Updating the electoral college: The national popular vote legislation

Harvard Journal on Legislation

Volumn 44, Issue 1, 2007, Pages 205-229

  Chang, Stanley ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 34247609393     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (231)

1. See Donald Lutz et al., The Electoral College in Historical and Philosophical Perspective, in CHOOSING A PRESIDENT 31, 47 (Paul D. Schumaker & Burdett A. Loomis eds., 2002).
2. National Popular Vote!, http://www.nationalpopularvote.com/npv/ (last visited Nov. 17, 2006).
3. The legislators included former Representative John Anderson (R-Ill.); former Senator Birch Bayh (D-Ind.); and former Representative John Buchanan (R-Ala.). See Hendrik Hertzberg, Count 'Em, NEW YORKER, Mar. 6, 2006, at 27.
4. See JOHN R. KOZA ET AL., EVERY VOTE EQUAL: A STATE-BASED PLAN FOR ELECTING THE PRESIDENT BY NATIONAL POPULAR VOTE 248-49 (2006) (describing the motivation and legal basis for the NPV legislation), available at http://www.every-vote-equal.com/ tableofcontents.htm.
5. See also Birch Bayh, U.S. Senator from Indiana, Press Conference on Election of the President by Popular Vote (Feb. 23, 2006) (unveiling the NPV legislation with NPV members).
6. The first resolution to amend the Constitution's Presidential election provisions was introduced in 1797. See LAWRENCE D. LONGLEY & ALAN G. BRAUN, THE POLITICS OF ELECTORAL COLLEGE REFORM 42 (2d ed. 1975). Since then, there have been over 1,000 proposed Constitutional amendments concerning the Electoral College.
7. See Lutz et al., supra note 1, at 45-46.
8. See U.S. CONST. art. II, § 1, cl. 2. The District of Columbia receives the number of electoral votes "to which the District would be entitled if it were a State."
9. See U.S. CONST. amend. XXIII, § 1.
10. SEE ID. art. II, § 1, cl. 2.
11. SEE ID. Under the Constitution, the power of the state legislatures is absolute; accordingly, a state may vest the power to select electors "in a board of Bank directors - a turnpike corporation - or a synagogue."
12. LUCIUS WILMERDING, JR., THE ELECTORAL COLLEGE 43 (1958) (quoting Rep. Storrs during a debate in 1826);
13. see NEAL R. PEIRCE & LAWRENCE D. LONGLEY, THE PEOPLE'S PRESIDENT: THE ELECTORAL COLLEGE IN AMERICAN HISTORY AND THE DIRECT VOTE ALTERNATIVE 44 (1981) ("The Constitution had given the state legislatures an absolute carte blanche" to shift "the method of choosing Presidential electors from year to year for the benefit of ruling circles in each state").
14. See Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam) ("The individual citizen has no federal constitutional right to vote for electors for the President of the United States"). The Colorado Constitution guarantees its citizens the right to vote for President.
15. See COLO. CONST, sched., § 20;
16. see also KOZA ET AL., supra note 4, at 38.
17. See GEORGE C. EDWARDS III, WHY THE ELECTORAL COLLEGE is BAD FOR AMERICA 9 (2004) ("Since the advent of Jacksonian democracy, the states have almost exclusively used the winner-take-all method for allocating their electors to candidates.")
18. See ME. REV. STAT. ANN. tit. 21-A, § 802 (2005);
19. NEB. REV. STAT. ANN. § 32-714 (2006).
20. See KOZA ET AL., supra note 4, at 54.
21. See U.S. CONST. amend. XII.
22. See id. 15 See id.
23. See id.
24. See id.
25. The Constitutional Convention deliberated on Presidential selection process for twenty-two days and held thirty votes on the subject. See EDWARDS, supra note 10, at 78-79. The idea for an Electoral College may have originated with the Maryland Constitution of 1776, which chose its state senate through a complicated procedure similar to the Electoral College.
26. See PEIRCE & LONGLEY, supra note 8, at 22. Cf. MD. CONST, of 1776, art. XIV-XVII (1776).
27. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 50 (Max Farrand ed., 1937).
28. See U.S. CONST, art. II, § 1. cl. 2.
29. See id.
30. See Akhil Reed Amar & Vikram David Amar, Why Old and New Arguments for the Electoral College Are Not Compelling, in AFTER THE PEOPLE VOTE: A GUIDE TO THE ELECTORAL COLLEGE 58, 58-59 (John C. Fortier ed., 2004). For example, Pennsylvania, which had a greater free population than Virginia, received fewer electoral votes. The electoral votes attributable to the slave population provided the margin that elected Jefferson over Adams in 1800. As a result of including slaves in population totals, Amar and Amar argue, a white, slave-owning Virginian was President for thirty-two of the first thirty-six years of the nation's existence.
