Keywords to use when researching
abolish electoral college
National Popular Vote
Pro Abolition of the EC
Against Abolition of the EC
Defending the Electoral College (requires free registration)
Heritage Foundation, “The Electoral College and the National Popular Vote Plan,” at http://www.heritage.org/events/ 2011/12/electoral-college.
Eliza Newlin Carney, “GOP Nonprofit Backs Electoral College,” Roll Call.com, December 8, 2011, at http://www.rollcall.com/issues/57_71/GOP-Nonprofit-Backs-Electoral-College-210872-1.html.
Norman R. Williams, “Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional Change,” Georgetown Law Review, vol.100, issue 1, 2011, p. 173.
lexander S. Belenky, “The Good, the Bad, and the Ugly, Three Proposals to Introduce the Nationwide Popular Vote in U.S. Presidential Elections,” Michigan Law Review, June 2014, vol. 112, at http://www.michiganlawreview.org/ articles/the-good-the-bad-and-the-ugly-three-proposals-to-introduce-the-nationwide-popular-vote-in-u-s-presidential- elections.
Daniel P. Moynihan, “The Electoral College and the Uniqueness of America,” in Securing Democracy, Why We Have an Electoral College, ed., Gary L. Gregg, II (Wilmington, DE: ISI Books, 2001), pp. 91-93.
John Samples, A Critique of the National Popular Vote Plan for Electing the President, Cato Institute, Policy Analysis No. 622, October 13, 2008, p. 9.
Hans von Spakovsky, Destroying the Electoral College: The Anti-Federalist National Popular Vote Scheme, Heritage Foundation Legal Memorandum No. 73, October 26, 2011, p.8.
Robert A. Dahl, How Democratic is the American Constitution? (2d ed. 2003).
Hendrik Hertzberg, Framed Up: What the Constitution Gets Wrong, New Yorker, July 29, 2002, at 85.
Lawrence D. Longley & Neal R. Peirce, The Electoral College Primer 2000, at 22 (1999) (“By itself, the electoral college was not conceived to be a bulwark of small-states’ rights; rather, if anything, it was seen as favoring large states, or at least the principle of population.”);
Finkelman, The Proslavery Origins of the Electoral College, 23 Cardozo L. Rev. 1145, 1147, 1150 (2002) (labeling this explanation “wrong”).
and Jennifer S. Hendricks, Popular Election of the President: Using or Abusing the Electoral College (Nov. 15, 2007) (unpublished draft), available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1030385.
For the detailed plan of the organization as well as legal analysis, see JOHN R. KOZA et al., EVERY VOTE EQUAL: A STATE-BASED PLAN FOR ELECTING THE PRESIDENT BY NATIONAL POPULAR VOTE (2006), available at www.every-vote-equal.com, with additional information about the National Popular Vote group at www.natonalpopularvote.com.
John McCormick, Comments on Robert Dahl’s How Democratic is the American Constitution?, 26 Cardozo L. Rev. 2535, 2535 (2005).
Note, Rethinking the Electoral College Debate: The Framers, Federalism, and One Person, One Vote, 114 Harv. L. Rev. 2526, 2533 (2001).
n15. John O. McGinnis, Popular Sovereignty and the Electoral College, 29 Fla. St. L. Rev. 995, 996 (2001). For further development of the point, with a reference to the 1960 World Series, see Michael Albert, Election Issues: Money, Structure, Manipulation, and the Electoral College, Znet Daily Commentaries (Nov. 13, 2000), at http://www.lbbs.org/ZSustainers/ZDaily/ 200011/13albert.htm.
n1. So one would infer, for example, from the recent publication of a new review of three books on the electoral college that were all published three decades ago. See Ann Althouse, Electoral College Reform: Deja Vu, 95 Nw. L. Rev. 993 (2001) (reviewing Judith Best, The Case Against Direct Election of the President: A Defense of the Electoral College (1971); Alexander M. Bickel, Reform and Continuity: The Electoral College, the Convention, and the Party System (1971); Lawrence D. Longley & Alan G. Braun, The Politics of Electoral College Reform (1972)).
n9 Proposals for Electoral College Reform: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong. 4 (1997) [hereinafter Hearing] (statement of Rep. Robert Scott, Member, House Comm. on the Judiciary); see also Terri Susan Fine, Constitutionality, Legitimacy and Political Participation: A Look at First Time Voters in 2000, 13 U. FLA. J.L. & PUB. POL’Y 153 (2001).
Anastaplo, George. A Review of the Constitution of 1787. Baltimore, Md.: Johns Hopkins University Press, 1989. Addresses the presidential selection process, emphasizing the electoral college and proposals to replace it with a more democratic mechanism.
Antieau, Chester J. Modern Constitutional Law. Rochester, N.Y.: Lawyers Cooperative Publishing Co., . Provides an overview of the constitutional development of the electoral college.
Barber, James D. Choosing The President. Englewood Cliffs, N.J.: Prentice Hall, 1974.
Berns, Walter. After the People Vote. Washington, D.C.: American Enterprise, 1992.
___. After the People Vote: Steps in Choosing the President. Washington, D.C.: American Enterprise, 1984.
Bickel, Alexander. Reform and Continuity: The Electoral College, the Convention, and the Party System. New York: Harper Colophon Books, 1971. Stresses the importance of the electoral college to federalism.
Brams, Steven J. The Presidential Election Game. New Haven, Conn.: Yale University Press, 1978.
