The Electoral College, the Right to Vote, and Our Federalism: A Comment on a Lasting Institution
Luis E. Fuentes-Rohwer
Indiana University Maurer School of Law
Guy-Uriel E. Charles
Duke Law School
Florida State University Law Review, Forthcoming
The Electoral College has been subject to a constant barrage of criticism. This raises an obvious question: how has the College managed to survive despite its lack of popularity, its opacity and its generally controversial nature?
Commentators look to the wisdom and staying power of the founding generation as well as to the force of history and tradition. In this Article, we look carefully at a third possibility. That is, we look to the foundation of our political structure and the nature of our democratic commitments.
In this vein, we are particularly intrigued by the question of electoral legitimacy. To be clear, we are not interested in the question of legitimacy in and of itself. Rather, it is clear to us that the question of legitimacy - and more generally the larger debate surrounding the use of the College as the method of presidential selection - rests upon an infrequently articulated conception of democracy and an oft-debated notion of federalism.
In so doing, we conclude that before we can meaningfully talk about whether the Electoral College is worth keeping or changing, we must first come to grips with the scope of our democratic commitments. We must also grapple with the nature of the compromise that we have struck between state and federal interest in presidential elections. Until we struggle with and come to appreciate these two crucial foundations of our democratic ethos, the Electoral College debate will continue to consist of recycled ideas that will continue to be rejected.
Number of Pages in PDF File: 47Accepted Paper Series
Date posted: February 20, 2002
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