31. See id.;
32. see also EDWARDS, supra note 10, at 87 (explaining that Madison believed that including non-voting slaves in population totals protected the southern states).
33. See PEIRCE & LONGLEY, supra note 8, at 23;
34. Abner J. Mikva, Doubting Our Claims to Democracy, 39 ARIZ. L. REV. 793, 795 (1997).
35. See John P. Roche, The Founding Fathers: A Reform Caucus in Action, 55 AM. POL. SCI. REV. 799, 811 (1961);
36. see also Lutz et al., supra note 1, at 39 ("Congress was expected to select the President most or even all of the time").
37. But see Gary L. Gregg II, The Origins and Meaning of the Electoral College, in SECURING DEMOCRACY: WHY WE HAVE AN ELECTORAL COLLEGE 1, 2 (Gary L. Gregg II ed., 2001) (questioning whether the Framers really intended to design the Electoral College to "fail" frequently) [hereinafter SECURING DEMOCRACY];
38. ROBERT W. BENNETT, TAMING THE ELECTORAL COLLEGE 20 (2006) (describing disagreement among the delegates as to whether the Electoral College would probably produce majorities).
39. See L. PAIGE WHITAKER & THOMAS H. NEALE, THE ELECTORAL COLLEGE: AN OVERVIEW AND ANALYSIS OF REFORM PROPOSALS 4 (Cong. Res. Serv. Rep. No. RL30804, Jan. 16, 2001), available at http://www.law.umaryland.edu/marshall/crsreports/crsdocuments/RL30804_01162001. pdf;
40. Comm. on Int'l Human Rights & the Comm. on Asian Affairs, The Rule of Law in Hong Kong "One Person, One Vote": The U.S. Electoral System and the Functional Constituencies Embodied in the Basic Law for the Election of the Chief Executive and of the Legislative Counsel, 59 REC. 374, 387 n.31 (2004) (describing expected reliance on the House contingency procedure).
41. See WHITAKER & NEALE, supra note 25, at 4-5.
42. See PEIRCE & LONGLEY, supra note 8, at 46. The district system was one of the earliest proposals to alter the Electoral College. References to such proposals date back to March 14, 1800.
43. See LONGLEY & BRAUN, supra note 5, at 57.
44. During the first Presidential election, for instance, five state legislatures directly appointed their electors without reference to the popular vote, two apportioned electors on a district basis, two used the winner-take-all system, one legislature let people choose by district but reserved two electors for itself,; and one could reach no decision and so submitted no electors. See PEIRCE & LONGLEY, supra note 8, at 32-33;
45. see also id. at app. B at 247 (detailing how states chose their Presidential electors between 1788 and 1836).
46. See id. at 46.
47. See JUDITH BEST, THE CASE AGAINST DIRECT ELECTION OF THE PRESIDENT: A DEFENSE OF THE ELECTORAL COLLEGE 23 (1975);
48. WHITAKER & NEALE, supra note 25, at 6-7 (describing how the winner-take-all system gives an advantage to states that control large blocs of electoral votes). The system for assigning electors affects the state's strategic importance and a given voter's influence, as evidenced by the following example: a winner-takeall state with fifteen electoral votes will yield a net gain of fifteen electors for its chosen candidate, while a state with the same number of electoral votes but a different elector assignment system will potentially split its electors among several candidates. Thus, a voter in a state with the winner-take-all system will influence more electoral votes.
49. See id.
50. See U.S. CONST. art. II, § 1, cl. 3, amended by U.S. CONST, amend. XII.
51. See id.
52. When Thomas Jefferson and Aaron Burr received the same number of electoral votes in the 1800 election, a bitter fight ensued in the House. Jefferson ultimately won after thirtysix rounds of balloting. See ROBERT W. BENNETT, TAMING THE ELECTORAL COLLEGE 22-23 (2006).
53. See U.S. CONST. amend. XII.
54. See EDWARDS, supra note 10, at 83. The Supreme Court has repeatedly acknowledged the original intent that electors exercise independent judgment in voting for President.
55. See. e.g., Williams v. Rhodes, 393 U.S. 23, 43-44 (1968) ("The College was created to permit the most knowledgeable members of the community to choose the executive of a nation whose continental dimensions were thought to preclude an informed choice by the citizenry at large.");
56. Ray v. Blair, 343 U.S. 214, 232 (1952) ("[T]he plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation's highest offices");
57. McPherson v. Blacker, 146 U.S. 1, 36 (1892) ("Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the Chief Executive").
