Electoral College Reform and Voting Rights

Article excerpt

INTRODUCTION

In 2007, North Carolina and California, two of the "Mega-States," (1) made efforts to alter the allocation of Electoral College votes. The North Carolina legislature considered, but ultimately abandoned, a promising effort to reallocate Electoral College votes at the congressional district level. This effort passed the state House of Representatives but then ran afoul of other Democratic Party forces at the national level, who encouraged letting the legislation die. Soon after, the California legislature created an initiative to persuade California voters to change the method by which California allocates its presidential elector votes. Efforts to determine how to allocate electoral votes is the subject of ongoing debates in intellectual circles, and a variety of election law issues arise in that debate.

This paper explores constitutional and voting rights issues arising from the proposed North Carolina and California reforms. It then explores the potential voting rights issues associated with allocating Electoral College votes in other states. Issues of racial fairness potentially affect how states allocate Electoral College votes, either in affecting how states might change their Electoral College allocations or even whether they should change those allocations. The paper then consider the potential constitutional implications for the Voting Rights Act ("VRA") (2) were it applied to presidential elector choice systems in the state.

In Section 1, we discuss the history of at-large elections in the United States as the practice relates to issues of racial fairness in elections. In this section, we also describe the function of the Electoral College in the context of at-large elections. If challenges to at-large electoral selection were to come before federal courts, the challenges would have to satisfy the court-created tests first laid out in Thornburg v. Gingles. (3) In Section 2, we discuss possible Gingles challenges. In Section 3, we examine more generally the development of challenges to States' Article II, Section 1 powers. In this section, we also lay out a model for understanding potential constitutional challenges to States' historical power to choose their electoral slates. We argue that because of the States' specific enumerated power in Article II Section 1 to provide for the appointment of electors, combined with doctrinal precedent, First and Second order Constitutional principles are created that should be seriously considered in any challenge to States' Article II power of electoral selection. First order principles refer specifically to enumerated constitutional amendments that can directly limit State power. Second order principles are derivations of Congress' enforcement power within each amendment that, apart from directly enforcing the text itself, are nevertheless limited by Congress' own powers, the separation of powers on the national level, and also principles of federalism. In short, challenges to States' Article II, Section 1 powers are not easily transposed to VRA concerns as some scholars suggest, especially in light of the Supreme Court's decision in City of Boerne v. Flores, (4) which placed additional limits on Congress' enforcement powers under the Fourteenth Amendment. Thus while this paper shows how a Constitutional challenge to at-large systems of electoral selection could be made through Gingles, it also shows the limits to such challenges more generally.

I. AT-LARGE ELECTIONS AND VOTING RIGHTS

At-large elections have a long tradition in the United States. During the Republic's early days, many states chose their members of Congress at-large. (5) Until finally banned in the late 1960s, New Mexico and North Dakota continued to elect their two representatives at-large. (6) Also, into the 1960s, some states elected at least one at-large member. (7) States often adopted this practice when the state gained a representative as a result of reapportionment. …