13 Pages Posted: 26 Apr 2005 Last revised: 26 Jun 2009
Tara Ross has taken on a herculean task: an exposition of and a defense of the electoral college, in conjunction with a defense of prevailing state statutory and customary presidential election processes, including: first-past-the-post, winner-take-all with regard to appointing electors.
It is a valiant, romantic, Don Quixote like effort. But in the end: the windmill still wins. It always does. Her explanation of prevailing practices falls short of the mark. And this I suggest might be a sign that the system is too complex and unwieldy. Ross also defends the electoral college for consistently producing the right winner, notwithstanding 1876 and 2000 where the electoral college winner (under the final tally) had fewer popular votes. But this defense, so common among defenders of the electoral college, fails to recognize that many states historically were rotten boroughs where those with the de jure and de facto vote controlled the whole state's slate of electors. So the if-it-ain't-really-really-broke-let's-not-fix-it-Burkean position is not so clear. Lastly, Ross's defense of the electoral college, rooted in federalism and states' rights concerns seems, to this reviewer at any rate, somewhat untethered from the actual details of the electoral college she seeks to defend.
Keywords: democracy, republic, the Federalist Papers, electoral college
Suggested Citation: Suggested Citation
Tillman, Seth Barrett, Betwixt Principle and Practice: Tara Ross's Defense of the Electoral College. Reviewing: Enlightened Democracy: The Case for the Electoral College (World Ahead Publishing 2004). N.Y.U. Journal of Law & Liberty, Vol. 1, p. 922, 2005. Available at SSRN: https://ssrn.com/abstract=711261