58. But see ROBERT M. HARDAWAY, THE ELECTORAL COLLEGE AND THE CONSTITUTION: THE CASE FOR PRESERVING FEDERALISM 86-87 (1994) (arguing that Hamilton was in the minority in envisioning independent electors and that Madison's support of the Electoral College as "a vehicle for the expression of the people" was more representative of the Framers). Bennett has attacked Hardaway's view, arguing that if "electors were 'intended' to be dependent recorders of decisions made by the electorate," then the office of elector "simply served no purpose."
59. BENNETT, supra note 24, at 16.
60. Most states and the District of Columbia officially bind their electors. See WALTER BERNS ET AL., AFTER THE PEOPLE VOTE: A GUIDE TO THE ELECTORAL COLLEGE 7-8 (John C. Fortier ed., 2004). While the remaining states do not, their electors still vote as expected the vast majority of the time. Id. Of more than 21,000 electors chosen since the first presidential election, only ten have voted for someone other than their pledged candidate. Id.
61. See also WHITAKER & NEALE, supra note 25, at 9-10 (discussing efforts to bind Presidential electors) .
62. The first resolution to amend the Presidential election provisions of the Constitution was introduced on January 6, 1797. See LONGLEY & BRAUN, supra note 5, at 42.
63. See Lutz et al., supra note 1, at 45-46.
64. See PEIRCE & LONGLEY, supra note 8, at 131.
65. See H.R.J. Res. 681, 91st Cong. (1970);
66. see also PEIRCE & LONGLEY, supra note 8, at 188.
67. See CONG. QUARTERLY, INC., POWERS OF CONGRESS 279-80 (1976);
68. see also PEIRCE & LONGLEY, supra note 8, at 192.
69. See S.J. Res. 26, 96th Cong. (1979);
70. see also PEIRCE & LONOLEY, supra note 8, at 205.
71. See, e.g., WILMERDING, supra note 8, at 97. ("The national plebiscite system has one great handicap that cannot be overcome. It could be established only by constitutional amendment, and no amendment establishing it stands any chance whatever of passing the Senate or being adopted by the states").
72. See U.S. CONST. art. V.
73. Id.
74. S.R. 06-223, 65th Gen. Assem., Reg. Sess. art. 3 (Colo. 2006).
75. The eleven most populous states together have 271 electoral votes, which is one more than the 270 needed to constitute a majority of the Electoral College. See WHITAKER & NEALE, supra note 25, at 2-3;
76. Akhil Reed Amar & Vikram David Amar, How to Achieve Direct National Election of the President Without Amending the Constitution, FINDLAW, Dec. 28, 2001, http://writ.news.findlaw.com/amar/20011228. html.
77. See also Fed. Election Comm'n, Distribution of Electoral Votes, http://www.fec.gov/pages/elecvote.htm (last visited Nov. 8, 2006) (listing the present distribution of electoral votes).
78. Polls of state legislators in 1966 revealed that at least 50% of legislators in forty-four states favored direct popular election of the President. See PEIRCE & LONGLEY, supra note 8, at 170-71. Over 59% of legislators overall supported a direct popular vote.
79. See COMM'N ON ELECTORAL COLL. REFORM, AMER. BAR ASSOC., ELECTING THE PRESIDENT 7 (1967). Furthermore, Gallup polls since 1944 have consistently shown that a majority of the American public supports direct election. FairVote, Gallup Direct Election Polls Since 1944, http://www.fairvote.org/?page=1823 (last visited Nov. 18, 2006). The most recent survey, taken before the 2004 Presidential election, found 61% approval, 35% disapproval, and 4% undecided. Id.
80. Editorial, How to Drop Out of the Electoral College, MINNEAPOLIS STAR TRIB., Mar. 27, 2006, at A8.
81. See, e.g., H.R. 2948, 2006 Assem., Reg. Sess. art. 3 (Cal. 2006); S.R. 06-223, 65th Gen. Assem., Reg. Sess. art. 3 (Colo. 2006).
82. See also National Popular Vote!, The Plan, http://www. nationalpopularvote.com/npv/index.php?option=npvcontent&task= page&page_id= 4 (last visited Nov. 18, 2006) (describing NPV legislation in general terms).
83. This innovation originated in a paper by Professor Robert W. Bennett of Northwestem Law School. See Robert W. Bennett, Popular Election of the President Without a Constitutional Amendment, 4 GREEN BAG 2D 241 (2001). Professors Akhil Reed Amar of Yale Law School and Vikram David Amar of Hastings College of Law later promoted the paper in December 2001.
84. See Amar & Amar, supra note 22. The idea received renewed attention with the formation of National Popular Vote ("NPV"), the organization now dedicated to passing the legislation, in early 2006.
85. See Rick Lyman, Innovator Devises Way Around Electoral College, N.Y. TIMES, Sept. 22, 2006, at A22 (describing formation of NPV).
