L OOKING TO H ISTORY
In his classic survey of American history and culture, Alexis de
Tocqueville alluded to the inherent difficulties in designing a method from which to choose a national executive As he wrote:
The elective system for selecting a head of state has faced criticism for fueling personal ambition and igniting intense passions for power This often leads individuals to resort to force when they lack legitimate claims, undermining the integrity of the democratic process.
18 A LEXIS DE T OCQUEVILLE , D EMOCRACY IN A MERICA 127-28 (George Lawrence trans., J.P Mayer ed., 1969) (1832)
The core challenge, as he articulated, was identifying an electoral method that genuinely reflects the people's will while minimizing emotional upheaval and uncertainty.
During the Federal Convention of 1787, delegates faced significant challenges regarding the selection of the executive branch Numerous proposals emerged, highlighting the complexities of choosing an executive: Should the selection be made by Congress, through popular vote, by state executives or legislatures, or by electors chosen within districts? Additionally, debates arose over the structure and duration of the executive's tenure, considering options such as a single executive elected by Congress for a seven-year term, a plural executive, or alternatives suggested by figures like Alexander Hamilton.
James Madison highlighted the complexities involved in establishing the general government of the United States, particularly emphasizing the unique challenges faced by the Executive branch He noted that every aspect related to the Executive was influenced by these difficulties, reflecting the intricate nature of the founding process This statement was made during the Virginia Convention on June 12, 1788, as documented in the Records of the Federal Convention of 1787.
On June 1, a method of selection was proposed and approved the following day, but it was quickly discarded in favor of other procedures By July 17, Congress-approved election was favored with a unanimous vote of ten to zero However, on July 24, delegates reintroduced the previously discarded procedure, only to defeat it once more in the subsequent weeks.
Early discussions regarding the method of direct election were met with limited support among delegates However, on July 17, the topic resurfaced, leading to a debate that ultimately resulted in the defeat of direct election by a vote of nine to one.
On July 19, two days after initial discussions, the topic of direct election was revisited, with Gouverneur Morris and James Madison supporting the idea James Wilson noted that public sentiment was shifting towards an election by the people, either directly or indirectly However, on August 24, during a detailed examination of the Committee of Detail's report, the convention ultimately rejected the proposal for direct voting by a vote of nine to two.
In Robert Yates’ journal, it is noted that each governor would receive votes equivalent to their state's representation in the Senate elections However, Elbridge Gerry's motion proposing this method was overwhelmingly rejected, with a vote tally of ten to one.
On July 17, a proposal regarding the selection of the executive was rejected by an eight to two vote, but delegates reversed their decision two days later, opting for electors appointed by state legislatures However, this decision did not resolve the issue, as the electoral plan was reconsidered and ultimately rejected on July 24, leading to the reinstatement of election by Congress In this context, Wilson proposed that fifteen members from Congress, chosen by lottery, would then select the executive.
25 See 1 F ARRAND , R ECORDS , supra note 20, at 230
26 See id at 244 (Madison’s journal) This plan was ultimately rejected on June 19 2
On June 18, various proposals for a single executive chosen for life by electors selected by the people in districts were discussed but ultimately rejected These ideas frequently resurfaced in debates, highlighting the ongoing consideration of different governance structures.
Ultimately, the delegates settled on a single executive and the now- familiar idea of the Electoral College 28
The Electoral College concept emerged briefly in the summer of 1787, when James Wilson suggested appointing electors to fill the executive office in early June Following this, Alexander Hamilton put forth a similar proposal on June 18.
Both proposals for the election of the executive were either ignored or defeated, with Luther Martin's motion for state-appointed electors being overwhelmingly rejected The convention then unanimously approved a proposal for the executive to be chosen by the national legislature However, the debate continued, and on July 19, Oliver Ellsworth introduced a similar proposal, which was approved by eight states to two Despite this approval, discussions persisted, leading the Committee of Eleven to propose the Electoral College on September 4.
The convention members faced significant challenges in selecting the method for choosing the President of the United States, as highlighted by James Wilson during the Pennsylvania ratification debate Wilson noted that the convention was particularly perplexed by this aspect of the plan, indicating the complexities and deliberations involved in reaching a consensus.
Farrand to comment more than a century later: “Whatever difficul-
27 See 2 F ARRAND , R ECORDS , supra note 20, at 292 (Madison’s journal)
28 The delegates agreed on a single executive and reelection on July 17 Id at 22
29 1 F ARRAND , R ECORDS , supra note 20, at 80 (Madison’s journal)
32 2 F ARRAND , R ECORDS , supra note 20, at 32 (Madison’s journal)
37 The Committee of Eleven, as the delegates were called, included eleven states:
New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Mary- land, Virginia, North Carolina, South Carolina, and Georgia Id at 496-97 (Madison’s journal)
39 2 D EBATES ON THE A DOPTION OF THE F EDERAL C ONSTITUTION 511 (Jonathan Elliot ed., reprint ed 1987); Letter from James Madison to Thomas Jefferson (Oct 24, 1787), in 3
The delegates faced significant challenges in determining an effective method for electing the executive, a debate that persisted until September 1787 when they reached a compromise While other issues were present, they were overshadowed by the complexities of presidential selection This article aims to explore three critical questions: how the delegates resolved the presidential selection dilemma, the reasoning behind their chosen procedure, and the potential pitfalls associated with this plan.
The first question simply demands a close look at the constitu- tional text 43 On its face, the text is fairly clear States, by any way
The Framers of the United States Constitution dedicated significant time and effort to establishing an effective method for selecting a President, as noted by Max Farrand and Edward S Corwin This challenge was one of the most complex issues faced during the 1787 Convention, highlighting the enduring nature of the difficulties surrounding presidential selection.
41 Letter from James Madison to Henry Lee (Jan 14, 1825), in 3 F ARRAND ,
T HE E LECTORAL C OLLEGE IN M ODERN T IMES
Throughout history, numerous proposals to replace the electoral college system have emerged, reflecting its complexity and perceived obsolescence Alexander Bickel noted that the electoral college has often been the subject of both humor and serious reform discussions The historical record supports the notion of reform, as the idea of direct presidential election was debated during the constitutional convention but ultimately rejected for various reasons Congressional discussions on this topic began as early as 1816, yet the push for direct popular election has remained a favored reform among advocates.
