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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