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100 Geo. L.J. 173 (2011-2012)
Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional Change

handle is hein.journals/glj100 and id is 175 raw text is: Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional Change NORMAN R. WLLLIAMS* Frustrated by their inability to secure passage of a federal constitutional amendment abolishing the Electoral College, some of its opponents have sought to establish the direct, popular election of the President by having individual states agree to appoint their presidential electors in accordance with the nationwide popular vote. Ostensibly designed to prevent elections, such as the one in 2000, in which the Electoral College misfired and chose the candidate who received fewer popular votes, the National Popular Vote Compact (NPVC) has been adopted by several states. In this Article, I argue that the National Popular Vote Compact is an unnecessary and dangerous reform. It is unneces- sary because the Electoral College is only modestly malapportioned and less so than many other accepted features of the U.S. political process, which distort popular political preferences to a greater extent. Moreover, this malapportion- ment is simply the consequence of having a presidential election system that combines elements of majoritarianism and federalism, as other industrialized democracies have adopted. It is dangerous because the NPVC contains a host of defects that would make electoral misfires more likely and trigger a series of political and constitutional crises. The abolition or wholesale reform of the presidential election system requires a federal constitutional amendment; attempt- ing to achieve some reform via a subconstitutional agreement among several states risks creating a presidential election system that is neither workable nor fair TABLE OF CONTENTS INTRODUCTION ........ .......................................... 174 I. ELECTING THE PRESIDENT ............................... 180 A. THE CURRENT PROCESS ............................. 180 B. THE CRITICISM OF THE ELECTORAL COLLEGE .................. 183 * * Professor of Law and Director of the Center for Law and Government, Willamette University. © 2011, Norman R. Williams. A.B., Harvard University; J.D., New York University. The individuals who have read prior drafts and contributed comments are too numerous to identify by name; they know who they are, and I owe profound thanks to all of them. These days, any article that involves the presidential election process tends to be scrutinized through a partisan lens. The arguments that follow are framed in nonpartisan terms and should therefore have bipartisan appeal, but in the interest of full disclosure, I note that I am a registered Democrat.

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