29 Fla. St. U. L. Rev. 995 (2001-2002)
Popular Sovereignty and the Electoral College

handle is hein.journals/flsulr29 and id is 1013 raw text is: POPULAR SOVEREIGNTY AND
THE ELECTORAL COLLEGE
JOHN 0. MCGINNIS*
In this brief Comment I want to consider the relation of popular
sovereignty to the Electoral College. First, I consider the often
expressed claim that George W. Bush's failure to receive a plurality
of the popular vote undermines his legitimacy as President. I com-
pletely reject this notion: because presidential candidates attempt to
win a majority of the Electoral College, not the popular vote, the
popular vote totals are epiphenomenal. Accordingly, in the close elec-
tions where the popular vote may diverge from the Electoral College
result, the loss of the popular vote does not undermine the electoral
legitimacy of a candidate who won through playing by the rules gov-
erning the election.
Next I consider whether the failure of the United States to use di-
rect election undermines or in any way vitiates the political legiti-
macy of its system of government. I reject this claim as well on two
grounds. First, given the fickleness and inattention of voters, all we
can expect an electoral system to do is to make certain that a candi-
date has substantial popular support. We cannot expect an election
to measure the popular will in any transcendental sense, if by that
we mean a stable will of a national majority. Given this fact, it
makes sense for an electoral system to have other goals, like assuring
a clear winner through minimizing the possibility of requiring a na-
tional recount. Second, even if it were possible to measure a stable
majority, an electoral system designed to distill the will of a national
majority would have a tendency to lead to notions of social democracy
that are foreign to the American experience and are harmful to pros-
perity and liberty.
Both of the fine Articles I address in this Comment touch on the
legitimacy of our presidential election system.' I will necessarily con-
centrate on the parts that relate to my thesis, where I have some
disagreement with the Articles. I thus pass over the many interest-
ing and persuasive observations that Professors Sandy Levinson and
Ernest Young have made about whether the decision of the Texas
electors to vote for both George W. Bush and Richard Cheney vio-
* Professor of Law, Benjamin N. Cardozo Law School. I want to thank Mark Movse-
sian and the participants in symposia at the Florida State University College of Law and
at Cardozo for their comments. I am also grateful to Jim Rossi for his hospitality.
1. See Luis Fuentes-Rohwer & Guy-Uriel Charles, The Electoral College, The Right
to Vote, and Our Federalism: A Comment on a Lasting Institution, 29 FLA. ST. U. L. REV.
879 (2001); Sanford Levinson & Ernest A. Young, Who's Afraid of the Twelfth Amend-
ment?, 29 FLA. ST. U. L. REV. 925 (2001).

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