73 See Feerick, supra note 5, at 42-43; Victor Williams & Alison M MacDonald, Re- thinking Article II, Section I and Its Twelfth Amendment Restatement: Challenging Our Nation’s Malapportioned, Undemocratic Presidential Election Systems, 77 M ARQ L R EV
The Electoral College, initially established as a compromise to satisfy slaveholding interests, has faced calls for abolition In 1979, the U.S Senate engaged in significant debates regarding this issue; however, the proposal was narrowly defeated with a vote of fifty-one to forty-eight.
74 B ICKEL , supra note 6, at 10; see also William Josephson & Beverly J Ross, Repair- ing the Electoral College, 22 J L EGIS 145, 149 n.24 (1996) (documenting various reform proposals made through the years)
75 See 2 F ARRAND , R ECORDS , supra note 20, at 29-31, 56-57, 111 (Madison’s journal)
76 Its opponents argued, for example, that this method was impracticable, 1
In Madison's journal, it is noted that the general populace was often poorly informed, making them susceptible to deception (F ARRAND, R ECORDS, supra note 20, at 135) This lack of information led to a situation where voters would consistently choose the same candidates within their states, disproportionately amplifying the influence of larger states in elections (id at 137, 392) Additionally, there was a prevailing concern that organized groups, like the Society of Cincinnati, could manipulate public opinion and sway electoral outcomes (id.).
It was clear that certain societies should not exert significant influence over government decisions Additionally, there were ongoing debates regarding the issue of slavery and other regional challenges, along with concerns about population imbalances among different states.
77 N EAL R P EIRCE & L AWRENCE D L ONGLEY , T HE P EOPLE ’ S P RESIDENT : T HE
The Electoral College has been a significant aspect of American history, alongside alternative voting methods like the District System and the Proportional Plan Introduced in 1800 and 1848 respectively, both proposals have garnered considerable support in discussions about electoral reform over the years.
The Electoral College's anachronicity has been a focal point for critical commentary, with much written that lacks positive insights This section does not aim to contribute further to the existing critiques, as it seems unlikely that new perspectives could emerge Instead, it recognizes the limitations of discussions surrounding the Electoral College.
The discussion on the Electoral College necessitates an examination of both reform proposals and the justifications provided by its defenders This analysis is divided into two sections: the first highlights four virtues attributed to the current system, while the second addresses four prevalent criticisms of the institution Throughout this exploration, we will also consider various reform proposals, both historical and contemporary In conclusion, although we find the critics' arguments unconvincing, we remain unsatisfied with the defenses of the College Before presenting our arguments in Part III, we will thoroughly assess the Electoral College, acknowledging both its strengths and weaknesses.
The Good College
Proponents of the Electoral College system advocate for its retention based on four main arguments They emphasize the historical context and challenges that led to the establishment of this institution, highlighting its role in balancing interests among diverse states and ensuring a fair representation in presidential elections.
78 See, e.g., A MERICAN B AR A SSOCIATION , E LECTING THE P RESIDENT : A R EPORT OF
The Commission on Electoral Reform (1967) concluded that although no method for electing a President is flawless, a direct, nationwide popular vote stands out as the most effective option available This perspective is further explored in Birch Bayh's commentary, "Reflections on the Electoral College."
R EV 333 (1968); Ronald A Dubner, The Electoral College: Proposed Changes, 21 SW L.J
269 (1967); Paul A Freund, Direct Election of the President: Issues and Answers, 56 A.B.A.
J 773 (1970); William T Gossett, Electing the President: New Hope for an Old Ideal, 53
A.B.A J 1103 (1967) But see J UDITH B EST , T HE C ASE A GAINST D IRECT E LECTION OF THE
P RESIDENT : A D EFENSE OF THE E LECTORAL C OLLEGE (1971); Albert J Rosenthal, Some
Doubts Concerning the Proposal to Elect the President by Direct Popular Vote, 14 V ILL L
79 P EIRCE & L ONGLEY , supra note 77, at 132, 144
80 See, e.g., Walter Clark, The Electoral College and Presidential Suffrage, 65 U P A
L R EV 737 (1917); Estes Kefauver, Proposed Changes in the Presidential Election System,
1 V AND L R EV 396 (1948); Sen John J Sparkman, Comment, Reflections on the Electoral
College, 13 V ILL L R EV 338 (1968); Wechsler, supra note 11, at 270; William Raspberry,
Post-Traumatic Suggestion, W ASH P OST , Jan 1, 2001, at A23
On districting, see Sen Karl E Mundt, Comment, Reflections on the Electoral College, 13
The primary concern regarding the proposed plan is its potential to facilitate gerrymandering, as highlighted by Corwin and Clark in their respective analyses Alexander Bickel also emphasized the implications of this issue in his commentary.
The Electoral College, similar to the Senate, effectively balances the symbolic aspirations of smaller states with the practical needs of larger ones, showcasing a rare harmony in human institutions.
A strong argument in favor of the Electoral College is its role in providing certainty following an election Judith Best emphasizes that "an electoral system should produce a definite, accepted winner and avoid prolonged contests and disputes that create uncertainty and public turmoil." This essential function is currently fulfilled by the Electoral College, ensuring a clear outcome and stability in the electoral process.
To its defenders, it does so in two ways One, it saves the nation
The article highlights that ambiguous outcomes can have significant effects, yet they provide necessary legitimacy, especially in closely contested elections Additionally, this legitimacy plays a crucial role in safeguarding the nation from the potential crisis associated with disputed elections.
Proposals for the direct election of the President raise significant concerns, primarily due to the potential for increased uncertainty in close elections Currently, legal disputes are managed on a state-by-state basis; however, a nationwide recount could complicate the electoral process further.
The College compels candidates to level their support, as noted by Corwin, who states that without a robust third party, the current electoral system effectively ensures that the candidate with the greatest popular backing prevails.