Breckenridge, Adam, and Larry Berman. Electing the President. Washington, D.C.: University Press of America, 1982.
Caeser, James W. Presidential Selections: Theory and Development. Princeton, N.J.: Princeton University, 1979.
Durbin, Thomas, ed. Nomination and Election of the President of the United States. Washington, D.C.: Government Printing Office, 1988. Refers to state laws on the nomination and election of presidential electors. Contains both code citations and summaries.
Durbin, Thomas M., and L. Paige Whitaker. The Electoral College Method of Electing the President and Vice-President and Proposals for Reform. Washington, D.C.: Congressional Research Service, 1988.
Glennon, Michael J. When No Majority Rules: The Electoral College and Presidential Succession. Washington, D.C.: Congressional Quarterly, 1992. A survey of the present presidential selection process and possible reforms of that process. Argues that some proposed reforms could render the process both less republican and less democratic. Persuasively argues that both the procedure for selecting members of the electoral college and the procedure for selecting a President in the House of Representatives badly need reform.
Kimberling, William C. The Electoral College. Washington, D.C.: National Clearinghouse on Election Administration, Federal Election Commission, 1992.
MacBride, Roger Lea. The American Electoral College. Caldwell, Idaho: Caxton Printers, 1953.
Pierce, Neal R., and Lawrence D. Longley. The People’s President: The Electoral College in American History and the Direct Vote Alternative. New Haven, Conn.: Yale University Press, 1981.
Rotunda, Ronald, John E. Nowak, and J. Nelson Young. Treatise on Constitutional Law: Substance and Procedure. St. Paul, Minn.: West Publishing [*301] Co., 1969. Provides an overview of the constitutional development of the electoral college.
U.S. Congress. Senate. Election of the President of the United States by the House of Representatives. Washington, D.C.: Government Printing Office, 1925. Discusses elections in which the electoral college was deadlocked and were resolved by the House of Representatives.
U.S. Congress. Senate. Library. Nomination and Election of the President and Vice-President of the United States, Including the Manner of Selecting Delegates to the National Political Conventions. Washington: U.S. Government Printing Office, 1960-. Covers the selection of presidential electors, provides summaries and tables, and cites to codes and constitutions.
Wilmerding, Lucius. The Electoral College. New Brunswick, N.J.: Rutgers University Press, 1958. Provides an historical survey of the presidential selection system, critiques the system, and explains reform proposals.
Bailey, Harry. “Electoral College and American Federalism.” Illinois Quarterly (December 1973): 61-73. Argues that the electoral college is important for preserving separate state identities and for maintaining state authority.
Brams, Steven J., and Morton D. Davis. “The 3/2 Rule in Presidential Campaigning.” American Political Science Review 68 (March 1974): 113-34. Assesses the effect of the electoral college’s “winner-take-all” feature on the allocation of candidates’ resources to the states in a presidential campaign.
Colantoni, Claude S., Terrance J. Levesque, and Peter C. Ordeshook. “Campaign Resource Allocations Under the Electoral College.” American Political Science Review 69 (March 1975): 141-54. Argues that the electoral college biases presidential campaign allocations in favor of big states. Also rejects the “3/2 hypothesis.” Believes that electoral college victories are based on such variables as each candidate’s information, assumptions about the opponent, and the ability or willingness to reevaluate strategy as the campaign proceeds.
Congressional Research Service. American Law Division. “Majority of Plurality Vote Within State Delegations When House of Representatives Vote for President.” Washington, D.C.: Congressional Research Service, June 10, 1980.
Davis, Charles H. “The Electoral College and Its Proper Operation.” Tyler’s Quarterly History and Genealogical Magazine 27 (October 1945): 84-98.
Galvin, Thomas. “House Calls and Close Calls.” Congressional Quarterly Weekly Report 50 (May 23, 1992): 1421. Brief history of congressional action when the electoral college failed to select a president, including when the [*302] House of Representatives selected the President, the adoption of the Twelfth Amendment, and the establishment of the 1877 Electoral Commission.
Garand, James, and T. Wayne Parent. “Representation, Swing, and Bias in U.S. Presidential Elections, 1872-1988.” American Journal of Political Science 35 (1991): 1011-31. Observes that the electoral college had been dominated by a majoritarian representational form, with popular vote winners usually capturing a substantially higher proportion of the electoral college vote than would be suggested by the popular vote proportion. Argues that, contrary to the conventional wisdom of a Republican bias, the electoral college has had a Democratic partisan bias, particularly in the post-World War II era.
Goetz, Charles J. “An Equilibrium-Displacement Measurement of Voting Power in the Electoral College.” Paper delivered at the Annual Meeting of the American Meeting of the American Political Science Association, New Orleans, Louisiana, September 4-8, 1973.
Huckabee, David C. “Electoral Votes Based on the 1990 Census.” Washington, D.C.: Congressional Research Service, November 19, 1991.
Jillson, Calvin C. “Presidential Powers: The Executive in Republican Government: The Case of the American Founding.” Presidential Studies Quarterly 9 (1974): 386-402. Argues that the electoral college has functioned in a manner unanticipated by the framers of the Constitution. Believes that the electoral college has been relatively successful.
Kroke, David, and Henry Constance. “Political Structure of Rural America.” Annals of the American Academy of Political and Social Sciences 429 (1977): 51-62. Believes that the electoral college currently underrepresents rural influence in presidential elections, although various alternatives tend to discriminate in reverse. Foresees diminishing political differences between rural and urban populations.
