The Origins and Constitutionality of State Unit Voting in the Electoral College

Abstract

Every four years, the American people focus their attention on the Electoral College. Perhaps the most controversial aspect of our constitutional system for selecting the President is the "winner-take-all" system that operates in forty-eight states, also known as "unit voting." It becomes the subject of public debate and proposed constitutional amendments during every presidential election cycle. Many believe that the unit rule should be abolished for practical reasons, and others contend that it impermissibly fails to "count the votes" of those who vote for the losing candidate in each state. I examine the Electoral College in two contexts: the history and original understanding of the institution, and its relation to modern Supreme Court jurisprudence. This research reveals that despite any contemporary objections, the Electoral College is essentially a structural institution, conceived as a foundational component of the Constitution's federalist system. It therefore leaves the states with absolute discretion in designing their procedures for choosing electors, including the employment of the unit rule. Furthermore, recent Supreme Court jurisprudence in the areas of federalism, state sovereignty, and equal protection shows that any movement to force reform at the national level (short of a successful constitutional amendment) through Congress or the courts will prove untenable. However, the same constitutional discretion that empowers states to use the unit rule also means that a reform movement would be free to seek change on a state-by-state level.

Keywords: Electoral College, original meaning, federalism