And the verdict is…

After hours of contemplation, aided by 48 comments on the post detailing my “great debate” between Option A and Option B, I decided today on what to do with my class schedule for the semester. My choice?

Option C.

Explanation after the jump. :)

First, a bit of previously undisclosed background information is needed. I didn’t mention it in my earlier post, but in addition to the 13 credits I’d already decided on, there was a 14th credit I already knew I could sign up for: a 1-credit “directed reading” with Professor Kaveny. You see, last semester, I wrote a paper for her “Mercy & Justice” class about the moral culpability, or lack thereof, borne by an attacker who causes unintended civilian casualties while carrying out a legitimate self-defense raid against an enemy that has deliberately placed civilians in the legitimate target area (or has deliberately moved legitimate targets into a civilian area) precisely in order to cause the very moral dilemma at issue. Professor Kaveny told me she thought my paper could be publishable with a bit more work, and said she’d be happy to continue working on it with me this semester as a 1-credit directed reading.

I didn’t mention this previously because I didn’t think it was relevant, since none of the available 2-credit courses fit into my schedule, and I need 16 to graduate. So, in my case, 13+3+1 is effectively the same as 13+3. They both equal graduation. And I didn’t think 13+2+1 was a viable option.

This morning, however, I had a brainstorm after reading PenguinSix’s comment: “Can’t you do a directed reading for 3 hours? Just write a paper and be done with it?” The answer to that question is no, because there’s no such thing as a 3-credit directed reading. But, I thought to myself, what about a 2-credit directed reading? Y’see, for months, I’ve had an idea for a research paper floating around in my head, but no outlet for it. The topic: a defense of the Electoral College. (Basically, a much, much longer version of this blog post.) I wanted to do it last semester as my final paper for Professor Mayer’s Election Law class (which had both an exam option and a paper option), but he felt it was too public policy and political science-oriented to be suitable for a grade in that class. So I dropped the idea — until this morning, when PenguinSix’s comment got me thinking. Could I do the Electoral College paper as a 2-credit directed reading for Mayer, and combine that with my 1-credit directed reading for Kaveny to reach the magical number 16?

Normally, the answer would again be no, because you aren’t generally allowed to do two separate directed readings in the same semester. But I figured it was worth a shot, so I e-mailed the requisite folks in the law-school administration and pleaded my case. I emphasized my enthusiasm for the 2-credit topic, but explained that I simply wouldn’t have time to do it if I were also taking an additional class. Moreover, I didn’t foresee a terrible conflict between the two, given the limited nature of what the 1-credit directed reading entails.

To my surprise, I was granted an exception, and allowed to do both directed readings. Now I just had to get Professor Mayer’s approval — which I did at around 2:20 PM, less than three hours before the final deadline to drop or add classes.

So, here’s what my final schedule looks like:

Morality and the Law, Prof. Rice, 2:00 – 3:15 (3 credits)

Constitutional Criminal Procedure, Prof. Snead, 8:00 – 9:15 (3 credits)
Evidence, Prof. Smithburn, 11:00 – 12:50 (4 credits)
Constitutional Law II, Prof. Mason, 1:00 – 2:15 (3 credits)

NOTHING… woohoo!!! :)

Directed Readings
Electoral College paper, Prof. Mayer (2 credits)
Israel/Lebanon paper, Prof. Kaveny (1 credit)

As I said, it was PenguinSix’s comment that inspired me to think of this plan; without it, I don’t think it would have crossed my mind. Moreover, it was also a series of blog comments that finally convinced me to stick it out and take Evidence. So, to review: the blog has made me famous, it has gotten me a job, and now it has determined my schedule for my final semester of law school. Basically, the blog is running my life. :)

Anyway, as for the schedule… I like it. I really, really like it. The Tuesday-Thursday late morning/early afternoon schedule sucks, of course; I don’t know whether I’ll routinely eat lunch at 10:30 AM or during class. But otherwise, it’s a very good schedule. The 8:00 AM class is actually a good thing, as I explained here, since it (and, more precisely, Becky) will get me to school for my other classes on Tuesdays and Thursdays. Academically, I’m actively looking forward to all of the classes except Evidence, and that one I grimly recognize as a necessary evil, sort of like eating my vegetables or cleaning the cats’ litter box. (Actually, I like most vegetables, but that’s beside the point.) And while the two papers won’t be a walk in the park by any means, I think I’ll actually enjoy working on them, especially the Electoral College one. Now I just have to avoid the procrastination bug that so often bites me, and get to work on them in the early part of the semester.