Lenzner, Steven. “‘Virtuous’ Electoral College Praised.” Pennsylvania Law-Journal-Reporter (December 26, 1988): 22.
Longley, Lawrence D. “The Electoral College.” Current History 67 (1974): 64-69, 85-86. Explains how the electoral college has functioned, objections to it, and proposed reforms.
Longley, Lawrence D., and John H. Yunker. “Who is Really Advantaged by the Electoral College — and Who Just Thinks He Is?” Paper delivered at the Annual Meeting of the American Political Science Association, Chicago, Illinois, September 7-11, 1971.
___. “The Changing Biases of the Electoral College.” Paper delivered at the Annual Meeting of the American Political Science Association. New Orleans, Louisiana, September 4-8, 1973. Also in Senate Judiciary Committee, Subcommittee on Constitutional Amendments, Hearings on [*303] Electoral Reform, 93d Cong., 1st Sess., September 26 and 27, 1973, pp. 187-217.
Marshman, D. M., Jr. “Who Really Elects the Presidents?” American Heritage 24 (February 1973): 103-04.
Nelson, Michael C. “Partisan Bias in the Electoral College.” The Journal of Politics 37 (November 1974): 1033-48. Presents a method for measuring the presence and extent of bias in the electoral college. Bias is based in the different distributions of party support among states, and would determine the victor when the major party presidential candidates divided the national popular vote almost evenly between them, as in 1960. Since 1956, the bias has consistently been pro-Democratic.
Omdahl, Lloyd B. “The Negro Stake in the Electoral College.” Black Politician 2 (1971): 29, 30, 60-65. Believes that blacks are best served by the electoral college. The current electoral college system requires urban masses and block groups within those groups to win elections.
“Population Shifts Could Increase Democratic Woes in 1992 Election.” National Journal 20 (April 16, 1988): 1024. Contends that state census figures for 1990 indicated substantial growth in Republican strongholds at the expense of Democratic bastions, making electing a Democratic President more difficult.
Schneider, William. “Electoral College’s Archaic Ritual.” National Journal 20 (December 10, 1988): 3164.
___. “Political Change Has Stacked the Electoral College Against the Democratic Party.” National Journal 16 (November 3, 1984): 2110.
Sterling, Carlton W. “The Electoral College Biases Revealed: The Conventional Wisdom and Game Theory Models Notwithstanding.” Western Political Quarterly 31 (June 1978): 159-77. Concludes, based on statistical information from 1860-1972, that the electoral college does not bias presidential elections in favor of liberal candidates. Examines biases affecting voter coalitions under the electoral college by discussing the interaction of the electoral rules and specified voter coalitions.
Weisberger, Bernard A. “Electoral Headaches.” American Heritage 43 (November 1992): 22. Surveys the constitutional history of presidential election law, focusing on instances when the electoral college is deadlocked and the decision must be made by the House of Representatives.
Efforts to Reform or Abolish the Electoral College
- Legislative Hearings
Hearings on Senate Joint Resolution 4 Before the Sub-Committee on Constitutional Amendments of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., 90th Cong., 1st Sess., 245-46 (1968). Senator Birch Bayh’s comments favoring electoral college reform.
Sen. Rep. No. 1230, 80th Cong., 2d Sess. (1948); H.R. Rep. No. 1615, 80th Cong., 2d Sess. (1947). These reports discuss resolutions offered by Senator Lodge and Congressman Gossett to reform the electoral college.
An Act Pertaining to the Electoral College and Direct Elections of the President and Vice-President of the United States: Hearings on S.J. Res. 1, S.J. 8, and S.J. Res. 18 Before the Senate Comm. on the Judiciary, 95th Cong., 1st Sess., January 27-February 10, 1977. Washington, D.C.: Government Office, 1977. Hearings considered either reforming the electoral college or providing for the direct popular election of the President and Vice President. Most witnesses commented on the advisability of assuring equal value for all votes cast in an election and on the present system’s danger of electing a President receiving fewer popular votes than another candidate.
An Act Pertaining to Direct Popular Election of the President and Vice President of the United States: Hearings on S.J. Res. 28 Before the Subcomm. on the Constitution of the Senate Comm. on the Judiciary, 96th Cong., 1st Sess., March 27-April 9, 1979. Washington, D.C.: Government Printing Office, 1979. Hearings considered a proposed constitutional amendment to provide for direct popular election of the President and Vice President and a runoff election if no candidate receives at least forty percent of [*315] the vote. Also considers issues such as the impact of direct elections on federal-state relations, federalism, and the two-party system.
“Operation of the Electoral System in Selected States in 1960.” Library of Congress study, printed in Hearings Before the Subcommittee on Constitutional Amendments of the Senate Committee on the Judiciary on the Nomination and Election of the President and Vice-President, 87th Cong, 1st Sess. 412 (1961).
Abbott, David W., and Levine, James P. Wrong Winner: The Coming Debacle in the Electoral College. New York: Praeger Pub., 1991.
American Bar Association. Commission on Electoral College Reform. Electing the President: A Report of the Commission on Electoral College Reform. Chicago: American Bar Association, 1967. Concludes that the electoral college method of electing the President is archaic, undemocractic, complex, ambiguous, and dangerous. Reasons include (1) this method allows a person to be elected President with fewer popular votes than his major opponent, and (2) it grants all of a state’s electoral votes to the winner, cancelling all minority votes. Recommends a constitutional amendment to provide for direct election of the President, require a candidate to obtain at least forty percent of the popular vote to be elected, and provide for a national runoff election if no candidate receives forty percent of the vote.
