56 Pages Posted: 2 May 2012 Last revised: 31 Mar 2014
Date Written: May 1, 2012
What role do States have when the Electoral College disappears? With the enactment of the National Popular Vote on the horizon and an imminent presidential election in which a nationwide popular vote determines the winner, States would continue to do what they have done for hundreds of years — administer elections. The Constitution empowers States to decide who votes for president, and States choose who qualifies to vote based on factors like age or felon status. This power of States, a kind of “invisible federalism,” is all but ignored in Electoral College reform efforts. In fact, the power of the States to distinguish between voters and non-voters precludes reform.
Such barriers to reform are both theoretical and practical. Theoretical because the Constitution is committed to a government in which the president represents all citizens of the States, voters and non-voters alike — and the maxim “one person, one vote” reinforces the notion that the president represents voters and non-voters. And the United States is not a single constituency in which one ignores States borders, but a number of smaller constituencies administering elections and determining voter eligibility. Practical because State decisions to enfranchise or disenfranchise a group of voters would no longer affect just that State, but would affect the national total — and States would have an incentive to manipulate voter eligibility laws to affect interstate vote totals. States would lower the voting age, disenfranchise felons, or redefine mental illness in order to add or subtract votes from a national vote tally. And any efforts to create a uniform federal standard for voting would stifle potential expansion of enfranchisement and inevitably disenfranchise some citizens who, today, have the right to vote. Presidential elections need States to continue to decide who votes, which precludes Electoral College reform.
Keywords: elections, election law, electoral college, federalism, presidential elections, one person one vote, voter eligibility, felon voting, disenfranchisement, constitutional law
JEL Classification: K00, K1, K10
Suggested Citation: Suggested Citation
Muller, Derek T., Invisible Federalism and the Electoral College (May 1, 2012). Arizona State Law Journal, Vol. 44, p. 1237, 2012; Pepperdine University Legal Studies Research Paper No. 2012/20. Available at SSRN: https://ssrn.com/abstract=2049630