Download this Paper Open PDF in Browser

The Electoral College, the Right to Vote, and Our Federalism: A Comment on a Lasting Institution

47 Pages Posted: 20 Feb 2002  

Luis E. Fuentes-Rohwer

Indiana University Maurer School of Law

Guy-Uriel E. Charles

Duke University School of Law; Duke Law School

Abstract

The Electoral College has been subject to a constant barrage of criticism. This raises an obvious question: how has the College managed to survive despite its lack of popularity, its opacity and its generally controversial nature?

Commentators look to the wisdom and staying power of the founding generation as well as to the force of history and tradition. In this Article, we look carefully at a third possibility. That is, we look to the foundation of our political structure and the nature of our democratic commitments.

In this vein, we are particularly intrigued by the question of electoral legitimacy. To be clear, we are not interested in the question of legitimacy in and of itself. Rather, it is clear to us that the question of legitimacy - and more generally the larger debate surrounding the use of the College as the method of presidential selection - rests upon an infrequently articulated conception of democracy and an oft-debated notion of federalism.

In so doing, we conclude that before we can meaningfully talk about whether the Electoral College is worth keeping or changing, we must first come to grips with the scope of our democratic commitments. We must also grapple with the nature of the compromise that we have struck between state and federal interest in presidential elections. Until we struggle with and come to appreciate these two crucial foundations of our democratic ethos, the Electoral College debate will continue to consist of recycled ideas that will continue to be rejected.

Suggested Citation

Fuentes-Rohwer, Luis E. and Charles, Guy-Uriel E., The Electoral College, the Right to Vote, and Our Federalism: A Comment on a Lasting Institution. Florida State University Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=279916 or http://dx.doi.org/10.2139/ssrn.279916

Luis E. Fuentes-Rohwer (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-5003 (Phone)
812-855-0555 (Fax)

Guy-Uriel Charles

Duke Law School ( email )

Science Drive & Towerview Rd
Durham, NC 55455
United States

Duke University School of Law ( email )

Box 90360
Science Drive & Towerview Rd.
Durham, NC 27708
United States

Paper statistics

Downloads
201
Rank
126,852
Abstract Views
2,253