86. See Hertzberg, supra note 3, at 27.
87. See, e.g., H.R. 2948, 2006 Assem., Reg. Sess. art. 4 (Cal. 2006), available at http://www.leginfo.ca.gov/pub/bill/asm/ab_2901-2950/ ab_2948_bill_20060907_enrolled.pdf. ("This agreement shall take effect when states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state"). Accordingly, to assure success of the interstate compact, states must pass the NPV legislation "in substantially the same form" as other states.
88. See id. See also S.R. 06-223, 65th Gen. Assem., Reg. Sess. art. 4 (Colo. 2006) (requiring that other states have enacted the compact in "substantially the same form" before the NPV legislation can take effect);
89. KOZA ET AL., supra note 4, at 248-49 (showing original version proposed by the NPV).
90. See H.R. 2948 art. 1 & 2.
91. See id. art. 2. The bill also mandates the so-called short ballot, listing only the names of the candidates for President and Vice President, not the names of electors.
92. See id. an. 5.
93. See id. art. 3.
94. See id.
95. See id.
96. See H.R. 2948, 2006 Assem., Reg. Sess. art. 3 (Cal. 2006).
97. See id. art. 4. This provision prevents potential disruptions to ongoing Presidential campaigns.
98. See KOZA ET AL., supra note 4, at 266.
99. See BEST, supra note 30, at 23.
100. See Bennett, supra note 51 and accompanying text.
101. Assuming the interstate compact is constitutionally permissible, the compact would be legally binding on its signatory states. [Compacting states are bound to observe the terms of their agreements, even if those terms are inconsistent with other state laws. In short, compacts between states are somewhat like treaties between nations, Compacts have the force and effect of statutory law (whether enacted by statute or not) and they take precedence over conflicting state laws, regardless of when those laws are enacted. COUNCIL OF STATE GOVS., INTERSTATE COMPACTS AND AGENCIES 2003, at 6 (2003). Cf. Virginia v. Maryland, 540 U.S. 56, 66 (2004) (noting that congressionally approved interstate compacts have the force of a federal statute). Upon taking effect, the NPV legislation's interstate compact would require states to honor their commitment; they could not then renege by reverting to a state-based method of assigning their electoral votes.
102. U.S. CONST. art. I, § 10, cl. 3. Congress may grant its approval in the form of a simple joint resolution. Congress's consent may also be implied.
103. See Virginia v. Tennessee, 148 U.S. 503, 521 (1893) ("[Congress's] consent may be implied, and is always to be implied when Congress adopts the particular act by sanctioning its objects and aiding in enforcing them");
104. KOZA ET AL., supra note 4, at 209.
105. See U.S. CONST, art. I, § 10, cl. 3 ("No State shall, without the Consent of Congress, . . . enter into any Agreement or Compact with another State . . . .").
106. See KOZA ET AL., supra note 4, at 219 ("The Supreme Court has interpreted this clause to allow states to enter into compacts without Congressional consent").
107. See also Virginia v. Tennessee, 148 U.S. 503, 521-22 (1893) (suggesting that consent of Congress to an interstate compact may be implied by subsequent action).
108. See, e.g., U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 459 (1978);
109. New Hampshire v. Maine, 426 U.S. 363, 369-70 (1976).
110. See U.S. Steel Corp., 434 U.S. at 473.
111. See id.
112. Virginia, 148 U.S. at 520.
113. See also KOZA ET AL., supra note 4, at 226-27. The Court applied the same test in U.S. Steel Corp. v. Multistate Tax Comm'n, when it upheld a compact lacking express Congressional approval after finding that the compact did not "authorize the member states to exercise any powers they could not exercise in its absence." 434 U.S. at 473.
114. See Oregon v. Mitchell, 400 U.S. 112, 286-87 (1970).
115. KOZA ET AL., supra note 4, at 229.
116. McComb v. Wambaugh, 934 F.2d 474, 479 (3d Cir. 1991). See also Star Sci., Inc. v. Beales, 278 F.3d 339, 360 (4th Cir. 2002) (finding that the Master Settlement Agreement did not violate the Compact Clause because it did not authorize the exercise of any powers that the states did not already possess); Ne. Bancorp, Inc. v. Bd. of Governors of Fed. Reserve Sys., 740 F.2d 203, 208 (2d Cir. 1984) (finding the Bank Holding Companies Act reserved power to the states to form the equivalent of an interstate compact).
117. See KOZA ET AL., supra note 4, at 276 (describing the NPV supporters' strategy for enacting the NPV legislation).
118. Gallup polls taken in 1944, 1966, 1967, 1968, 1977, 1980, 2000, and 2004 all revealed majority support for direct election of the President. See FairVote, Gallup Direct Election Polls Since 1944, http://www.fairvote. org/?page =1823 (last visited Oct. 2, 2006).