A compelling argument for maintaining the Electoral College lies in its historical effectiveness, as noted by Clinton Rossiter, who cautioned against hastily replacing a functioning system with an untested alternative Similarly, Alexander Bickel emphasized the importance of considering the potential risks of change, suggesting that the current structure, despite its imperfections, provides stability that should not be overlooked.
In a free and peaceful society, a clear and prompt election result for the national leader is an invaluable asset (Hardaway, 163) This highlights the significance of transparent electoral processes in maintaining democratic integrity (B EST, 210).
84 But see Robert D Brown, NO—The Electoral College Should Not Be Abolished, in
C ONTROVERSIAL I SSUES IN P RESIDENTIAL S ELECTION 212 (Gary L Rose ed., 2d ed 1994)
86 B EST , supra note 78, at 204 (“[T]here is no reason to believe the direct-election plan would increase the certainty in any close election.”)
87 See B ICKEL , supra note 6, at 32
The sudden abandonment of institutions can lead to unpredictable consequences that many may later regret, as highlighted by C Clinton Rossiter in "The American Presidency." This sentiment is echoed by Bickel, emphasizing the profound impact such actions can have.
It is beneficial to stay connected to institutions that may have evolved beyond their original intentions, as they test our resilience and creativity in adapting them for contemporary needs without altering their outward structure Martin Diamond emphasizes the importance of preserving the electoral college, citing its nearly two-century history of stable public acceptance, a sentiment echoed by many others.
The Big, Bad College
Faithless Electors
One of the lesser criticisms of the Electoral College is the issue of "faithless electors." A "faithless elector" refers to an elector who chooses to vote for a presidential candidate other than the one who won their state's election This raises concerns about the integrity of the electoral process, as it undermines the principle of representing the voters' choice.
Every voter possesses a constitutional right to cast an effective vote for President When an elector votes against the mandate of the voters, it can be interpreted as acting under the guise of state law, thereby undermining the voters' rights.
91 Martin Diamond, The Electoral College and the American Idea of Democracy, in
A S F AR R EPUBLICAN P RINCIPLES W ILL A DMIT : E SSAYS BY M ARTIN D IAMOND 2 (William A
92 See C ORWIN , supra note 40, at 66 (relying on “[t]he verdict of actual practice”);
W ALLACE S S AYRE & J UDITH H P ARRIS , V OTING FOR P RESIDENT : T HE E LECTORAL
The American political system, particularly the electoral college, faces scrutiny due to its known defects Advocates for reform must provide substantial evidence to justify changes, as untested alternatives may pose significant risks.
T AKE A LL : R EPORT OF THE T WENTIETH C ENTURY F UND T ASK F ORCE ON R EFORM OF THE
The ongoing debate surrounding election systems is heavily influenced by the enduring presence of the Electoral College, which, despite its associated risks and occasional controversies, has not experienced a significant failure in nearly a century This historical reliability fosters a sense of confidence among its proponents.
The present electoral system is not perfect To cure all its defects may be be- yond present skill
Despite its imperfections, our electoral system demonstrates resilience and functionality While some may emphasize its flaws, whether real or perceived, advocating for drastic changes in search of an idealized perfection, it is essential to prioritize practicality over theoretical consistency Major reforms are unnecessary if we value the system's ability to sustain itself rather than striving for unattainable ideals.
93 B ICKEL , supra note 6, at 34 of that constitutional right.” 94 This is another way of saying that, since 1796, electors have become “party dummies.” 95 Their role is but limited to registering the preference of state voters at large, nothing more 96
The faithless elector problem is frequently viewed as a minor flaw, or even a non-issue, within the Electoral College system Often referred to as a "specter," this problem has been a topic of discussion throughout the history of the Electoral College, raising questions about its significance and impact on the electoral process.
"Faithless electors" are a rare occurrence in U.S presidential elections, with Longley and Peirce noting that out of 21,291 electoral votes cast since 1796, only nine votes have been definitively cast against the expected candidate.
‘against instructions.’” 97 The statistical probability that a faithless elector would cast a decisive vote in a presidential election is ex- tremely low 98 Hence, the argument is about possibility, not probability
Second, remedies for the “faithless elector” are readily available
Only the most dedicated party members are chosen as electors, with many states enacting laws that require them to vote for their party's presidential nominee If faithless electors pose a significant issue, a simple constitutional amendment could implement automatic voting, assigning electoral votes directly to winning candidates rather than relying on electors There is also debate about whether electors were meant to operate independently of public opinion in their states This topic was notably addressed in the Supreme Court's ruling in Bush v Gore.
94 Albert J Rosenthal, The Constitution, Congress, and Presidential Elections, 67
M ICH L R EV 1, 26 (1968); see also Lawrence D Longley, YES—The Electoral College
Should be Abolished, in C ONTROVERSIAL I SSUES IN P RESIDENTIAL E LECTIONS , supra note
96 P ATRICK ET AL , supra note 55, at 167
97 L ONGLEY & P EIRCE , supra note 4, at 113
99 Developments in the Law—Elections, 88 H ARV L R EV 1111, 1152 (1975)
100 See Diamond, supra note 91, at 191
101 This particular provision came to be known as the Katzenbach Amendment See
Electoral College Reform: Hearings Before the Senate Judiciary Comm., 91st Cong 274
(1970) (statement of Nicholas deB Katzenbach)
The debate surrounding the intentions of the electors is highlighted by contrasting viewpoints; Feerick argues in favor of a specific interpretation (supra note 5, at 8-9), while Lucius Wilmerding Jr presents an opposing perspective in "The Electoral College" (1958) Additionally, John P Roche discusses the role of the Founding Fathers as a reform caucus in action in the American Political Science Review.
799, 810-11 (1961) made vastly clear, a constitutional right to vote for President is sim- ply nonexistent 103
For a second criticism, we look to none other than James Madison
In a letter to George Hay in 1823, it was emphasized that alongside the necessity of having a President, it is crucial for the elected leader to command respect and acceptance through their qualifications While the popular vote remains the most straightforward and widely recognized method for selecting a representative, it is essential that the chosen individual also possesses qualities that inspire confidence and compliance among the constituents.
