Recent Proposals for Electoral College Reform

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The Michigan Law Review’s companion journal First Impressions today published 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.

The extended post contains a more complete description of the symposium and links to the essays.


Ohio State University’s Moritz College of Law Professor Daniel P. Tokaji argues that the thirty-five day period in which states can take advantage of the “safe harbor” provision under federal law offers insufficient time for the resolution of post-election disputes over electors. Professor Tokaji proposes a new timetable that would allow states more time to complete recount and contest proceedings in the event of close, contested elections—a change he feels is justified on both fairness and federalism grounds.

Sacramento-based election law attorney and former legal counsel for California Governor Arnold Schwarzenegger and the California Republican Party Thomas W. Hiltachk explains and defends his proposed statewide initiative that would change California’s winner-take-all system of awarding its fifty-five electoral votes to a system that arguably would make California more relevant to the election process. If the California initiative took effect, the state would award the presidential candidate winning the popular vote in each of the state’s congressional districts one electoral vote while awarding the winner of the state’s overall popular vote two electoral votes.

Washington, D.C.-based election law attorney and former Democratic campaign manager Sam Hirsch critiques Hiltachk’s proposed initiative, arguing that the congressional-district system increases the chances of the presidency being awarded to the second-place finisher in popular votes, is significantly biased to favor one political party, and is founded on the erroneous assumption that congressional-district lines are politically “neutral” and thus well suited to functions other than electing members of the U.S. House of Representatives.

University of Chicago Dean of Social Sciences John Mark Hansen examines the effects of the Electoral College system and the proposed reforms to it on the prospect of equal voice in elections, concluding that if every vote is to count equally, the only solution is to elect the president by direct popular vote.

University of California’s Hastings College of the Law Professor Ethan J. Leib and Hastings College of the Law J.D. Candidate Eli J. Mark critique three state-based reform systems—reforms granting electoral votes based on winning congressional districts, reforms granting electoral votes in proportion to the state’s popular vote, and reforms granting all of a state’s electoral votes to the nationwide popular vote winner—and note the effects of partisan principles on defenses and critiques of them.

Massachusetts Institute of Technology Visiting Scholar Alexander S. Belenky discusses instituting direct popular election of the president as well as the National Popular Vote interstate compact but also evaluates a third option that makes the nationwide popular vote a decisive factor in electing a president but retains the Electoral College as a safeguard against failure to elect a president.

University of Michigan J.D. candidate Daniel Rathbun contends both legal and sociological theory can explain the National Popular Vote compact’s failure to take hold. Legally, Rathbun argues, the NPV overlooks significant constitutional and practical-institutional obstacles. Sociologically, he contends, the NPV is structurally incapable of dis-embedding the federalist theory underlying the Electoral College.

To download a PDF of the entire symposium, feel free to click here.

Additional First Impressions content is available at http://www.michiganlawreview.org.

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7 Responses

  1. Alex Hamilton says:

    I am continually amazed that this is even a debate, and among legal scholars at that! Surely they understand why the system we have was put in place to begin with? It is as true now as it was in 1787 – without the electoral college, large states and urban centers run rampant over smaller states and rural people.

    Seriously, if the national popular vote were all that mattered, why would any candidate campaign outside a major city? And what might that candidate’s platform look like?

  2. Bob Sykes says:

    Actually, the Electoral College is only one of a few explicitly anti-democratic institutions established to preserve individual freedom. The others are (1) The Bill of Rights, (2) the Senate and (3) the Supreme Court. If we are going to reform/eliminate the Electoral College in the name of democracy, we should reform/eliminate the others, too. Then we can have a progressive heaven on earth.

  3. Clint says:

    Two words: Fraud and Recount.

    Recall Florida in 2000, and ask yourself: What would happen in a close election decided by national popular vote? There would be detailed recounts and investigations into fraud and voter suppression in every precinct in America.

    Then there’s fraud: Districts which have been controlled by a single party for generations, in states which are the same, have officials with the ability to commit massive voter fraud — but no real incentive to do so, since the state’s electoral votes will go to the “right” candidate and count only once no matter how many dead people vote. In a direct national popular vote every such “vote” would count.

  4. kwo says:

    Also consider the effect of a major disaster in a large urban location (e.g. weather, terrorist attack, etc.). Huge cities or small states could be completely disenfranchised if the disaster struck at the right moment. The electoral college provides a failsafe mechanism to provide some form of representation (at the discretion of the state legislature).

    Prof. Tojaki’s argument for a longer certification period deserves a close look.

  5. Rich V says:

    The electoral college was put in place to ensure that the elected president was approved by a MAJORITY OF STATES, not from the “popular” vote.

    Under this concept, ALL the states become important to the election. Can you imagine, DE’s 3 votes mattering in the “grand scheme” of things? However, in a close election, the candidate that wins a majority of states, wins the election.

    If we change the system to the national popular vote, then only (roughly) ten states will actually matter, MA, NY PA, OH, IL, FL, TX, CA…will actually see candidates campaign. After all why should they spend money in WI or NM, when their votes really don’t matter?

  6. John D says:

    This is just another symptom of the common delusion that the U.S. is or should be a Democracy. It should come as no surprise to anyone reading this or other legal blogs that the founders did not want and in fact fear direct democracy.

    One of the most destructive contributions of the Warren Court, which had many, was the “one man, one vote” decision which changed the entire landscape of politics in America. Under this decision the U.S. Senate would be unconstitutional if its structure wasn’t laid out in the Constitution itself.

  7. Brian Hope says:

    If you look at the real-population/electoral count ratio for individual states, there is a significant imbalance in favor of rural states. In a direct-vote system, any corruption in one electoral district would have a minimal effect with no winner-take-all state system to magnify the effect of said local situation. The electoral college should be put in the same constitutional dustbin with such antiquated relics as senators being selected by state legislatures.