Reforming the Electoral College

[Bryan Wildenthal]

One serious drawback to the Maine/Nebraska approach (two EC votes decided
at-large, remainder allocated to winner in each congressional district) is
that results would be affected by the various contorted partisan
gerrymanderings of Congressional districts in many states.  I agree with
Michael McConnell that reform of the mechanics of voting now seems an even
higher priority than Electoral College reform/abolition (though I favor
both).  Let's have a blue-ribbon bipartisan commission after Whoever takes
office to recommend a more secure and accurate system.  California, where I
live, uses punch cards and I am now shocked and appalled that apparently
that is not as accurate a system as I had always assumed.  Apparently,
optically read SAT-style "fill in the bubble with a pencil" forms are as
much as ten times more accurate.  High-tech wizards may be able to propose
secure electronic methods.  With that huge federal surplus, let's spend a
modicum of it on ensuring that the machinery of democracy actually works.
Then we can debate reform of the broader electoral system at our leisure.

Bryan Wildenthal, Thomas Jefferson School of Law

> -----Original Message-----
> From: Michael McConnell [mailto:mcconnellm at LAW.UTAH.EDU]
> Sent: Tuesday, November 14, 2000 6:25 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Reforming the Electoral College
>
>
> I think I favor the Maine-Nebraska approach, though I do not
> consider the
> difference between the systems of very great importance. But
> I think it must
> be enacted on a state-by-state basis. This would probably
> require some sort
> of coordination, because it is not in the interest of the
> individual states
> to act on their own unless the vast majority of the states join in.
>
> The Spending Power theory, in my opinion, is too cute. I
> thought (along with
> Justice Brennan) that South Dakota v. Dole was wrongly
> decided, but this
> would be a significant step even beyond Dole. Doctrinally,
> the weakness in
> the Spending Power theory is the lack of germaneness. The purpose of
> providing funds for better voting machines is to improve the
> accuracy of the
> count. That is not germane, except in the most extenuated
> way, to changing
> the voting system. If the Constitution vests in the states
> the power to
> determine how to elect electors, that is how it should be.
> Constitutionalism
> is of no value if we simply disregard the Constitution whenever it is
> convenient.
>
> In my opinion, the number one reform that should come out of
> this fiasco is
> not to reform the electoral college, which is sideshow issue,
> but to examine
> our system of voting to reduce electoral fraud and mistakes
> in the future.
> That should include a more systematic approach to ensuring that only
> eligible voters vote, and only one time, and minimizing the
> ability of local
> officials to mess with the results.
>
> Michael McConnell
> University of Utah College of Law
> 332 South 1400 East Rm. 101
> Salt Lake City, UT 84112
>
>
> > -----Original Message-----
> > From: Sanford Levinson [mailto:SLevinson at MAIL.LAW.UTEXAS.EDU]
> > Sent: Monday, November 13, 2000 8:12 PM
> > To: CONLAWPROF at listserv.ucla.edu
> > Subject: Re: Reforming the Electoral College
> >
> >
> > 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
> > >
> >
>