Many Americans lack a clear understanding of the Electoral College, which raises concerns about its legitimacy as a mechanism for selecting the President An ABA commission on electoral reform has described the College as "archaic, undemocratic, complex, ambiguous, indirect, and dangerous," with some even labeling it a "deplorable political institution." This lack of comprehension among the populace is troubling, given that the Electoral College plays a crucial role in determining the legitimacy of the incoming President.
Defenders of the institution concede this point rather willingly, at least at first glance Martin Diamond, for example, writes that:
Perhaps the fear is that voters are baffled by the complexity of the
The Electoral College often perplexes voters, raising concerns about a fundamental democratic norm Surveys indicate that many citizens lack a clear understanding of the Electoral College's function and mechanics.
And yet, these concessions lead him away from the expected conclu- sions, for, as he proceeds, “[i]t all depends on what kind of knowledge
In the landmark case Bush v Gore, 531 U.S 98 (2000), the Supreme Court clarified that individual citizens do not possess a federal constitutional right to vote for presidential electors unless the state legislature designates a statewide election for appointing Electoral College members, as outlined in Article II, Section 1 of the U.S Constitution.
104 Letter from James Madison to George Hay (Aug 23, 1823), 3 F ARRAND , R ECORDS , supra note 20, at 458
106 Electing the President: Recommendations of the American Bar Association’s
Commission on Electoral College Reform, 53 A.B.A J 219, 220 (1967)
108 M ARTIN D IAMOND , T HE E LECTORAL C OLLEGE AND THE A MERICAN I DEA OF
In the context of democracy, it is understood that voters may lack detailed knowledge about the Electoral College; however, this ignorance does not diminish the significance or intention behind their votes, nor does it impact their acceptance of the electoral results.
Ideological Purity, the Minority President, and Contingencies
A third argument against the Electoral College looks to the le- gitimacy of the institution and modern democratic understandings
Many commentators argue for the abolition of the Electoral College in favor of a direct election system, citing voter confusion and the belief that popular vote selection is a more legitimate democratic approach While concerns about electoral legitimacy are minimal when the electoral and popular vote counts align, issues arise when they diverge, as seen in the controversial 2000 presidential election, raising questions about the legitimacy of the elected President and the institution of the Presidency itself.
Critics have focused their attention on the contingency plan designed for situations where a candidate fails to secure the necessary electoral votes This criticism primarily highlights the established procedures in place for such scenarios.
As we know, such a scenario would send the election to the House of
Representatives, where each state delegation would cast one vote 117
The electoral system's feature that has faced significant criticism is its potential to allow a single individual to cast the deciding vote in an election, which many find distasteful in a democratic context To address this concern, it is essential to implement measures that prevent such occurrences Even supporters of the Electoral College acknowledge this issue, with some, like Diamond, expressing apprehension about the possibility of an election being determined by the House of Representatives.
The second variation—and more popular criticism—even has its own name: Senator Kefauver has labeled the possibility that the
Electoral College votes and the popular vote do not match the
118 J Hampton Dougherty, The Law of the Constitution in Relation to the Election of
119 Richard C Baker, On Becoming President by One Vote, 48 A.B.A J 455, 456
In 1977, Martin Diamond testified before the U.S Senate's Subcommittee on the Constitution, discussing Senator Birch Bayh's proposed amendment to abolish the Electoral College in favor of direct presidential elections His testimony emphasized the importance of preserving the Electoral College as a mechanism that ensures a balanced representation of states in the electoral process Diamond argued that direct election could undermine the federal structure and diminish the role of smaller states in national politics.
E LECTORAL C OLLEGE 9 (1977) [hereinafter Testimony of Martin Diamond]
The election of an executive who fails to secure a majority of the popular vote has been compared to the "Great San Andreas Earthquake," highlighting its potential instability Representative Emanuel Celler, during his tenure as Chairman of the House Judiciary Committee, criticized this electoral outcome as "horrible," "unsporting," and "dangerous," emphasizing the serious implications of a minority President on the democratic process.
John Feerick warned that if the candidate who wins the popular vote loses the presidential election, it could lead to widespread resentment, unrest, and public demand for reform, creating a crisis-like atmosphere.
The criticism of the Electoral College is framed by the principles established in Baker v Carr and the "one person, one vote" doctrine This argument can be understood in two ways First, as noted by Neal Peirce and Lawrence Longley, minorities often face the loss of their votes, which are effectively taken away and added to those of the majority, favoring a candidate opposed by the minority Second, Alexander Bickel emphasized the need for ideological purity in the electoral system, arguing that since the Constitution mandates equal apportionment, it is essential to reapportion the presidency accordingly.
123 A BBOTT & L EVINE , supra note 1, at 1
Professor Paul J Piccard suggested that even the victorious party may feel uncomfortable with the current system and could lean towards direct popular elections for the President This sentiment is echoed in discussions about the electoral process, where concerns are raised that the existing system might allow a candidate who does not receive the most votes to win, undermining democratic legitimacy It is essential that the candidate with the highest popular votes is assured victory to maintain the integrity of the electoral system.
The legitimacy of an American presidency is fundamentally challenged when a president is elected by the electoral college despite receiving fewer popular votes than their opponent This scenario could have disastrous implications for the effectiveness and acceptance of contemporary leadership in the United States.
128 Reynolds v Sims, 377 U.S 533, 557-58 (1964) (stating that election systems should give equal weight to each vote cast)
129 P EIRCE & L ONGLEY , supra note 77, at 131 (quoting Missouri Senator Thomas Hart Benton, 41 A NNALS OF C ONG 170 (1824)); see Longley, supra note 94, at 200
The historical context and precarious inception of the Electoral College raise important considerations regarding its relevance today As noted by Estes Kefauver in 1962, the Electoral College has undergone significant scrutiny and reform Additionally, Wechsler emphasizes that the necessity for federal protection of popular participation in elections is now universally acknowledged, rendering previous debates on the subject largely academic.
The legitimacy of the Presidency is questioned when the Electoral College results in an unexpected winner Supporters of the Electoral College provide several defenses, with three key arguments standing out First, they argue that the concept of a "runner-up" in elections is not inherently problematic.
The presidency may be viewed as largely a "fluke," leading to minimal concern over a divergent vote Ultimately, the American people would likely accept the situation and adapt, regardless of whether a "runner-up" emerges.
