Whatever else can be said of the Israeli political system, there have been surprisingly few allegations of unfairness in the actual conduct of elections. Would that we could do as well!

It's been a pleasure to exchange ideas with one of the most consistently interesting people in the legal academy, and I thank Legal Affairs for making it possible.

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