Volume 100 - Issue 1 Georgetown Law Journal

Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional Change

Frustrated by their inability to secure passage of a federal constitutional amendment abolishing the Electoral College, some of its opponents have sought to establish the direct, popular election of the President by having individual states agree to appoint their presidential electors in accordance with the nationwide popular vote. Ostensibly designed to prevent elections, such as the one in 2000, in which the Electoral College “misfired” and chose the candidate who received fewer popular votes, the National Popular Vote Compact (NPVC)
has been adopted by several states. In this Article, I argue that the National Popular Vote Compact is an unnecessary and dangerous reform. It is unnecessary because the Electoral College is only modestly malapportioned and less so than many other accepted features of the U.S. political process, which distort
popular political preferences to a greater extent. Moreover, this malapportionment is simply the consequence of having a presidential election system that combines elements of majoritarianism and federalism, as other industrialized democracies have adopted. It is dangerous because the NPVC contains a host of defects that would make electoral misfires more likely and trigger a series of political and constitutional crises. The abolition or wholesale reform of the presidential election system requires a federal constitutional amendment; attempting to achieve some reform via a subconstitutional agreement among several states risks creating a presidential election system that is neither workable nor fair.

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