President] out the next time, if they did not like what he did Flukes happen [T]hat is as close to Russian roulette as a pimple is to cancer.” 131
Second, commentators question the reflexive coupling of American democracy with majority rule Hardaway argues, for example, that
“[a] winner in the Electoral College who fails to win the most popular votes is no more a ‘wrong president’ than legislation passed by the
Senate is the ‘wrong legislation,’ or an amendment passed by the
States (and not by popular vote), is the ‘wrong amendment.’” 132
Polsby and Wildavsky contend that the fundamental aspects of the current governmental system are largely sound, emphasizing that "majority rule" functions within a framework of "checks and balances" rather than in isolation.
Critics of a minority presidency often question its legitimacy, but there are compelling counterarguments One key point is that the Electoral College influences campaign strategies nationwide, making it challenging to assess how a candidate who loses the popular vote would perform in an alternative voting system Thus, separating the popular vote from its electoral context can be seen as both unfair and misleading.
The argument asserts that the popular vote is a flawed and ultimately ineffective metric for determining election outcomes In contrast, the role of the Electoral College becomes crucial, especially in the aftermath of a tightly contested election, as highlighted by Alexander Bickel.
131 Testimony of Martin Diamond, supra note 121, at 9
133 P OLSBY & W ILDAVSKY , supra note 3, at 252; see also Brown, supra note 84, at 221-
22 (contending that the College preserves important principles, such as federalism, minor- ity rights, and republicanism)
134 See H ARDAWAY , supra note 6, at 121-22
135 See Brown, supra note 84, at 212-13 (stating that the Electoral College method of electing the President is democratic and constitutional because it safeguards minority rights)
Unit Voting
A common criticism often offered in favor of the eradication of the
The Electoral College diminishes the voting power of political minorities, including voters of color and supporters of third-party candidates Critics argue that the winner-take-all system wastes votes, especially when contrasted with a district-based or direct voting system.
The argument is disarmingly simple The unit-voting system em- ployed by most states—which is not constitutionally required—
Votes are deemed "wasted" when a candidate wins by a larger margin than required to secure victory in a specific unit This wastage occurs not only due to the surplus of votes but also because the voters, despite enjoying the outcome, acknowledge that such results are inherent to the electoral process.
The Electoral College system, particularly the unit vote rule, significantly impacts the representation of third parties and political minorities This rule causes votes for losing candidates to be considered "wasted," as they do not receive any electoral votes despite garnering some support In states where the unit is defined as the entire state, rather than using a proportional system, third parties struggle to gain traction against the dominant Republican and Democratic parties This structural disadvantage highlights the challenges faced by political minorities in the electoral process.
In the 1992 election, Ross Perot's third-party candidacy attracted 19,741,657 votes, as detailed in Appendix Table 1 Despite this significant support, Perot did not secure any electoral votes, leaving many of his supporters feeling that their votes were ultimately wasted.
Appendix Table 2 illustrates the potential impact of a Perot candidacy under a proportional distribution system, showing that he would have received 102 electoral votes While this total would not have been enough for Perot to win the Presidency, it highlights the significant influence he and his party could have had in shaping the outcome The current electoral system tends to diminish the ability of third parties to act as brokers and kingmakers in presidential elections.
To address this issue effectively, it is crucial to eliminate the winner-take-all aspect of the electoral system rather than merely altering the size of the electoral unit.
Most states allocate all their electoral votes to the candidate who wins the state, even if the victory is by a slim margin Abbott and Levine highlight how this winner-take-all system can lead to wasted votes.
Imagine a scenario where the winning candidate secures the twelve largest states, gaining their 279 electors by a narrow margin of just 10,000 votes in each state, resulting in a total plurality of 120,000 votes In contrast, the losing candidate dominates the remaining thirty-eight states, achieving an average victory margin of 100,000 votes per state, which totals a staggering plurality of 3,800,000 votes This illustrates how a candidate can win the presidency by a small margin in key states while losing significantly in others.
3,680,000 more votes nationwide, the other candidate would win the electoral college vote 279 to 259!
In this context, the discussion centers more on the advantages of proportional representation rather than the unit rule, highlighting the benefits of this electoral system compared to a first-past-the-post approach.
The unit rule plays a crucial role in maintaining stability within the political system by emphasizing the significance of two-party politics Without this rule, a strong third party or candidate could disrupt the chances of either major party achieving a majority in the Electoral College.
A third-party candidate’s impact does not necessarily depend upon capturing 20 percent of the electorate’s imagination as Perot did in
In 1992, Appendix Table 3 demonstrates that a third-party candidate, like Perot in 1996, can capture 10 percent of the popular vote and significantly impact the Electoral College outcome This scenario shows that such a candidate can obstruct either major party from achieving a majority, potentially hindering or postponing a candidate's electoral success, as seen with Clinton.
The unit rule significantly undermines the voting power of third-party supporters compared to a proportional distribution system, fostering stability in the two-party system, a feature that elicits mixed opinions While the effects of the Electoral College on third parties are evident, its impact on voters of color is less straightforward Contrary to the belief that the Electoral College is biased against voters of color, our analysis reveals that it actually benefits certain groups, particularly Latinos and Latinas, while disadvantaging others, notably African Americans in the Southern states.
While there is no conclusive evidence that the Electoral College consistently disadvantages voters of color, including African-American voters in the South, it is indicated that there are instances where the College may negatively impact these voters.
143 We thank Heather Gerken for this observation See S AMUEL I SSACHAROFF ET AL ,
T HE L AW OF D EMOCRACY 1095 (2d ed 2001) (explaining the “First Past the Post” or plural- ity vote system)
144 See, e.g., A BBOTT & L EVINE , supra note 1, at 90-99; L ONGLEY & P EIRCE , supra note 4, at 154-61; Matthew M Hoffman, The Illegitimate President: Minority Vote Dilution and the Electoral College, 105 Y ALE L.J 935 (1996); Lawrence D Longley, The Electoral
College and the Representation of Minorities, in T HE P RESIDENT & THE P UBLIC (Doris A
Graber ed., 1982); Lloyd B Omdahl, The Negro Stake in the Electoral College, 2 B LACK
P OLITICIAN 29, 62-63 (1971) this is because they live in a state that is disadvantaged by the Col- lege 145
Many commentators argue that the Electoral College diminishes the voting power of voters of color, particularly African Americans in the South, who often feel their presidential votes have little impact on their state's electoral outcome This perspective, highlighting the disproportionate and negative effects of the Electoral College on the political preferences of voters of color, has gained significant traction in both academic and public discussions.
