Academic

Electoral College Reform at Michigan's First Impressions

By Lawrence Solum

The Michigan Law Review has announced an online symposium:

The Michigan Law Review?s companion journal First Impressions today published an online symposium on Recent Proposals for Electoral College Reform.

Several proposals for changing the manner in which electoral votes are assigned have been increasingly debated since the 2008 presidential campaign began. Among these are recent suggestions that states assign their electoral votes based on the popular vote results in individual congressional districts or assign their electoral votes statewide based on the national popular vote.  The symposium contributors explore the viability and advisability in today?s political climate of these and other Electoral College reform proposals.   

Ohio State University?s Moritz College of Law Professor Daniel P. Tokaji argues that the thirty-five day period in which states can take advantage of the ?safe harbor? provision under federal law offers insufficient time for the resolution of post-election disputes over electors. Professor Tokaji proposes a new timetable that would allow states more time to complete recount and contest proceedings in the event of close, contested elections?a change he feels is justified on both fairness and federalism grounds.

Sacramento-based election law attorney and former legal counsel for California Governor Arnold Schwarzenegger and the California Republican Party Thomas W. Hiltachk explains and defends his proposed statewide initiative that would change California?s winner-take-all system of awarding its fifty-five electoral votes to a system that arguably would make California more relevant to the election process. If the California initiative took effect, the state would award the presidential candidate winning the popular vote in each of the state?s congressional districts one electoral vote while awarding the winner of the state?s overall popular vote two electoral votes.

Washington, D.C.-based election law attorney and former Democratic campaign manager Sam Hirsch critiques Hiltachk?s proposed initiative, arguing that the congressional-district system increases the chances of the presidency being awarded to the second-place finisher in popular votes, is significantly biased to favor one political party, and is founded on the erroneous assumption that congressional-district lines are politically ?neutral? and thus well suited to functions other than electing members of the U.S. House of Representatives.

University of Chicago Dean of Social Sciences John Mark Hansen examines the effects of the Electoral College system and the proposed reforms to it on the prospect of equal voice in elections, concluding that if every vote is to count equally, the only solution is to elect the president by direct popular vote.

University of California?s Hastings College of the Law Professor Ethan J. Leib and Hastings College of the Law J.D. Candidate Eli J. Mark critique three state-based reform systems?reforms granting electoral votes based on winning congressional districts, reforms granting electoral votes in proportion to the state?s popular vote, and reforms granting all of a state?s electoral votes to the nationwide popular vote winner?and note the effects of partisan principles on defenses and critiques of them.

Massachusetts Institute of Technology Visiting Scholar Alexander S. Belenky discusses instituting direct popular election of the president as well as the National Popular Vote interstate compact but also evaluates a third option that makes the nationwide popular vote a decisive factor in electing a president but retains the Electoral College as a safeguard against failure to elect a president.

University of Michigan J.D. candidate Daniel Rathbun contends both legal and sociological theory can explain the National Popular Vote compact?s failure to take hold. Legally, Rathbun argues, the NPV overlooks significant constitutional and practical-institutional obstacles. Sociologically, he contends, the NPV is structurally incapable of dis-embedding the federalist theory underlying the Electoral College.

To download a PDF of the entire symposium, feel free to click here.

Additional First Impressions content is available at http://www.michiganlawreview.org

Full post as published by Legal Theory Blog on January 31, 2008 (boomark / email).