Reforming the Electoral College

[Edward Hartnett]

Without getting into a debate about the legal merits of Prigg, there is another
way for Congress to achieve broad adoption of the Maine/Nebraska system: the
spending clause.

One of the strking pieces of information to come out of the Florida fiasco is
that some areas (typically better-off areas) have spent money on newer, more
accurate voting technology, while other areas (typically poorer) have not.
Congress could offer funding (some have suggested some form of matching
funding) for states and localities to modernize their voting technology, but
make the technology dependent on adoption of the Maine / Nebraska system.

I don't think that there is any problem with this under Dole.  Nor do I think
there should be a problem even under a more aggressive judicial approach to the
spending clause.  If Congress wants to help the states ascertain the will of
the people in presidential elections more precisely, conditioning that
assistance on other efforts to more precisely reflect the will of the people
seems appropriate.  It also seems appropriate for Congress to take such a
measure when we consider that the reason many states switched to the less
precise winner-take-all electoral systems in the first place was race to the
bottom pressure from other states.

Ed Hartnett