119. For example, Illinois's statutory initiatives are advisory only. In other states, election administrators and the courts commonly disqualify ballot measures. See KOZA ET AL., supra note 4, at 277-79 (describing disadvantages of initiative processes for different states).
120. See id. at 279 ("In practice, the authors of this book believe that the vast majority of the 270 electoral votes would, as a practical matter, come from state legislatures").
121. See id. at 276.
122. See id. at 203 ("Enactment of an interstate compact is generally accomplished in the same way that ordinary state laws are enacted"). For the District of Columbia, enactment requires Congress to consent to the compact on its behalf.
123. See id. at 210.
124. See Press Release, National Popular Vote, Five New York Republicans Introduce Bill for Nationwide Election of President - Vermont and Arizona Sponsors Announced for 2007 (May 25, 2006), http://www. nationalpopularvote.com/npv/index.php?option=npvcontent& task=viewContent&content_id=71 (last visited Nov. 18, 2006).
125. See Press Release, National Popular Vote, Colorado Senate Passes National Popular Vote Bill on Second Reading (Apr. 14, 2006), http://www.nationalpopularvote.com/npv/index.php?option=npvcontent&task= viewContent&content_id=59 (last visited Nov. 18, 2006); Press Release, National Popular Vote, California Legislature Gives Final Approval to Bill for Nationwide Popular Election of the President (Aug. 30,2006), http://www.nationalpopularvote.com/npv/index.php?optimon=npvcontent&task= viewContent&content id=8 8 (last visited Nov. 18, 2006).
126. See Press Release, National Popular Vote, 29 States Now Have Sponsors for Bill for Nationwide Popular Election of the President for Upcoming 2007 Legislative Sessions (Oct. 3, 2006), http://www.nationalpopularvote.com/ npv/index.php?option=npvcontent& task=viewContent&content_id= 105 (last visited Nov. 18, 2006).
127. See Nancy Vogel, A. Vote to Quit the Electoral College, L.A. TIMES, Aug. 31, 2006, at B1.
128. Governor Schwarzenegger (R-Cal.) said the bill ran "counter to the tradition of our great nation." See Veto in California on Electoral College, N.Y. TIMES, Oct. 3, 2006, at A17.
129. Id.
130. See Summarized History for Bill Number SB06-223, http://www.leg.state.co. us/clics2006a/csl.nsf/billsummary/b8fdcf0acad0de3687257131007f0795 (last visited Nov. 18, 2006).
131. KOZA ET AL., supra note 4, at 281 (discussing how the NPV legislation will be an issue during the 2008 election).
132. See id. at 16;
133. WHITAKER & NEALE, supra note 25, at 6.
134. See, e.g., Jack N. Rakove, The E-College in the E-Age, in THE UNFINISHED ELECTION OF 2000, at 201-02 (Jack N. Rakove ed., 2001) ("In the days immediately preceding the Presidential election of 2000, the recognition dawned that Americans might well deliver a split verdict, granting a plurality in the popular vote to one candidate and a majority in the Electoral College to the other");
135. TARA ROSS, ENLIGHTENED DEMOCRACY: THE CASE FOR THE ELECTORAL COLLEGE 8-9 (2004) (discussing rampant speculation before the 2000 election that Democratic Presidential candidate Al Gore might win the electoral vote without a popular majority).
136. See KOZA ET AL., supra note 4, at 16;
137. WHITAKER & NEALE, supra note 25, at 6. It is possible that some misfires were in part the result of strategic decisions: some candidates may have campaigned not to win the most popular votes possible nationwide, but to win the most electoral votes. A direct popular vote would probably have caused candidates to campaign differently, which may have affected the outcome of some elections.
138. See BENNETT, supra note 24, at 49.
139. See LONGLEY & BRAUN, supra note 5, at 3.
140. ALEXANDER M. BICKEL, REFORM AND CONTINUITY: THE ELECTORAL COLLEGE, THE CONVENTION, AND THE PARTY SYSTEM 15-16 (1971) (expanded & rev. ed. of "The New Age of Political Reform" 1968) ("[N]ear-perfect apportionment is frustrated as well by state lines, which no district may cross, so that a state will gain or lose representation if after it carves a number of equal districts out of its population, it has a fraction left over").
141. Arguably, the Electoral College's tendency to reflect popular vote result "may be far more reliable than the critics admit." BEST, supra note 30, at 58-59. She further predicts that the risk of misfire will continue to decline, making the "runner-up President [rare] indeed."
142. Id. at 67.
143. The Electoral College has been called simply "a vehicle for the expression of the people," where "the strongest evidence [demonstrates] that the framers did not intend electors to exercise independent judgment." HARDAWAY, supra note 35, at 86.