The Electoral College, particularly through its unit-vote or winner-take-all method, is argued by some scholars to disadvantage voters of color, especially African Americans in the South This system often leads to the marginalization of political minorities, as their voting preferences diverge from the majority For instance, African American voters, who predominantly support the Democratic Party, find their votes submerged by the majority of White voters who favor the Republican Party Consequently, unless their electoral preferences align with those of their White neighbors, African Americans in the South rarely have a say in selecting presidential electors, rendering their votes "virtually meaningless" in the presidential election process.
E LECTIONS AND L EGITIMACY
The legitimacy of the Electoral College is increasingly questioned as our understanding of democracy evolves beyond the founding generation's perspective Advocates for its abolition argue that popular elections have gained greater significance, reflecting a shift in our democratic values Additionally, there is a belief that the federal government should assume a more prominent role in presidential elections, reducing the influence of individual states This debate raises crucial questions about the essence of democratic legitimacy, focusing on whether it resides with the individual, the state, or the federal government, and how political rights should be distributed among these entities.
The disparities in voting power stem from geographic differences rather than racial ones, as highlighted by Longley and Peirce While the Electoral College does disadvantage some voters of color, particularly African Americans, it is essential to acknowledge that this disadvantage is rooted in historical state-sponsored racism and residential segregation African Americans were forcibly brought to the South, and the Electoral College's impact extends beyond this group, adversely affecting all residents of the region Conversely, the College can have beneficial effects for racial groups, including African Americans, residing outside the South.
157 Id those three entities, which one should be the ultimate bearer of po- litical rights?
The discussion surrounding the Electoral College is fundamentally rooted in two key principles: the importance of federalism and the right to vote Central to this debate is the strong belief in the principle of "one person, one vote," which underscores the democratic ideal of equal representation for all citizens.
The constitutional basis for states’ rights and our federal structure is solid, yet these commitments often conflict with one another The central issue revolves around determining which commitment takes precedence in the ongoing debate over the Electoral College.
College has raged on for as long as it has, in great part, because a resolution to this question has proven very difficult
The ongoing national debate surrounding the Electoral College is not unexpected, as it embodies a historical compromise aimed at balancing state and federal interests In today's political landscape, we continue to grapple with defining the appropriate boundaries between these two levels of governance, albeit to a lesser degree.
That struggle has not changed
Our understanding of the right to vote has evolved significantly from that of the founding generation, largely influenced by the Court’s reapportionment revolution The Electoral College reflects the founding generation's hesitance towards direct democracy Despite our differing views on individual voting rights, we continue to grapple with the same fundamental question of the extent of our democratic commitments, much like the founders did.
In this Part, we support our contention that the fight over the
The Electoral College represents a tension between popular democracy and federalism Recent judicial cases highlight a resurgence of commitment to states' rights, illustrating the ongoing struggle within our constitutional framework to define the appropriate boundaries between state and federal responsibilities.
III.B., we reveal the Court’s struggle with the right to vote.
Our Federalism
In the last decade, the Supreme Court has engaged in a vigorous debate regarding the proper limits between state and federal power
These debates have taken place within a doctrinal context that ex-
The Supreme Court has examined the scope of Congress's regulatory authority under the Commerce Clause, the enforcement of equality through Section Five of the Fourteenth Amendment, and the implications of the Tenth Amendment on congressional mandates to state legislatures Additionally, the Court has reinforced the principle of state sovereignty as outlined in the Eleventh Amendment, imposing strict limitations on Congress's capacity to enable private individuals to sue states in both state and federal courts.
The ongoing debate regarding federalism is characterized by a general consensus that our modern interpretation has evolved from that of the founding generation Most justices, except for Justice Clarence Thomas, recognize that social, economic, and political changes warrant a broader federal authority than originally intended by the Framers The primary points of contention between the two sides revolve around the appropriate limitations on federal power beyond judicial scrutiny and the effectiveness of judicial review concerning federal legislation that impacts federalism.
In recent years, competing judicial positions have emerged, notably illustrated in the case of Garcia v Metropolitan Transit Authority The Court's majority contended that judicial review is not an appropriate tool for restricting Congress's powers under the Commerce Clause Justice Blackmun emphasized that states should seek protection through the political process, stating, “the principal means chosen by the Framers lies in the structure of the Federal Government itself.” This perspective aligns with what is termed a "neo-Federalist" view, reflecting the original intentions of the Framers regarding the balance of power.
159 U.S C ONST art I, § 8, cl 3; see, e.g., United States v Morrison, 529 U.S 598 (2000); United States v Lopez, 514 U.S 549 (1995)
160 See, e.g., Bd of Trs v Garrett, 531 U.S 356 (2001); United States v Morrison,
529 U.S 598 (2000); Kimel v Fla Bd of Regents, 528 U.S 62 (2000); City of Boerne v Flo- res, 521 U.S 507 (1997)
161 See, e.g., Printz v United States, 521 U.S 898 (1997); New York v United States,
162 See, e.g., Alden v Maine, 527 U.S 706 (1999); Seminole Tribe of Fla v Florida,
163 Compare Garcia v San Antonio Metro Transit Auth., 469 U.S 528, 543-45 (1985)
(Blackmun, J.), with id at 583-84 (O’Connor, J., dissenting)
164 Id at 548 (“We doubt that courts ultimately can identify principled constitutional limitations on the scope of Congress’ Commerce Clause powers over the States ”)
166 Id at 550 “It is no novelty to observe that the composition of the Federal Gov- ernment was designed in large part to protect the States from overreaching by Congress.”