In fact, to that end, I think I’ll use this blog post to type out the first draft version of my opening few paragraphs of the Electoral College paper, which I was literally writing in my head while waiting for the bus this afternoon. Mind you, this is having done no research whatsoever, so it will doubtless change a lot. :) But at least, after writing this, I will be able to officially say that I’ve “started” — which, considering it won’t be due until late April or early May, makes this probably the earliest I’ve started on an assignment in my entire life:

In the minds of many observers, the 2000 presidential election was the ultimate argument against the Electoral College. For the first time since 1888, the popular-vote winner lost the electoral vote, and the people’s second-favorite candidate became president. Adding insult to injury, the electoral vote was itself extremely close, and the decisive state was even closer. Thus, for the first time since 1876, an inversion between the electoral and popular votes coincided with a protracted dispute over the Electoral College winner, and for the first time ever, the dispute was settled not by Congress or a congressionally appointed body, but by the United States Supreme Court. All things considered, the 2000 election became Exhibit A in many arguments for the elimination of the Electoral College.

It is possible, however, to take precisely the opposite view: that the 2000 presidential election was the ultimate argument for retaining the Electoral College. This position is not sexy or politically correct; it is rooted in bald practicality, not democratic idealism. Yet it has considerable merit. A national popular vote system may be a good idea in principle, but in reality, it would become a nightmare in a close election like the one in 2000.

It is commonly assumed that Al Gore “won” the 2000 popular vote; indeed, the opening paragraph of this paper assumes it. This assumption is very probably correct. Gore’s margin, however, was barely one-half of a percent of the votes cast. Such a margin would be close enough to trigger a recount in many states. It looks like a landslide, however, compared to John Kennedy’s 0.16% margin over Richard Nixon in 1960. That would be close enough to trigger a recount virtually anywhere.

In any plausible electoral system based on the national popular vote, the 1960 presidential election — and any other election similarly close or closer — would produce a nationwide recount. Such an event would create controversy and legal wrangling on an almost unimaginable scale. Every alleged anomaly, everywhere, would become the subject of legal action, because it would no longer matter whether a specific state was itself close. Florida was hardly the only state where voting and vote-counting anomalies occurred in 2000, but the anomalies in California, South Dakota and elsewhere were not litigated because those states were won in landslides. In a national popular-vote system, by contrast, every close presidential election would be a nationwide free-for-all. Every state and county courthouse in the country would become the front line in a pitched battle over a razor-close vote. And there would be no built-in mechanism to definitively end it all — no meeting of the electors at which the 538 votes that matter are finally cast, no congressional tally of those votes to conclusively choose the president and vice president.

If the dispute over Florida’s electors proved anything, it is that accurately measuring the will of millions of voters is very, very difficult. And yet Florida’s vote total was just under 6 million; the difficulties would become far greater if we needed an accurate national count of more than 100 million votes. Multiple recounts and countless court challenges in individual states and counties would produce a wide variety of different “final” results, perhaps with different winners. Without the ceremonial certitude of the Electoral College meeting on the third Monday in December, these challenges could drag on indefinitely, with state and federal judges extending deadlines in the name of “counting every vote.” What if “every vote” is not counted to everyone’s satisfaction by January 20? Which “winner” is inaugurated?

Many steps can and should be taken to improve the accuracy of our voting system, regardless of whether the Electoral College is retained. Ultimately, however, it is — and always will be — impossible to measure the will of hundreds of millions of voters with perfect accuracy. It is quite possible, however, to measure the will of 538 voters with perfect accuracy. Therein lies the underappreciated beauty of the Electoral College.