144. In 1960, Richard Nixon visited every state during his Presidential campaign. During the final three weeks of that campaign, Kennedy and Nixon spent 88% of their time in twenty-four battleground states. See KOZA ET AL., supra note 4, at 12. In 1976, eleven states did not receive a single visit from the Democratic candidates for President and Vice President. Twelve other states received only one visit.
145. See Mayer et al., The Electoral College and Campaign Strategy, in CHOOSING A PRESIDENT, supra note 1, at 103.
146. Hertzberg, supra note 3, at 27-28 (stating that the Electoral College should be blamed for the "death of participatory politics in two-thirds of the country.").
147. See KOZA ET AL., supra note 4, at 9-10.
148. See also U.S. Presidential Campaign Spending Triples, CBC NEWS, Nov. 1, 2004, http://www.cbc.ca/world/story/2004/11/01/ us_campaigncost041101.html (last visited Nov. 18, 2006).
149. See KOZA ET AL., supra note 4, at 10. These ignored states included California, Illinois, Massachusetts, Georgia, and New Jersey. Id.
150. Id. at 11.
151. Id. at 10.
152. See Bonnie J. Johnson, Identities of Competitive States in U.S. Presidential Elections: Electoral College Bias or Candidate-Centered Politics?, 35 PUBLIUS 337, 339 (2005) ("If states that are competitive change over time, it would indicate that the Electoral College bias is not systematic and, thus, not detrimental to state representation or democracy").
153. See Allan Cigler et al., Changing the Electoral College: The Impact on Parties and Organized Interests, in CHOOSING A PRESIDENT, supra note 1, at 99.
154. See ROSS, supra note 89, at 54. Federalism, in Madison's classic characterization, rests on the duality of the federal and state governments:In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. THE FEDERALIST No. 5, at 291 (James Madison) (Clinton Rossiter ed., 1999).
155. See ROSS, supra note 89, at 54.
156. ROSS, supra note 89, at 76.
157. Id. at 57-58.
158. Id. at 58.
159. See Phyllis Schlafly, Subversive Plan, N.Y. SUN, May 9, 2006, at 9 ("The elimination of the Electoral College would overnight make irrelevant the votes of Americans in about 25 states because candidates would zero in on piling up votes in large-population states");
160. Ross, supra note 89, at 182 ("Getting rid of the Electoral College would allow Presidential candidates to win with positions that are not at all in the interest of less populous states").
161. See Schlafly, supra note 109 at 9. ("The Electoral College ensures that no single faction or issue can elect a President because he must win many diverse states to be elected"). Yet the election of 1860 indicates that the Electoral College did not provide complete protection against sectionalism. Abraham Lincoln, a highly sectional candidate, won a majority of the Electoral College in that election even though he did not receive a single vote south of Virginia (he was not even on the ballot in ten states) and won less than 40% of the overall popular vote.
162. See Amar & Amar, supra note 22, at 62.
163. Keith Epstein & Chris Echegaray, Hispanic Dynamics, TAMPA TRIB., Sept. 18, 2005, Nation/World, at 1.
164. See LONGLEY & BRAUN, supra note 5, at 9.
165. That strategy worked in 1824 when Henry Clay apparently promised his support to John Quincy Adams in exchange for Adams's promise to make Clay his Secretary of State. Clay's support gave Adams victory over Andrew Jackson who had won a plurality of the national popular vote. See id. at 36.
166. Thurmond won 2.4% of the popular vote and 39 electoral votes, but not enough to prevent Harry Truman from winning the majority of the electoral votes. See U.S. DEP'T OF COMMERCE, STATISTICAL ABSTRACT OF THE U.S. 72 (115 ed. 1995).
167. George C. Wallace won 13.5% of the popular vote and forty-six electoral votes, again not enough to prevent Richard Nixon's electoral majority of 301 votes. Id.
168. Many more (59%) rural voters supported Bush than supported Gore (37%). See Breaking Down the Electorate, TIME, Nov. 20, 2000, at 74. An overwhelming 71% of voters in cities with over 500,000 people cast ballots for Gore, while Bush earned only 26% of their votes.
169. Id. But see Ross, supra note 89, at 182 (noting that Bush carried at least one state in every region of the country and carried the election for over 2 million square miles of the country, while Gore carried only 580,000 square miles). The statistics cited by Ross demonstrate the extent of the rural-urban divide.
170. See Ross, supra note 89, at 182.
171. See supra Part III.B (discussing the diminishing number of battleground states).
172. The equality of state representation in the Senate is immune from the Article V amendment process of the Constitution. See U.S. CONST. art. V ("[N]o state, without its Consent, shall be deprived of its equal Suffrage in the Senate.").