Id at 550-51 at the founding who were in favor of a strong national power and a lesser role for the states
As then-Justice William Rehnquist predicted in his dissent in
The limited conception of federalism and the judicial role, as outlined by Garcia, was short-lived, particularly highlighted in United States v Lopez, where the Court, for the first time since the New Deal, invalidated a congressional act under the interstate commerce clause, reflecting a "neo-anti-Federalist" perspective Notably, five Justices have articulated various justifications for their rigorous enforcement of states' rights against congressional authority Justice O’Connor's opinion in Gregory v Ashcroft serves as a recent and concise defense of federalism within case law.
Gregory, the Court provides three leading defenses
The Court emphasizes that a key advantage of the federalist system is its capacity to safeguard individual liberty This assertion reflects the majority's reliance on foundational principles that highlight the importance of protecting personal freedoms within the framework of federalism.
James Madison believed that establishing two levels of government would safeguard liberty by compelling both state and federal authorities to vie for the support of the populace This competition would ultimately enhance the protection of individual freedoms.
169 See Farber, supra note 15, at 1135 (“For the student of constitutional history, much of the rhetoric in recent Supreme Court opinions is startling Rather than echoing
Alexander Hamilton, James Madison, and John Marshall, the Court’s language often seems more reminiscent of the views of their opponents.”) For an argument that the
The Court, known for referencing Madison and Hamilton on federalism, should embody their principles by adopting a more historical, nuanced, and contextual interpretation of their ideologies, as discussed by David McGowan in "Ethos in Law and History: Alexander Hamilton, the Federalist, and the Court."
The Supreme Court has acknowledged the principle of federalism, which grants states considerable discretion to address complex policy issues, as long as they adhere to the minimum standards set by the Fourteenth Amendment This was highlighted in cases such as Smith v Robbins and Lopez, emphasizing the importance of state experimentation in finding effective solutions.
The federalist system primarily serves as a safeguard against government power abuses By ensuring the separation and independence of the branches of the Federal Government, it effectively prevents any single branch from amassing excessive power, thereby maintaining a healthy balance of authority.
States and the Federal Government will reduce the risk of tyranny and abuse from either front
The Framers believed that freedom was actually enhanced by establishing two levels of government rather than just one, a concept that may initially appear counterintuitive.
174 Gregory, 501 U.S at 459 ment, the Court concludes that in “the tension between federal and state power lies the promise of liberty.” 175
The Court highlights the concept of states as "laboratories of democracy," emphasizing their role in experimenting with diverse solutions to complex issues Justice Kennedy articulated this idea in Lopez, stating that federalism allows states to explore various approaches when the optimal solution remains uncertain.
A key argument in democratic theory emphasizes the importance of public engagement and government responsiveness The Court asserts that a federal structure fosters decentralized governance, which better addresses the diverse needs of a heterogeneous society and enhances citizen participation in democratic processes Additionally, this framework promotes innovation and experimentation in government, as it encourages competition among states to attract a mobile citizenry.
The Court's federalism jurisprudence is fundamentally rooted in the view of states as sovereign entities with dignitary interests This perspective aligns with the beliefs of contemporary "anti-Federalists," who regard states as holders of constitutional and political rights similar to those of individuals.
Justice Powell's dissent in Garcia highlights the Tenth Amendment as a clear recognition of states' political rights, a viewpoint later embraced by the Court in Lopez He argues that the need for the Bill of Rights stems not from the protection of individual citizens' rights, as commonly believed, but rather serves as a definitive assurance of state sovereignty.
175 Id.; see also New York v United States, 505 U.S 144, 181 (1992)
176 Lopez, 514 U.S at 581 (Kennedy, J., concurring); see also Smith v Robbins, 528
The U.S Supreme Court acknowledged in 2000 the longstanding practice of federalism, which grants states considerable discretion to explore solutions to complex policy issues, provided they adhere to the minimum standards set by the Fourteenth Amendment.
179 See Suzanna Sherry, States Are People Too, 75 N OTRE D AME L R EV 1121, 1125
180 Garcia v San Antonio Metro Transit Auth., 469 U.S 528, 568 (1985) (Powell, J., dissenting)
The Reapportionment Revolution and the Right to Vote
Our modern interpretation of democracy and voting rights has significantly evolved since colonial times, where the right to vote was highly restricted in English colonies Voting privileges were largely limited, reflecting a narrow understanding of democratic participation.
We have a minor disagreement with Professor Caminker regarding the wording of a specific sentence, but we completely concur with the essence of his argument.
The concept that states possess self-esteem concerns implies that, once established, they develop their own interests and identities independent of the populace that created them This perspective highlights a conflict between the idea that states inherently possess a dignity akin to all sovereign entities and the belief that they are simply creations of the people, existing primarily to serve their will.
Throughout much of American history, voting rights were predominantly limited to white male property owners, with many colonies explicitly restricting suffrage to freeholders and excluding nonfreeholders and women from the electoral process.
The evolution of our understanding of the franchise is clearly illustrated in the Constitution, which now encompasses significant changes such as the Civil Rights Amendments and the Nineteenth, Twenty-fourth, and Twenty-sixth Amendments Notably, the fight for enfranchisement for women and voters of color has engaged both the federal government and the courts, highlighting the ongoing struggle for voting rights.
Since the early 1960s, particularly following the landmark case Baker v Carr, the Supreme Court has significantly influenced the principle of majority rule in the United States, marking what is known as the "reapportionment revolution." This movement established the foundational concept of "one person, one vote," promoting a flexible interpretation that emphasizes the importance of equal representation The Court reassured that while each individual is equal, the application of "one vote" should be as close to equal as possible, leading to widespread acceptance of this standard in the electoral process.
“has now been sanctified by history.” 203 This is not to say, to be
196 See A LEXANDER K EYSSAR , T HE R IGHT TO V OTE : T HE C ONTESTED H ISTORY OF
D EMOCRACY IN THE U NITED S TATES (2000); Robert S Steinfeld, Property and Suffrage in the Early American Republic, 41 S TAN L R EV 335 (1989)
203 Bernard Grofman, Toward a Coherent Theory of Gerrymandering: Bandemer and
Thornburg, in P OLITICAL G ERRYMANDERING AND THE C OURTS 29, 57 (Bernard Grofman ed.,
The doctrine of "one person, one vote" has been historically validated and is widely seen as a significant achievement in the pursuit of electoral equality This concept has been frequently discussed, notably by Robert G Dixon, Jr in his analysis of the Warren Court's efforts to uphold this fundamental principle.
