Law, Rules, and Presidential Selection

Abstract

Robert Dahl, in "How Democratic is the American Constitution?", criticizes the institution of the Electoral College as "morally, politically, and constitutionally wrong." This Article addresses the third of those claims. Dahl's critique, like many directed against the Electoral College, presumes a constitutional commitment to majoritarianism. This Article examines the rather commonplace departures from strict majoritarian rule in the Constitution, and concludes that the distortions from majoritarian preferences created by the Electoral College are actually much smaller in scope than those created by the U.S. Senate, the Article V amendment process and, to some extent, the House of Representatives. Moreover, subsequent constitutional developments - namely the "Reapportionment Revolution" of Baker v. Carr and later cases - have not enshrined a constitutional principle of simple majoritarianism that might undermine the constitutional foundation of the Electoral College. The Article then explores the controversies surrounding the presidential elections of 1800 and 1876 to argue that there are nonetheless important constitutional principles at stake in the operation of the Electoral College, namely in the manner in which Congress dictates rules for the settlement of disputes arising from presidential elections. The Article concludes by discussing one aspect of the Electoral College that could be susceptible to constitutional challenge: the "winner-take-all" system employed by nearly all states to allocate electoral votes. This practice, which is not mandated by the Constitution, could be challenged, not on the grounds that it is inconsistent with majoritarianism, but rather on the grounds that it gives the majority too much power - an argument that finds much stronger support in our constitutional jurisprudence.

Keywords: Elections, Presidential Selection, Electoral College

JEL Classification: K1, K4