Beman, L.T. Abolishment of the Electoral College. New York: H.W. Wilson, 1926.
Best, Judith. The Case Against the Direct Election of the President: A Defense of the Electoral College. Ithaca, N.Y.: Cornell University Press, 1975. Thoughtful and balanced appraisal of the electoral college and the proposed direct election plan. Opposes the notions that the electoral college is archaic and undemocratic and that the direct election of the President is necessarily more democratic. Argues further that the electoral college best reflects American democracy because it represents both the democratic (popular) element in America and the federal (state) element in presidential elections. Concedes that the electoral college has defects, but asserts that the direct election proposal would create an excessive centralization of power, weaken intermediary institutions, and encourage the development of third parties, or ideological single-issue parties. The electoral college has provided for a system of concurrent majorities, which gives every major interest some voice in policy information, and it has been confirmed by the solid test of experience.
Dixon, Robert G., Jr. Democratic Representation: Reapportionment in Law and Politics. New York: Oxford University Press, 1968. Criticizes electoral [*316] votes as artificial units because they make a majority appear stronger than it really is. The electoral college often distorts the final results by magnifying small pluralities within a state into clean sweeps. Such results give the winner the appearance of a “landslide” when the real sentiment of the voters was mixed.
Keech, William R. Winner Take All: Report of the Twentieth Century Fund Task Force on Reform of the Presidential Election Process. New York: Twentieth Century Fund, 1978.
Longley, Lawrence D., and Alan G. Braun. The Politics of Electoral College Reform. New Haven: Yale University Press, 1972. Argues that the electoral college process is seriously flawed and should be abandoned. Summarizes the creation and operation of the electoral college, its performance in the elections of 1960 and 1968, and various reform proposals. Describes unit voting in the electoral college as a universal, extra-constitutional innovation that completely disenfranchises voters who voted for candidates who failed to win the state’s plurality. Examines various reform proposals including the “automatic elector” plan, which eliminates the problem of the “faithless elector,” and the “direct vote plan,” which completely abolishes the present electoral college system. Favors the “direct vote” plan, but concludes that prospects for change are slim.
Michener, James. Presidential Lottery: The Reckless Gamble in Our Electoral System. New York: Random House, 1969. Argues that there are defects and dangers of the present system, including the possibility of elections frustrating the popular will. Discusses the threat the Wallace campaign posed for the electoral systrem in 1968, particularly if neither major party candidate had an electoral college majority. Based on the principles of legitimacy, the two-party system, and federalism, supports the “automatic vote plan,” but opposes the direct system.
Polsby, Nelson W., and Aaron B. Wildavsky. Presidential Elections: Strategies of American Electoral Politics. New York: Charles Scribner’s Sons, 1971. Argues that the present system is better suited to meet the goals of reformers than the proposed alternatives. Favors an amendment requiring the automatic casting of electoral votes to avoid the “faithless elector” problem.
Power, Max S. “Logic and Legitimacy: On Understanding the Electoral College Controversy.” In Perspectives on Presidential Selection, edited by Donald R. Matthews. Washington, D.C.: Brookings Institution, 1973.
Sayre, Wallace S., and Judith H. Paris. Voting for President: The Electoral College and the American Political System. Washington, D.C.: Brookings Institution, 1970. Examines the present structure of the electoral college and its effects on the electoral system. Also discusses several proposals to reform or abolish the electoral college in favor of alternatives, such as the direct vote plan, automatic plan, district plan, and proportional [*317] plan. Recommends retention of the present system with minor reforms.
Sindler, Allan. “Basic Change Aborted: The Failure to Secure Direct Popular Election of the President, 1969-70.” In Policy and Politics in America, edited by Allan Sindler. Boston: Little, Brown & Co., 1973.
Yunker, John H., and Lawrence D. Longley. “The Biases of the Electoral College: Who is Really Advantaged?” In Perspectives on Presidential Selection, edited by Donald R. Matthews. Washington, D.C.: Brookings Institution, 1973.
Zeidenstein, Harvey. Direct Election of the President. Lexington, Mass.: Heath-Lexington Books, 1973.
Banzhaf, John F. III. “One Man, 3.312 Votes: A Mathematical Analysis of the Electoral College.” Villanova Law Review 13 (1968): 304-32. Argues that because the Constitution allocates electors to each state based on the size of its congressional delegation, the most natural form of elector selection would be a district method, because the districts are closer than states to the natural unit of a presidential election.
Bayh, Birch. “Electing a President: The Case for Direct Election.” Harvard Journal on Legislation 6 (January 1969): 1-12. Argues that the direct vote plan is the only electoral system without the structural defects inherent under any other plan and that the direct vote would not alter the political bases of the American two-party system.
Bickel, Alexander. “Is Electoral Reform the Answer?” Commentary 46 (1968): 41-51. Argues that although the electoral college has not fulfilled its original purpose, it has provided continuity to our government. Believes some objections to the present system are unwarranted and that abuses should be remedied by reforming the system, not abolishing it.
Bonafede, Dom. “An ‘A’ for the Electoral College.” National Journal 11 (April 28, 1979): 701. Discusses the problems that could be unleashed by implementing a direct vote mechanism for President, including an overabundance of candidates, the destruction of the two-party system, and candidacies exclusively conducted through the news media.
