Academic journal article Northwestern University Law Review

Electoral College Reform: Deja Vu

Academic journal article Northwestern University Law Review

Electoral College Reform: Deja Vu

Article excerpt

REFORM AND CONTINUITY; THE ELECTORAL COLLEGE, THE CONVENTION, AND THE PARTY SYSTEM.

By Alexander M. Bickel. Harper & Row, 1971.1

THE CASE AGAINST DIRECT ELECTION OF THE PRESIDENT: A DEFENSE OF THE ELECTORAL COLLEGE.

By Judith Best. Cornell University Press, 1971.

THE POLITICS OF ELECTORAL COLLEGE REFORM.

By Lawrence D. Longley & Alan G. Braun. Yale University Press, 1972.

The 2000 presidential election has stirred up a great deal of concern about the evils of the electoral college. Before deciding to plunge into a new effort to abolish that seeming relic of an eighteenth-century compromise, one would do well to revisit a more recent era, the period from 1960 to 1971, when the proposal to amend the Constitution to provide for the direct election of the President came as close as it has ever come to success. This Review considers three books from that era that recount the story of how the idea of the direct election of the President gained currency and eventually met defeat. What can the story of the 1960s era effort tell us about the newly stimulated move to amend the Constitution? Does the 2000 election any more than the 1960 and the 1968 elections demonstrate the folly of the electoral college? If the legal and political climate has changed since then, is it a change more favorable to amending the Constitution, or less?

I. ELECTORAL COLLEGE REFORM CIRCA 1970

In The Politics of Electoral College Reform, Lawrence Longley and Alan Braun tell the story from the point of view of the direct vote proponents. In particular, they recount the activities of the Constitutional Amendment Subcommittee of the Senate Judiciary Committee under the leadership of Senator Birch Bayh from 1969 to 1971. Bayh, who wrote the foreword to the book, took the position that direct popular election of the President is "the only real reform" and worked to defeat the bewildering array of alternate plans.3 His efforts left the pristine direct vote solution as the only alternative to the existing electoral college system, which many at the time assumed had reached its end.4

Ridding the constitutional structure of its electoral college component has long occupied reformers. The constitutional framers attended to the question of selecting the chief executive late in the summer of 1787 when they were weary of decision making yet secure in the knowledge that George Washington would serve as the first President.5 The electoral college presented itself as a solution: it was the second choice of those who preferred direct election of the President6 and those who wanted Congress to choose the President.7 It was argued that direct election might give the President too much power, while congressional selection would give Congress too much power.8 It was thought at the time that the electors would typically find themselves unable to reach a majority, thus invoking the contingency that the House of Representatives would make the final choice. Some imagined that the electoral college would operate as little more than a nominating convention leading up to the House choice.9

Efforts to abolish the electoral college began at least as early as 1801.10 Some of the earliest proposals will strike the modern reader as outright bizarre. Under the Hillhouse plan of 1808, for instance, senators would serve single, staggered, three-year terms, and each year a new President would be chosen by the senators from the ranks of the retiring senators.11 An 1822 plan provided for Presidents to be taken on a rotating basis from the various regions-South, Northeast, and so on. Similarly, in 1860, Andrew Johnson proposed alternating Presidents from the North and South.12

Over the years other plans have been suggested, including a 1956 effort cosponsored by fifty-two senators to abolish the position of elector, keep the same allocation of electoral votes to the states and to provide for the appointment of the "constant two" electors according to the statewide plurality vote and the rest of the electors in proportion to the vote received by each candidate. …

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