173. See Robert L. Lineberry et al., The Electoral College and Social Cleavages: Ethnicity, Class, and Geography, in CHOOSING A PRESIDENT, supra note 1, at 161, 163. While established democracies averaged 73% turnout, turnout in the 2000 American presidential election was 49.3%.
174. See Int'l Inst. for Democracy & Electoral Assistance, Voter Turnout: Main Findings, http://www.idea.int/vt/findings.cfm (last visited Nov. 18, 2006).
175. See, e.g., Burdett A. Loomis et al., Electoral Reform, the Presidency, and Congress, in CHOOSING A PRESIDENT, supra note 1, at 74, 78 (arguing that minority party voters would vote in increased numbers for President in a direct election system).
176. See, e.g., Robert M. Stein et al., Citizen Participation and Electoral College Reform, in CHOOSING A PRESIDENT, supra note 1, at 125-26 (arguing that electoral reform will have only a slight effect on voter turnout).
177. See Scott L. Althaus, How Exceptional Was Turnout in 2004?, 15 POL. COMM'N REP. 1 (2005), available at http://www.ou.edu/policom/1501_2005_winter/commentary.htm (finding that the nine battleground states of Florida, Iowa, Minnesota, Nevada, New Hampshire, New Mexico, Ohio, Pennsylvania, and Wisconsin experienced an 8.4% increase in turnout over 2000, while the other forty-two jurisdictions saw only a 4.7% increase).
178. See FAIRVOTE, THE SHRINKING BATTLEGROUND: THE 2008 PRESIDENTIAL ELECTIONS AND BEYOND 13 (2005), available at http://www.fairvote.org/ media/perp/Shrinking_Battle ground_Final.pdf (reporting on the decrease in number of competitive battleground states in presidential elections and the likely civil and partisan consequences).
179. See Michael M. Uhlmann, Creating Constitutional Majorities: The Electoral College After 2000, in SECURING DEMOCRACY, supra note 24, at 103, 106-07 ("Mass-market television advertising is expensive, but per capita it is the cheapest route to electoral success when what counts is the sheer number of votes rather than their state of residence").
180. See William T. Gossett, Direct Popular Election of the President, in ABA SPECIAL COMMITTEE ON ELECTION REFORM, ELECTING THE PRESIDENT 58 (rev. ed. 1977) ("This feature of our system is clearly a political monstrosity, fully distorting the most elementary principles of self-government").
181. LONGLEY & BRAUN, supra note 5, at 37.
182. Arthur Schlesinger, Jr., Fixing the Electoral College, WASH. POST, Dec. 19, 2000, at A39.
183. Daniel Patrick Moynihan, The Electoral College and the Uniqueness of America, in SECURING DEMOCRACY, supra note 24, at 87-88.
184. See id. at 100 (arguing that the political parties would be replaced by an enormously powerful media).
185. See, e.g., Cigler et al., supra note 102, at 90-91.
186. See Stein et al., supra note 121, at 134.
187. See id.
188. See HARDAWAY, supra note 35, at 18-19. At least one Electoral College supporter points out that the Nazis in Germany took advantage of direct popular election to establish a minority power base, and ultra-nationalist Vladimir Zhirinovsky's 23% could have swung the 1993 Russian Presidential election.
189. See id.
190. See BEST, supra note 30, at 117-18.
191. See PEIRCE & LONOLEY, supra note 8, at 85 ("The vast preponderance of Americans apparently still consider it a wasted vote to support a maverick candidacy");
192. Michael Barone, The Electoral College and the Future of American Political Parties, in SECURING DEMOCRACY, supra note 24, at 79, 83 (arguing that "[d]on't waste your vote" is a powerful argument against third party candidates).
193. See Amar & Amar, supra note 22, at 63.
194. See Schlafly, supra note 108, at 9. ("If the popular vote were controlling, chaos would be the predictable result in any close election, An allegation of voter fraud in one state would begin a fatal chain reaction of challenges and recounts as campaign managers try to scrape up additional hundreds of votes in many states at once");
195. see also HARDAWAY, supra note 35, at 158-60 (discussing delays in tabulating and reporting results during recounts).
196. See Lutz et al., supra note 1, at 44. Many states have automatic recount provisions if margins are within a certain percentage. For example, New Mexico requires a recount if the margin is within 0.3% - which would have included the Kennedy-Nixon 1960 results.
197. See id.
198. See id. at 43. Other evidence suggests that the error rate may be even higher. In one study, lever machines had an error rate of 2.2%, optical scan machines had an error rate of 2,7%, and electronic machines had an error rate of 3.1%.
199. See Martha E. Kropf & Stephen Knack, Balancing Competing
200. See Teresa C. Green et al., Voting Technology and Voting Access in Twenty-first-century America, in COUNTING VOTES, supra note 139, at 105-06. One comprehensive study found that 6% of ballots cast nationwide went uncounted due to faulty voting machines, poorly designed ballots, or absentee ballot mistakes.
