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Law, Rules, and Presidential Selection

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Abstract

Robert Dahl, in "How Democratic is the American Constitution?", criticizes the institution of the Electoral College as "morally, politically, and constitutionally wrong." This Article addresses the third of those claims. Dahl's critique, like many directed against the Electoral College, presumes a constitutional commitment to majoritarianism. This Article examines the rather commonplace departures from strict majoritarian rule in the Constitution, and concludes that the distortions from majoritarian preferences created by the Electoral College are actually much smaller in scope than those created by the U.S. Senate, the Article V amendment process and, to some extent, the House of Representatives. Moreover, subsequent constitutional developments - namely the "Reapportionment Revolution" of Baker v. Carr and later cases - have not enshrined a constitutional principle of simple majoritarianism that might undermine the constitutional foundation of the Electoral College. The Article then explores the controversies surrounding the presidential elections of 1800 and 1876 to argue that there are nonetheless important constitutional principles at stake in the operation of the Electoral College, namely in the manner in which Congress dictates rules for the settlement of disputes arising from presidential elections. The Article concludes by discussing one aspect of the Electoral College that could be susceptible to constitutional challenge: the "winner-take-all" system employed by nearly all states to allocate electoral votes. This practice, which is not mandated by the Constitution, could be challenged, not on the grounds that it is inconsistent with majoritarianism, but rather on the grounds that it gives the majority too much power - an argument that finds much stronger support in our constitutional jurisprudence.

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... (25) The Electoral College and the Problems of Minority Vote Dilution O NE OF THE MORE RECENT controversies of the Electoral College concerns whether this system unfairly dilutes the votes of racial and political minorities. Samuel Issacharoff (2005) offers an interesting discussion of the problems with the winner-take-all decision rule currently used by forty-eight states plus the District of Columbia to distribute their Electoral College votes. Issacharoff (2005) argues that, unlike the Electoral College itself, the winner-take-all system for choosing electors may be constitutionally challenged. ...
... Samuel Issacharoff (2005) offers an interesting discussion of the problems with the winner-take-all decision rule currently used by forty-eight states plus the District of Columbia to distribute their Electoral College votes. Issacharoff (2005) argues that, unlike the Electoral College itself, the winner-take-all system for choosing electors may be constitutionally challenged. He states that the argument against the Electoral College rests on the belief that it is inconsistent with the notion of majoritarianism. ...
... She sees it as a barrier to political and racial minorities. Issacharoff (2005) takes this argument one step further. He argues that the case law over the last several decades concerning the Constitution and the Voting Rights Act may be applicable to the Page40 winner-take-all system. ...
... Likewise, the third place candidate may receive some electoral votes roughly in proportion to his share of the votes not going to the top two candidates. In essence, the 8 Issacharoff (2005) argues that the winner-take-all system gives the majority too much power. 9 In 1956, the Humphrey Compromise was introduced and failed. ...
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