Cronin, Thomas E. “The Direct Vote and the Electoral College: The Case for Meshing Things Up.” Presidential Studies Quarterly 9 (1979): 144-63. Analyzes the electoral college and direct elections. Proposes to combine both the direct vote and the electoral college.
Diamond, Martin. “The Electoral College and the idea of Federal Democracy.” Publius 8 (1978): 63-77. Criticizes the arguments that (1) the electoral college should be abolished merely because of its antiquity and (2) the possibility of the electoral college electing a candidate who failed to receive [*318] a popular plurality. Argues that the latter happened in 1888 without discernable damage. Believes that direct elections would encourage splinter parties.
Dixon, Robert. “Electoral College Procedures.” Western Political Quarterly 3 (1950): 214. Argues that procedures used by the electoral college are unconstitutional. Points out that neither Article II or the Twelfth Amendment establish procedures the states may use to select electors.
Feerick, John D. “The Presidential Election: Provisions and Precedents.” New York Law Journal (October 30, 1980): 1-2. Argues for reform of the electoral college.
___. “The Electoral College — Why It Ought To Be Abolished?” Fordham Law Review 37 (1968): 1. Favors a direct vote for President, a proposal which would preclude the “faithless elector” scenario.
Gans, Curtis. “A Better Way to Elect a President.” Washington Post (June 26, 1990): 21. Supports “Electoral Fairness,” a proposed district plan, arguing it would encourage more grass-roots activity, foster pluralism, and strengthen the two-party system.
Gorman, Joseph. “Effect of the Adoption of Direct Popular Election of the President and Vice-President on the Relative Influence of the Several States in Electing the President and Vice-President in 1976.” Washington, D.C.: Congressional Research Service, March 5, 1979.
Gossett, William T. “Electing the President.” Detroit College of Law Review 1983 (Winter): 1283-88. Believes the electoral college has long needed reform and direct election is the only method ensuring that the candidate with the largest number of popular votes is elected. Argues that positions taken against direct elections are without substance.
___. “Electing the President: New Hope for an Old Ideal.” American Bar Association Journal 53 (December 1967): 1103-06. Proposes election of the President and Vice President by direct popular vote, arguing that historically the pure form of the electoral college could not last. Describes nine major defects in the present system. Proposes a run-off election if no candidate obtains forty percent of the popular vote.
Hinich, Melvin J., Richard Michelson, and Peter Ordeshook. “The Electoral College vs. a Direct Vote: Public Bias, Reversal, and Indeterminate Outcomes.” Journal on Mathematical Sociology 4 (1975): 3-35. Presents a simplified model of the electoral college. The likelihood of politically significant changes in platforms has decreased over time, with increasing homogeneity between states; even in close elections the probability of reversal of a direct vote victory is no greater than twenty percent. Also found that regional parties and national parties are likely to produce indeterminate outcomes.
Joyner, Conrad, and Ronald Pedderson. “The Electoral College Revisited.” Southwestern Social Science Quarterly 45 (1964): 26-36. Reviews the electoral [*319] system, examining its defects and merits, reform proposals, and prospects for reform.
Kefauver, Estes. “The Electoral College: Old Reforms Take on a New Look.” Law and Contemporary Problems (1962): 188. States that Baker v. Carr, 369 U.S. 186 (1962), provided new hope for electoral college reform. Discusses reforms, such as those providing that a state’s electoral vote automatically be awarded to the winner of its popular vote and those advocating eliminating electors altogether.
Kirby, James C. “Limitations on the Power of State Legislatures Over Presidential Elections.” Law and Contemporary Problems 27 (1962): 495-509. Argues that the power of state legislatures is not absolute, but is limited by the U.S. Constitution and federal statutory law. State constitutions also may provide limitations. Federal constitutional limitations include: the Privileges and Immunities Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Fifteenth Amendment, and the Nineteenth Amendment. Also considers reform proposals and states the best solution would be a federal constitutional amendment abolishing the office of elector and automatically awarding each state’s entire vote to the winner of a plurality of its electoral vote.
Kirkpatrick, Jeane J. “Martin Diamond and the American Idea of Democracy.” Publius 8 (Fall 1978): 7-31. Portrays opponents of the electoral college as utopian socialists with unrealistic expectations. Believes the more moderate expectations of the constitutional framers were well founded.
Longley, Lawrence, and James D. Dana, Jr. Western Political Quarterly 37 (1984): 154-75. Introduces the newly initiated “voting power approach” to estimate the biases of the electoral college and other major alternative reform plans for the presidential elections of the 1980s. These biases are contrasted over a three-decade period, with comparable estimates for the presidential elections of the 1960s and 1970s. The present electoral college system contains partially countervailing biases, which result in a net advantage to large states as much as 2.352:1 and a disadvantage to states with 3 to 16 electoral votes. The electoral college tends to be biased in favor of those of Spanish origin, Jews, and foreign-born citizen voters, along with central city and urban residents. Those disadvantaged by the electoral college are blue-collar, rural, and black voters, with the black disadvantage declining over the past three decades.
Mabbutt, Fred R. “Federalism, Democracy, and the Electoral College.” Thought 45 (1970): 542-58. Favors retaining the present electoral college. This system incorporates the concept of “territorial” or “qualitative democracy,” reaffirms the federal principle, reinforces the rights of the minority, and promotes moderation and tolerance. Criticizes proposals for direct popular election and for proportional division of each state’s electoral votes.