The Electoral Collge always gives us a president. Very occasionally, in a very close election, it may give us the “wrong” president. But it always gives us a president, and does so in a timely fashion, well before the January 20 inauguration. It may be politically incorrect to defend a system that sometimes fails to accurately reflect the popular will, but as long as inversions of the electoral and popular vote remain rare and limited to very close elections — ones in which the popular will is hardly overwhelming, and may indeed by quite unclear — such an imperfect system is vastly preferable to the even more imperfect alternative of a national popular vote that could, in a razor-close election, produce a true legitimacy crisis that would threaten to seriously undermine the presidency itself.

As I said: first draft (hence my not worrying right now about the massive run-on sentence at the end of the last paragraph), and I’ve done no research yet. Suggestions and research tips (e.g., have you seen a good article that discusses this issue? tell me!) are welcome, along with vigorous debate (like I needed to tell you that… heh).

12 Responses to “And the verdict is…”

  1. Brendan Loy says:

    Immediate criticism of my own first draft: it contains five “, however,”s in the course of seven paragraphs. Heh.

  2. KC says:

    I think your paper might benefit from considering some counter-arguments (that’s about the nicest way I can put it).

  3. Brendan Loy says:

    Um, well yeah, it’s going to be (at least) a 30-page paper, so it’s just possible I might consider some counterarguments that don’t show up in the first seven paragraphs. :)

    I mean, I’m not going to introduce the paper with the opening paragraph, “Before I begin, here are some counterarguments…” Obviously I’m going to open it by making my argument. That doesn’t mean I won’t later address the counterarguments.

  4. gahrie says:

    Well as someone who firmly believes that we have strayed too far from our republican foundation towards democracy, I’ll be interested to read what you come up with.

  5. Nadine says:

    AN EXCELLENT HAIL MARY of a course choice analysis!
    This is the sort of insightful analysis that a future judge needs.

  6. Ed (sfv) says:

    As part of your thesis, you can point out that each state gets to apportion their votes (think Maine). There is more inherent flexibility in the system than appears at first glance.

    Look at the movement in CA last year toward Electoral reapportionment for some interesting angles (filler) upon which to pontificate.

  7. Sean says:

    Gore “probably” won the popular vote? I assume you mean in Florida, because nationwide he got half a million more!

    PS No thesis is complete without either supporting or rejecting anarchist doctrine. I got to do a little of both in my Honors Thesis. Man, anarchists are fun.

  8. Brendan Loy says:

    Sean, no, I mean the national popular vote. My point is that Gore very probably won the popular vote, but we don’t know for sure, because there was no recount, even though he won by approximately 0.5%, which would be close enough to trigger a recount in many states. However, because there is actually no such thing as a “national popular vote” (there is simply an amalgamation of various state-by-state results, but it means absolutely nothing officially, and thus there is no need to recount it if it’s close), we can’t say with certainty that Gore won it. It’s very unlikely that recounts and lawsuits would have been able to overturn a 500,000-vote margin… but with more than 100,000,000 votes cast, it’s not impossible. Imagine if every alleged instance of voter fraud, voter error, machine error, etc. etc. in every state, including big states like New York and California, had been relevant, which it would be in a national popular-vote election. The Republicans probably would not have been able to come up with enough successful challenges to overcome a 0.5% margin, but I strongly suspect they would have tried.

  9. Wobbly H says:

    Have fun being lectured about the evils of sodomy all year by Professor Rice.

  10. PenguinSix says:

    Bush still wins Florida in the recount studies months after the election, fwiw.

  11. David K. says:

    PenguinSix, while that may be true, Brendan’s point is I think along the lines of if we went for popular vote that there would have been more disputes in some of the other states that were also close.

  12. Brendan Loy says:

    Actually, David, my point is that if we went for the popular vote, there would have been disputes in all states, regardless of whether the state itself was close. For example, any allegations of voting anomalies in California would have been aggressively investigated and litigated, becuase although, say, 250,000 extra votes in California doesn’t give Bush the state, that doesn’t matter; who “wins the state” no longer matters. What matters is the national popular vote, and 250,000 votes in California (or anywhere else) would cut Gore’s national margin in half.