Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Sub-Constitutional Change

75 Pages Posted: 19 Mar 2011

See all articles by Norman Williams

Norman Williams

Willamette University - College of Law

Date Written: March 15, 2011

Abstract

Frustrated by their inability to secure passage of a federal constitutional amendment abolishing the Electoral College, its opponents have sought to establish the direct, popular election of the President by having individual states agree to appoint their presidential electors in accordance with the nationwide popular vote. Ostensibly designed to prevent elections, such as the one in 2000, in which the Electoral College “misfired” and chose the candidate who received fewer popular votes, the National Popular Vote Compact has been adopted by several states. In this article, I argue that National Popular Vote Compact is an unnecessary and dangerous reform. It is unnecessary because the Electoral College is only modestly malapportioned and less so than many other accepted features of the U.S. political process, which distort popular political preferences to a greater extent. Moreover, that malapportionment is simply the consequence of having a presidential election system that combines elements of majoritarianism and federalism, as other industrialized democracies have adopted. It is dangerous because the NPVC contains a host of defects that would make electoral misfires more likely and trigger a series of political and constitutional crises. The abolition or reform of the presidential election system requires a federal constitutional amendment; attempting to achieve some reform via a sub-constitutional agreement among several states risks creating a presidential election system that is neither workable nor fair.

Keywords: Electoral College, Presidential Election, National Popular Vote Compact

JEL Classification: K0, K10, K30

Suggested Citation

Williams, Norman, Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Sub-Constitutional Change (March 15, 2011). Georgetown Law Journal, Vol. 100, No. 1, 2011, Available at SSRN: https://ssrn.com/abstract=1786946

Norman Williams (Contact Author)

Willamette University - College of Law ( email )

245 Winter St. SE
Salem, OR 97301
United States
503-370-6190 (Phone)
503-370-6375 (Fax)

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