Reforming the Electoral College

[Sanford Levinson]

I don't have any great problem going the Spending Clause route (and, by the
way, I don't endorse the "legal merits" of Prigg; I simply note that the
Court finds a way to find powers when it believes it advisable to do
so--see also the Chinese Exclusion Cases).  I wonder, though, what my
colleague Lynn Baker and other "neo-anti-Federalists" would say.  She (and
others) would overrule Dole in a second, and I wonder if the current
majority of the Court would see the connection between accepting money for
voting machines and adopting Congress's favorite scheme of allocating
electoral votes.

sandy levinson

At 09:46 PM 11/13/2000 -0500, you wrote:
>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
>