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2015 Wis. L. Rev. Online 1 (2015)

handle is hein.journals/wlron3 and id is 1 raw text is: A CASE FOR THE ELECTORAL COLLEGE AND FOR ITS FAITHLESS ELECTOR STEPHEN M. SHEPPARD* I. The Electoral College.................................. 2 II. A Few Arguments Con and Pro ................. ......... 4 III. A Fly in the Ointment ................................ 6 IV. The Moral Elector and the December Surprise ...... ......... 7 V. Some Conclusions ............................................ 11 Every four years, the cry goes up to destroy the Electoral College. That cry is especially loud in years when a candidate is elected president who receives a minority of the votes. The election of a minority president happened with the election of 2000, but it had happened before.' The Electoral College has elected three presidents whom a majority of the voters voted against: Rutherford B. Hayes in 1876,2 Benjamin Harrison in 1888,3 and George W. Bush in 2000.' (A fourth president was also elected with a minority of the popular vote-John Quincy Adams in 1824-though that election was by the House of Representatives, the Electoral College not having produced a majority of electors. ) Against these recurrent cries are occasional voices of dissent, arguing for one reason or another that majority rule is not the highest value of a republic. So does this Essay, arguing to keep the Electoral * Dean and Charles E. Cantu Distinguished Professor of Law, St. Mary's University School of Law. The arguments below were significantly enhanced by the able research assistance of Mary Christian Barr. I am grateful to Howard Schweber and the Wisconsin Law Review for their invitation to attend this symposium. 1. See infra note 4 and accompanying text. 2. On the election of Hayes over Samuel Tilden, see WILLIAM H. REHNQUIST, CENTENNIAL CRISIS: THE DISPUTED ELECTION OF 1876 (2004). 3. On the election of Harrison over Grover Cleveland, see CHARLES W. CALHOUN, MINORITY VICTORY: GILDED AGE POLITICS AND THE FRONT PORCH CAMPAIGN OF 1888 (2008). 4. Among the comment on the election, or selection, of President Bush over Al Gore and judicial intervention in the Florida election, see A BADLY FLAWED ELECTION: DEBATING BUSH V. GORE, THE SUPREME COURT, AND AMERICAN DEMOCRACY (Ronald Dworkin ed., 2002). 5. For 1824 race, see LYNN HUDSON PARSONS, THE BIRTH OF MODERN POLITICS: ANDREW JACKSON, JOHN QUiNCY ADAMS, AND THE ELECTION OF 1828, at 69-108 (2009).

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