Martin, William Logan. “Presidential Electors: Let the State Legislatures Choose Them.” American Bar Association Journal 44 (1958): 1182-87. Examines [*320] the record of the selection of electors, to determine how often different methods have been used. Concludes that of the many methods by which the states may choose to direct their selection, only four have been used. Urges a return to the practice of leaving the choice of electors to the state legislators.
Millus, Albert J. “The Electoral College — Should Anything Be Done About It?” New York State Bar Journal 54 (February 1982): 84-90. Provides a brief overview of, and supports, the electoral college. Believes the only politically acceptable amendment would be one that either stripped the electors of their constitutional right to exercise their own opinion and required them to vote for the political party appointing them to the electoral college, or one that eliminated electors but maintained the electoral vote as under the present system.
Oreskes, Michael. “This Time the Democrats Think They’ve Got It Right: A Plan to Regain the White House.” New York Times (September 7, 1989): A18. In the late 1980s, the Democrats’ remaining strength for presidential races seemed to lie in the district distribution plan of electoral votes. Thus, a Democratic group began advocating the distribution of electoral votes by district. Southern Democrats supported the plan because it gave them a chance to carry districts with large black populations or those with university communities. The plan would also have assisted third-party candidates. Republicans generally opposed the plan.
O’Sullivan, Michael T. “Note: Artificial Unit Voting and the Electoral College.” Southern California Law Review 65 (July 1992): 2421. Argues that the electoral college must be reformed, while keeping it within its constitutionally determined boundaries, making a constitutional amendment unnecessary. Advocates abolishing the statewide “unit” method of vote counting, in which a state awards its entire allocation of electoral votes to a candidate who wins the most popular votes. Believes the electoral college to be an artificial statewide unit voting procedure because it interposes a potentially abusive and distorting layer between an office and its constituency, which amounts to a deprivation of the right to vote.
Pierce, Neal. “Reflections on the Electoral College — Comment.” Villanova Law Review 13 (1968): 342. Comments on Banzhaf’s model, which purportedly establishes the disproportionate weight of the votes cast by the electorate of large states under the unit-vote of electoral voting (see supra page 317). Argues that an unfair advantage would be given to different voters under either a unit-vote or a proportional or district system, and advocates a direct vote of all the people as fair and equal.
Power, Max S. “A Theoretical Analysis of the Electoral College and Proposed Reform.” Ph.D. dissertation, Yale University, 1971.
___. “The Logic and Illogic of the Case for Direct Popular Election of the President.” Paper presented at the Western Political Science Association Meeting, Albuquerque, New Mexico, April 8-10, 1971.
[*321] Reidinger, Paul. “Still Ticking After All These Years.” American Bar Association Journal 73 (September 1, 1987): 43. Sixty-nine percent of lawyers surveyed believe the electoral college should be eliminated in favor of direct election of the President.
Rosenthal, Albert J. “The Constitution, Congress and Presidential Electors.” Michigan Law Review 67 (1968): 1. Argues that the electoral college method is both anachronistic and undemocratic. Discusses difficulties with a democratic selection process in both principle and practicality. Argues that the “faithless elector” problem could possibly be resolved, without a constitutional amendment, through a court decision or legislation.
___. “Some Doubts Concerning the Proposal to Elect the President by Direct Popular Vote.” Villanova Law Review 14 (1968): 87. In a critical examination of direct vote proposals, argues that the best hope of black Americans rests in maximizing the political influence of the urban areas, which entails retaining the electoral college.
Shogan, Robert. “Democrat Group Campaigns for Changes in Delegate Laws (Electoral Fairness Project).” Los Angeles Times (May 9, 1990): A5. The Electoral Fairness Project, composed of Democratic activists, is lobbying states to change the laws under which they select delegates to the electoral college. In 1990 forty-nine states chose electors by the winner-take-all method. The Fairness Project advocates the district plan, which awards some electors to candidates who had won congressional districts. The Fairness Project was particularly hopeful of having this reform enacted in the South. Under the district plan, however, Republicans Richard Nixon and Gerald Ford would have defeated Democrats John Kennedy in 1960 and Jimmy Carter in 1976.
Sickels, Robert J. “The Power Index and the Electoral College: A Challenge to Banzhaf’s Analysis.” Villanova Law Review 14 (1968): 92-96. Criticizes Banzhaf’s model of power in the presidential electoral system as distorted, claiming that there is no available empirical proof or disproof of Banzhaf’s measures as applied to the electoral college (see supra page 317). Argues that one must analyze Banzhaf’s model for plausibility and consistency in the abstract. That is why the larger states apparently have been favored (in the parties’ choice of candidates and issues, for example) under the model. Concludes that Banzhaf’s model does not prove anything about the extent of a large-state bias in electoral college procedure, since it does not preclude other reasons for the factors it relies on.
Silva, Ruth C. “Reform of the Electoral College.” Review of Politics (July 1952): 397.
Sindler, Allan. “Presidential Election Methods and Urban-Ethnic Interests.” 27 Law and Contemporary Problems (1962): 212. Concludes that retaining the current electoral system is preferable to any of the major suggested reforms. Believes that the electoral college has a pro-urban bias. Considers [*322] such issues as vote equality, reducing the distortion of the popular vote, and minimizing the chances of electing a minority President.
