Popular Election of the President Without a Constitutional Amendment
Northwestern University Law School
Forthcoming in Green Bag
In the wake of the 2000 presidential election, there will be debate about whether a nationwide popular vote should be substituted for the electoral college mechanism for choosing the President. That debate may be stifled because of the widespread assumption that constitutional amendment is the only way to
effect this change. But, in fact, a constitutional amendment may not be necessary.
State legislatures have "plenary" power in establishing the manner of appointment of electors. There would seem to be no obstacle to a state legislature's providing beforehand that its electoral college delegation would be that pledged to the winner of the nationwide popular vote. If states with just 270 electoral votes adopted such an approach, the popular vote winner would perforce win the presidency. At the present time, a mere eleven states control 270 electoral votes.
Even fewer might suffice. Adoption by the swing state of Wisconsin with eleven electoral votes, or by Missouri and Minnesota with a total of 21 across the political divide, would tilt the system decidedly toward popular election. Deprived of the ability single mindedly to pursue an electoral college strategy, candidates would be even less likely than they have been historically to secure an electoral college win without winning the popular vote.
The politics are tricky, but if some states took the lead, others might follow and opposition to an amendment might melt away. The article draws on the history of the Seventeenth Amendment to assess the possibilities.
JEL Classification: G34, K22, K41
Date posted: March 27, 2001