12 J.L. & Pol. 665 (1996)
The Electoral College and the Popular Vote

handle is hein.journals/jlp12 and id is 675 raw text is: The Electoral College and the Popular Vote

Beverly J. Ross*
and
William Josephson*
Introdu   ction  .............................................................................................. 667
I. The Constitution and Elector Discretion .............................................. 673
A. Elector Discretion .................................................................. 675
1. Original Understanding ............................................ 675
2. Twelfth Amendment ................................................. 677
3. Elector Votes for President and Vice President ........ 678
4. Twenty-Third Amendment ....................................... 680
5. State Decisions .......................................................... 682
6. Continuing Support for Elector Discretion ............... 684
B. Fourteenth Amendment Right to an Effective Vote ........... 686
II. State Action to Bind Electors .............................................................. 690
A. Electors as State or Federal Officers ...................................... 691
B. Limiting Elector Discretion by Delegation to Political
P arties  .................................................................................... 694
© Copyright 1996 by Beverly J. Ross and William Josephson. All rights reserved. The authors
are, respectively, Associate Professor at St. Thomas University School of Law, Miami, Florida, and a
retired partner with Fried, Frank, Harris, Shriver & Jacobson in New York. They gratefully
acknowledge the thoughtful contributions of Elizabeth Bartholet, Nelson W. Polsby and Albert J.
Rosenthal; and also thank Elia Fischer, Jessica Fonseca-Nader, Warren Gordon, Larry Gould, Brian
Hill, Guy Reiss, Mitchell Sussman and Jennifer Winokur for valuable research assistance, and William
Ney and William Bernthal for invaluable editorial assistance.
This article is part of a larger study by the authors of the presidential election process. The first
part of the study, Repairing the Electoral College, appears at 22 J. oF LEGIS. 145 (1996). Since it was
published, there has been called to our attention a novel involving many of the issues that article
discusses. See JEFF GREENFIELD, THE PEOPLE' S CHOICE: A CAU'nONARYTALE(1995).
With others at Fried, Frank, the authors represented pro bono publico the 1980 Carter-Mondale and
1988 Dukakis-Bentsen campaigns with respect to electoral college issues. The views expressed in this
article are the authors' alone.

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