Smith, Eric. “Direct Election of the President and the Power of the States.” Western Political Quarterly 40 (1987): 29-44. Focuses on the powers of states under direct elections. Examines the conventional assumption that states are powerful in proportion to their populations, arguing that states are powerful in proportion to the number of raw votes they contribute to the candidate’s national pluralities. Under direct elections, Southern states would be slightly more important than the proportion of votes they cast in national elections would suggest.
Spering, Howard S. “How to Make the Electoral College Constitutionally Representative.” American Bar Association Journal 54 (1968): 763-70. Argues that if eighty percent of the presidential electors were selected by the nation’s congressional districts, the greatest problem with the electoral college (e.g., distorting the popular vote) could be resolved.
Spilerman, Seymour, and David Dickens. “Who Will Gain and Who Will Lose Influence Under Different Electoral Rules.” Discussion paper, Institute for Research on Poverty, University of Wisconsin-Madison, December 1972.
Sterling, Carleton W. “Electoral College Misrepresentation: A Geometric Analysis.” Polity 13 (1981): 425-49. Examines the interaction of voter coalitions and rules for electing the President, to discuss normative and empirical issues in the proposals to replace the electoral college with a direct election. Uses geometric analysis to find biases in the present system and challenges its claims.
___. “The Electoral College and the Impact of Popular Vote Distribution.” American Politics Quarterly 11 (April 1974): 174-204.
Uslander, Eric. “The Electoral College’s Alma Mater Should be a Swan Song.” Presidential Studies Quarterly 10 (Summer 1980): 483.
Wechsler, Herbert. “Presidential Elections and the Constitution: A Comment on a Proposed Amendment.” American Bar Association Journal 35 (1949): 181. Discusses proposals to reform the electoral college since 1789 and suggests factors which should be considered in deciding this issue. Explains that the present electoral college is unsatisfactory, but change had not yet occurred, partially because it was difficult to ascertain the effects of change under various reform proposals.
Weinhagen, Robert F. “Should the Electoral College Be Abandoned?” American Bar Association Journal 67 (July 1981): 852-57. Provides an overview of the electoral college system and its historical development. Analyzes objections to the system and to reform proposals. Believes the electoral college is effective and favors retaining the system. Claims that reformers [*323] do not have a compelling case for a constitutional amendment to change the presidential selection method.
Wildenthal, John. “Consensus After LBJ: The Role of the Electoral College.” Southwest Review 43 (1968): 113-30. Argues that the electoral college is essential to the survival of the American two-party system, because it forces various groups to work with the major parties, which prevents splintering into a variety of special interest or minority factions.
Wilkinson, Donald M. “The Electoral Process and the Power of the States.” American Bar Association Journal 47 (1961): 251-55. Discusses the defects of the electoral college system and the problems of finding an acceptable solution. Believes abolishing the electoral college is not politically realistic. Suggests that a modified allocation of the electoral college votes might be an acceptable reform.
Will, George. “Electoral College’s Campus Radical.” 113 Washington Post (June 3, 1990): D7. Criticizes the Electoral Fairness Project’s proposal for the district allocation of electoral votes.
Wroth, L. Kinvin. “Election Contests and the Electoral Vote.” Dickinson Law Review 65 (1960-1961): 321-53. After the Tilden-Hayes election controversy, a system was established to resolve electoral dispute (Act of Feb. 3, 1887, ch. 90, 24 Stat. 373). This was first tested when there were conflicting electoral returns from Hawaii in 1960. Examines the constitutional and statutory law for dealing with disputed electoral votes. Argues that the federal courts should be empowered to resolve these controversies.
Federalism: A Comment on a Lasting Institution, 29 FLA. ST. U. L. REV. 879 (2001); Sanford Levinson & Ernest A. Young, Who’s Afraid of the Twelfth Amendment?, 29 FLA. ST. U. L. REV. 925 (2001).
The World Series analogy has been previously appropriated by defenders of the Electoral College. See, e.g., Jeff Greenfield, The Hidden Beauty of the System, TIME, Nov. 20, 2000,
. Matthew Vita & Helen Dewar, Congress Debates Election Reform, Wash. Post, Nov. 17, 2000, at A20.
For scholarly work in support of the electoral college, see generally Judith Best, The Case Against Direct Election of the President: A Defense of the Electoral College (1975) [hereinafter Best, The Case Against Direct Election]; Judith A. Best, The Choice of the People? Debating the Electoral College (1996); Alexander M. Bickel, Reform and Continuity: The Electoral College, the Convention, and the Party System (1971); and Martin Diamond, The Electoral College and the American Idea of Democracy (1977).
Frederic D. Schwarz, The Electoral College: How It Got That Way and Why We’re Stuck With It, Am. Heritage, Feb.-Mar. 2001, at 43, 49 (“In reviewing the history of the Electoral College, it quickly becomes clear how little anybody has to offer that is new.”).
n58. For a breakdown of where the candidates spent their time and advertising money in the 2000 election, see Alexis Simendinger, James A. Barnes & Carl M. Cannon, Pondering a Popular Vote, 32 Nat’l J. 3650, 3653 (2000).
. See, e.g., Hands off: The Electoral College Has Served the Nation Well; There’s No Need for
Berkey v. Third Ave. Ry. Co., 155 N.E. 58, 61 (1926) (Cardozo, J.) (“Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.”).
Judith Best, The Choice of the People? Debating the Electoral College viii (1996) (foreword by Thomas E. Cronin).