The principle of "one man-one vote" embodies the aspiration for fairness and simplicity in the electoral process, promoting clarity and a sense of meaningful participation in governance This concept is crucial for ensuring equitable representation within the political system, as highlighted by Grofman and Scarrow in their analysis of reapportionment issues.
439 (1982) (“[T]he doctrine of ‘one person, one vote’ has been elevated to the status of moral platitude.”); C Herman Pritchett, Equal Protection and the Urban Majority, 58 A M P OL
S CI R EV 869, 872 (1964) (“[T]he history of democratic institutions points compellingly in the direction of population as the only legitimate basis of representation today.”) (quoting
One Man, One Vote, in T HE T WENTIETH C ENTURY F UND 4 (1962)) clear, that “one person, one vote” is a universally accepted constitu- tional principle 204
The landmark case Baker v Carr sparked extensive scholarly debate, with Professor McCloskey noting that the reactions in the legal-political sphere were unprecedented since 1954 While some legal experts praised the Supreme Court's decision, others expressed concern over its broad implications A more optimistic perspective suggested that the Court might focus on addressing only the most egregious cases of apportionment issues, rather than launching a full-scale challenge to state processes.
204 See Wesberry, 376 U.S at 23-24 (Harlan, J., dissenting); Baker, 369 U.S at 301
(Frankfurter, J., dissenting); see also J OHN H ART E LY , D EMOCRACY AND D ISTRUST 121
(1980); Lani Guinier & Pamela S Karlan, The Majoritarian Difficulty: One Person, One
Vote, in R EASON AND P ASSION : J USTICE B RENNAN ’ S E NDURING I NFLUENCE 207, 208 (E
In their 1997 work, Joshua Rosenkranz and Bernard Schwartz argue that the principle of "one person, one vote" should not be viewed merely as a simplistic equation of democracy or a reflection of majority rule, a notion that some members of the current post-Brennan Court seem to endorse.
205 See G ORDON E B AKER , T HE R EAPPORTIONMENT R EVOLUTION : R EPRESENTATION ,
P OLITICAL P OWER , AND THE S UPREME C OURT , at viii (1966); R OBERT G D IXON , J R ,
D EMOCRATIC R EPRESENTATION : R EAPPORTIONMENT IN L AW AND P OLITICS , at vii (1968);
R OYCE H ANSON , T HE P OLITICAL T HICKET : R EAPPORTIONMENT AND C ONSTITUTIONAL D E-
MOCRACY (1966); R OBERT B M C K AY , R EAPPORTIONMENT : T HE L AW AND P OLITICS OF E QUAL
R EPRESENTATION 8 (1965); Carl A Auerbach, The Reapportionment Cases: One Person, One
Vote—One Vote, One Value, 1964 S UP C T R EV 1, 2; Jo Desha Lucas, Legislative
Apportionment and Representative Government: The Meaning of Baker v Carr, 61 M ICH L
R EV 711 (1963); Robert G McCloskey, The Supreme Court, 1961 Term—Foreword: The
Reapportionment Case, 76 H ARV L R EV 54 (1962); Phil C Neal, Baker v Carr: Politics in
Search of Law, 1962 S UP C T R EV 252; The Problem of Malapportionment: A Symposium on Baker v Carr, 72 Y ALE L.J 7 (1962)
207 See A NDREW H ACKER , C ONGRESSIONAL D ISTRICTING : T HE I SSUE OF E QUAL
R EPRESENTATION 121 (1963); see also Anthony Lewis, Legislative Apportionment and the
Baker v Carr is anticipated to trigger significant redistricting changes, as noted by Dixon, highlighting its potential impact on the balance of power among government branches, as emphasized by Philip B Kurland in his foreword discussing equality in governance.
H ARV L R EV 143, 149 (1964) (asserting that “[t]he reapportionment cases are as revo- lutionary in the political area as the desegregation cases have been in the social area”);
In the months following the court's decision, lower courts have acted more swiftly and extensively than in the previous seven years regarding school segregation (Neal, 253) The court's involvement in the reapportionment process was initially perceived as highly threatening (Grofman & Scarrow, 439) The significant state-level responses to the Baker decision highlight the urgency of addressing these issues, as demonstrated by the lack of action observed in places like Tennessee.
Despite criticism, the Court advanced the principle of “one person, one vote,” exemplified in Kirkpatrick v Preisler, where it mandated that states must make a good-faith effort to achieve precise mathematical equality in congressional districting The Court stated that population variances among districts must be justified, regardless of size, unless they occur despite such efforts Consequently, the Court ruled that only unavoidable population variances are permissible under Article I, Section 2 In Kirkpatrick, a 5.9 percent deviation due to political boundaries was deemed insufficient justification Recently, the Court has even implemented a zero deviation standard for congressional districting plans.
The Court's interpretation of voting rights and its significance in a democratic society peaked during the reapportionment era, especially in the landmark case Reynolds v Sims This case offered an expansive view of democracy and popular sovereignty, emphasizing that individuals are the primary holders of political rights The Court affirmed that “each and every citizen has an inalienable right” to participate in the electoral process, underscoring the fundamental importance of voting in a representative democracy.
209 Alexander M Bickel, The Durability of Colegrove v Green, 72 Y ALE L.J 39, 44
In "Apportionment and the Right to Vote: Standards of Judicial Scrutiny," Gerhard Casper highlights the clear context of Baker v Carr, which addressed the lack of reapportionment by the Tennessee legislature since 1901, despite a constitutional mandate for it every decade Dixon argues that while Baker v Carr does not necessitate strict arithmetic standards, it underscores the need for judicial intervention to maintain an effective political system and address significant population disparities McCloskey suggests that Baker should adopt a restraintist approach in its rulings.
“that focused only on the opening up of the procedures of popular consent”)
212 Id at 530-31 (internal citation omitted); see also White v Weiser, 412 U.S 783,