The Origins and Constitutionality of State Unit Voting in the Electoral College

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I. INTRODUCTION

On November 1, 2000, a Joint Resolution was introduced in Congress proposing a constitutional amendment to change the Article II system of electing the President and Vice President1 by abolishing the Electoral College.2 Acknowledging the fact that "there have been more congressionally proposed constitutional amendments on this subject than any other,"3 the sponsoring Senator noted that the issue "could become supremely important in a few days," because "we have the possibility that the winning candidate for President might not win the popular vote in our country."4 One prominent legal scholar has described the mere possibility of such an event as "a constitutional accident waiting to happen."5

Six days later, on election day 2000, the Senator proved to be a prophet (the issue was not fully resolved for over a month).6 Governor George W. Bush won the presidency with 271 electoral votes, despite Vice President Al Gore tallying more popular votes.7 The possibility of a split between the electoral vote and the popular vote moved from the province of mere academic speculation to political reality,8 and the Electoral College debate moved with it to the foreIMAGE FORMULA5

front of public consciousness.9 From the media to politicians to scholars, no one seemed without an opinion on whether the Electoral College should be totally discarded, or meticulously preserved.10

This Note does not attempt to make any judgments on the value of the Electoral College as an institution. Whether as a constitutional procedure the Electoral College ought to be preserved, altered, or eliminated is a question left for other scholars to address. Instead, this Note analyzes legal issues that would confront any attempt to change the Electoral College by lawsuit or legislation.11 It will do so by comparing the historical underpinnings of the institution to the legal status of the electoral voting systems currently practiced in the states. The analysis will focus on two separate, but ultimately related, areas of inquiry: (1) the inception of the Electoral College as a product of the Constitutional Convention, and (2) how that origin relates to possible challenges to the "winner-take-all" allocation of electoral votes, or what is commonly known as the "unit rule."12 This Note examines the Electoral College debate in light of two recent developments: the controversial 2000 election and the decision in Bush v. Gore,13 and the Supreme Court's recent jurisprudence on state sovereignty.14

The Constitution leaves the decision on how to allocate its electoral votes completely to the discretion of each state.15 There are a number of different methods from which the states could choose; an overwhelming majority of states employ the unit rule.16 IMAGE FORMULA8

This method has become unpopular with many commentators and has been the subject of much criticism.17 Included in the bill of charges against the method are that it amplifies the effect of the imbalanced allocation of electoral votes,18 and that it fails to "count" the votes within a state that were cast for a losing candidate.19 It is also controversial because it is the mechanism that enhances the possibility of having an electoral vote winner, and hence a president, who received fewer popular votes than the electoral runnerup.20

Although the Electoral College has indeed been the subject of hundreds of proposed constitutional amendments throughout history,21 many, if not most, commentators believe that the possibility of getting the required two-thirds of the states to ratify any constitutional modification of the process is highly unlikely.22 That recognition forces critics of the unit rule to operate within the existing constitutional structure, but there are still avenues by which to seek change: altering the status quo through either federal legislation or judicial action. …