201. See Neal Peirce, Reforming Politics: A 'One-Stop' Guide, STATELIINE.ORG, July 17, 2006, http://www.stateline.org/live/ details/story? contentld=127312 (last visited Nov. 18, 2006). None of these problems, of course, is unique to the presidential elections; they are equally true for state and local elections.
202. See KOZA ET AL., supra note 4, at 362.
203. See id. at 229.
204. See id. at 364 (arguing that the states are always prepared to conduct recounts because recounts occur on a state level "in virtually every election cycle").
205. See KOZA ET AL., supra note 4, at 18-19.
206. In just one example, the U.S. Commission on Civil Rights investigated allegations of voter fraud and disenfranchisement during the 2000 election in Florida and concluded that "[d]espite the closeness of the election, it was the widespread voter disenfranchisement, not the dead-heat contest, that was the extraordinary feature in the Florida election. The disenfranchisement was not isolated or episodic. And state officials failed to fulfill their duties in a manner that would prevent this disenfranchisement." U.S. COMM. ON CIVIL RIGHTS, VOTING IRREGULARITIES IN FLORIDA DURING THE 2000 PRESIDENTIAL ELECTION 99 (2001), available at http://www.usccr.gov/pubs/ vot2000/report/main.htm.
207. KOZA ET AL., supra note 4, at 18. For example, the 1876 Tilden-Hayes contest, though not particularly close on a national level, included five states with margins under 3000 votes and was therefore a controversial election.
208. See id. at 19. One effect of the tendency to artificially manufacture crises in close state outcomes is the potential for litigation. The two major candidates in 2004, George W. Bush and John Kerry, collectively stockpiled more than $20 million in their general election legal and accounting compliance funds in anticipation of legal battles akin to those of 2000. Bush had $15.6 million in his GELAC fund, and Kerry had $7.2 million in his GELAC fund.
209. See Chris Cillizza, Bush, Kerry Have Leftover Cash, ROLL CALL, Jan. 27, 2005.
210. KOZA ET AL., supra note 4, at 18.
211. See LONGLEY & BRAUN, supra note 5, at 85.
212. See PoliticalMoneyLine, 2004 Presidential Electronic Filing Summary, http://www.fecinfo.com/cgi-win/pmll_sql_PRESIDENTIAL.exe?DoFn=2004 (last visited Nov. 18, 2006) (showing funding itemization by candidate). The candidates spent a total of $891 million.
213. See id.
214. See Robert Schlesinger, Plotting the Cash Path: Potential 2008 Presidential Candidates Are Already Stockpiling Campaign Money, CAMPAIGNS & ELECTIONS, Sept. 2005, at 19 (discussing the political pressures on candidates to opt out of federal fund matching programs).
215. NPV supporters have acknowledged the increased cost of campaigning in larger states than smaller ones, but they have never explicitly addressed the issue of increased costs in a direct-vote presidential election. See KOZA ET AL., supra note 4, at 172 ("Changing the statewide percentage of the popular vote in a large state is more costly (in terms of campaigning time, advertising, and organizational efforts) than generating the same percentage change in a small state").
216. See Uhlman, supra note 124, at 106 ("Mass-market television advertising is expensive, but per capita it is the cheapest route to electoral success when what counts is the sheer number of votes rather than their state of residence").
217. See H.R. 2948, 2006 Assem., Reg. Sess. art. 4 (Cal. 2006). For example, if one political party saw an advantage in reverting to the winner-take-all Electoral College system, it might be able to persuade enough states to withdraw from the agreement, resulting in a reversion to the current winner-take-all system.
218. See id. art. 3.
219. See supra Part III.
220. See supra Part I.
221. See supra Part III.A.
222. See supra Part III.B.
223. See supra Part III.C.
224. See supra Part III.D.
225. See supra Part III.E.
226. See supra Part III.F.
227. See supra Part III.G.
228. See supra Part III.F.
229. See supra Part III.H.
230. See supra Part III.I.
231. While the choice between the present Electoral College system and the NPV legislation could perhaps be reduced to a "choice of rules" question, this simplification diminishes the role of these rules in promoting particular democratic values. To the extent that a certain rule reaffirms this central, desirable tenet of a political system, it should be favored over other alternatives. Cf. Akhil Reed Amar & Vikram David Amar, Why Old and New Arguments for the Electoral College Are Not Compelling, in AFTER THE PEOPLE VOTE: A GUIDE TO THE ELECTORAL COLLEGE 61 (John C. Fortier, ed., 2004) (distinguishing the presidential election method from merely a choice of rules in a sports game)