Neal R. Pierce & Lawrence D. Longley, The People’s President: The Electoral College in American History and the Direct Vote Alternative 21 (1981).
n6 ROBERT M. HARDAWAY, THE ELECTORAL COLLEGE AND THE CONSTITUTION: THE CASE FOR PRESERVING FEDERALISM 141 (1994)
TWENTIETH CENTURY FUND, WINNER TAKE ALL: REPORT OF THE TWENTIETH CENTURY FUND TASK FORCE ON REFORM OF THE PRESIDENTIAL ELECTION PROCESS 4-5 (1978). Under this plan, each state plus the District of Columbia gets two extra votes, which are to be awarded to the winner of the popular vote. This plan would also abolish the office of electors and award Electoral College votes automatically. For those times when no majority is achieved, a runoff would take place between the top two candidates. Id.; see also Arthur Schlesinger, Jr., Fixing the Electoral College, WASH. POST, Dec. 19, 2000, at A39.
MICHAEL J. GLENNON, WHEN NO MAJORITY RULES: THE ELECTORAL COLLEGE AND PRESIDENTIAL SUCCESSION (1992);
But see Robert D. Brown, NO–The Electoral College Should Not Be Abolished, in CONTROVERSIAL ISSUES IN PRESIDENTIAL SELECTION 212 (Gary L. Rose ed., 2d. ed. 1994).
David W. Abbott & James P. Levine, Wrong Winner: The Coming Debacle in the Electoral College 17-18 (1991).
The Electoral College and Direct Election of the President: Hearings Before the Subcommittee on the Constitution of the Committee on the Judiciary, 102nd Cong. 113 (1992)
See, e.g., Proposals for Electoral College Reform: Hearings on H.J. Res. 28 and H.J. Res. 43 Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 105th Cong. 78 (1997) [hereinafter 1997 House Hearings] (questioning of Prof. Akhil Amar by Rep. Robert C. Scott) (“I would ask Professor Amar whether Jeff Greenfield, The Hidden Beauty of the System, Time, Nov. 20, 2000, at 66; Andrea Neal, Electoral College Is More Bang for Buck, Indianapolis Star, Nov. 23, 2000, at F2.
n10. Albert R. Hunt, The Electoral College: Legitimate but Anachronistic, Wall St. J., Oct. 26, 2000, at A27 (quoting Rep. Ray LaHood).
Id. at 17. See also Anthony T. Kronman, Alexander Bickel’s Philosophy of Prudence, 94 Yale L.J. 1567, 1595-96 (1985) (tying Bickel’s approval of the electoral college to his general doubts about “uncompromising majoritarianism” because of its destabilizing effects).
. See, e.g., Ann Althouse, Electoral College Reform: Deja Vu, 95 Nw. U. L. Rev. 993 (2001); Joy McAfee, Should the College Electors Finally Graduate? The Electoral College: An American Compromise from Its Inception to Election 2000, 32 Cumb. L. Rev. 643 (2001); John Banzhaf, One Man, 3.312 Votes: A Mathematical Analysis of the Electoral College, 13 Vill. L. Rev. 304 (1968). My approach differs in that I focus on scrutinizing the putative federalist arguments for retaining the electoral college.
Akhil Reed Amar, Some Thoughts on the Electoral College: Past, Present, and Future, 33 Ohio N.U. L. Rev. 467 (2007).
(citing Akhil Reed Amar, America’s Constitution: A Biography 148-59, 336-47 (2005)).
Michael Herz, Robert Dahl’s How Democratic Is The American Constitution?: An Introduction, With Notes On The Electoral College, 26 Cardozo L. Rev. 2515 (2005) (citing
David W. Abbot & James P. Levine, Wrong Winner 152 (1991).
Martin Diamond, The Electoral College and the American Idea of Democracy, in After the People Vote 44, 44 (Walter Berns ed., 1992).
Byron Dorgan, Electoral College Works Quietly, Just as Founders Intended, Roll Call, Jan. 15, 2001, at B35.
Should reform the electoral college through the National Popular Vote (NPV) Initiative
National Popular Vote Initiative – Reform Through Insterestate Compact
CRS Report RS20898, The Help America Vote Act and Election Administration: Overview and Issues, by (name redacted) and (name redacted)
Robert W. Bennett, “Popular Election of the President Without a Constitutional Amendment,” in The Green Bag, An Entertaining Journal of Law, 4 Green Bag 2d 241, available from the Social Science Research network by subscription, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=261057; Akhil Reed Amar and Vikram David Amar, “How to Achieve Direct National Election of the President without Amending the Constitution,” Findlaw’s Writ, December 28, 2001, at http://writ.news.findlaw.com/amar/20011228.html.
FairVote, “Time for National Popular Vote, not Electoral College Rigging,” at http://www.fairvote.org/news/time- for-national-popular-vote-not-electoral-college-rigging/.
John R. Koza et al., Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote, 4th ed. (Los Altos, CA: National Popular Vote Press, 2014).
Joseph Spector, “Tom Golisano to Lead National Popular Vote Effort,” WGRZ.com (Buffalo, New York), February 23, 2011, at http://www.wgrz.com/news/article/110466/1/Tom-Golisano-to-Lead-National-Popular-Vote-Effort. Hendrik Hertzberg, “N.P.V. Gets a Boost,” The New Yorker (Blogs), March 14, 2011, at http://www.newyorker.com/ online/blogs/hendrikhertzberg/2011/03/npv-gets-a-boost.html .
National Popular Vote website, at http://www.nationalpopularvote.com/pages/explanation.php.