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| Volume 106, No. 4 (February 2008) |
| An Online Symposium on Recent Proposals for Electoral College Reform |
Several proposals for changing the manner in which electoral votes are assigned have been increasingly debated since the 2008 presidential campaign began. Among these are recent suggestions that states assign their electoral votes based on the popular vote results in individual congressional districts or assign their electoral votes statewide based on the national popular vote. The symposium contributors explore the viability and advisability in today’s political climate of these and other Electoral College reform proposals. |
An Unsafe Harbor: Recounts, Contests, and the Electoral College [HTML] [PDF]
Daniel P. Tokaji, Ohio State University's Moritz College of Law
Although recent proposals for modifying the Electoral College process have focused mainly on how electoral votes are assigned, another problem with the current system has received less attention: the timetable for resolving post-election disputes over electors. Under 3 U.S.C. § 5, the so-called “safe harbor” provision of federal law, a state can be assured of having its chosen slate of electors recognized only if post-election disputes are resolved within thirty-five days of Election Day. As a practical matter, this provision doesn’t provide states enough time to complete recount and contest proceedings in the event of a close, contested election.  |
Reforming the Electoral College One State at a Time [HTML] [PDF]
Thomas W. Hiltachk, Bell, McAndrews & Hiltachk LLP
The genius of our United States Constitution is the delicate balance our Founding Fathers struck between empowering a national government and preserving the inherent sovereignty of individual states. Any proposed governmental reform that would interfere with that balance should be looked upon skeptically. Recent proposals to do away with the Electoral College in favor of a national popular vote for President deserve such careful examination. But that does not mean that reform is out of reach. We have only to look to the Constitution itself to find that the answer lies in the self-interest of each state. |
Awarding Presidential Electors by Congressional District:
Wrong for California, Wrong for the Nation [HTML] [PDF]
Sam Hirsch, Jenner & Block LLP
The unfairness of the proposed California Presidential Election Reform Act is obvious: in a close election, the Act virtually assures that California’s fifty-five electoral votes, which would be expected to go entirely to the Democratic presidential candidate under the traditional statewide-winner-take-all system, will instead be split, with more than a third of them going to the Republican candidate. Implementing this “reform” in the nation’s largest Democratic state, but not in any of the large Republican states (like Texas), is roughly the equivalent of handing over to the Republicans the state of Illinois. What is less obvious is that the Act would be unfair and unwise even if it applied nationwide. |
Equal Voice by Half Measures [HTML] [PDF]
John Mark Hansen, University of Chicago
In democratic theory, the ballot is the most perfect expression of the democratic commitment to the moral equality of persons. . . . The ballot not only gives citizens their voice in government, it also makes their voices equal. In practice, however, democracies have erected all sorts of impediments to the ideal of equal voice, such as restrictions on suffrage, legislative malapportionments, and discriminatory gerrymanders. Among the most egregious impediments, however, are surely the systems of indirect election purported to filter and to refine the voice of the people. The Electoral College is one such system. This Commentary examines the effects of that system and the proposed reforms to it on the prospect of equal voice in elections. |
Democratic Principle and Electoral College Reform [HTML] [PDF]
Ethan J. Leib & Eli J. Mark, University of California's Hastings College of Law
The Electoral College is a relic from another time and is in tension with the modern constitutional command of “one person, one vote.” But the Electoral College is, nevertheless, ensconced in our Constitution—and, as a result, we would need to amend the document to alter or abolish it from our political fabric. Still, some states are toying with state-based Electoral College reforms. Thus, irrespective of whether voters in those states favor the abolition of the Electoral College through a federal constitutional amendment, they must critically examine the democratic merits of these state-based reform options. Categorically rejecting all state-based reform is unwise, owing to obvious and substantial barriers to direct federal or constitutional action. |
The Good, the Bad, and the Ugly: Three Proposals to Introduce the Nationwide Popular Vote in U.S. Presidential Elections [HTML] [PDF]
Alexander S. Belenky, Massachusetts Institute of Technology
The idea of reforming the Electoral College recurs each time a presidential election nears. Polls show that an overwhelming majority of respondents support abolishing the Electoral College in favor of direct popular election of the President. Yet, it is doubtful whether these polls really imply that such a move would be best for the country. Despite the seeming simplicity of direct popular presidential election, its introduction in the United States—a country in which the clear separation of powers between the states and the federal government has existed for more than two centuries—would have hidden drawbacks that the media and pollsters usually fail to communicate. |
Ideological Endowment: The Staying Power of the Electoral College and the Weaknesses of the National Popular Vote Interstate Compact [HTML] [PDF]
Daniel P. Rathbun, University of Michigan Law School
The National Popular Vote (“NPV”) movement is designed to eliminate the federalist impact of the Electoral College without amending the Constitution. By fashioning an interstate compact to grant participating states’ electoral votes to the winner of the national popular vote, NPV proponents suppose they can induce states to forfeit their electoral “weights” and replace the current, federalist election process with a fully majoritarian one. But by leaving the Electoral College in place, the NPV movement is setting itself up for a double pushback: first, in the form of immediate legal resistance, and second, through states’ long-term involvement in a meaningfully intact federalist system. |
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