Ohio State University’s Moritz College of Law Professor Daniel P. Tokaji argues that the thirty-five day period in which states can take advantage of the “safe harbor” provision under federal law offers insufficient time for the resolution of post-election disputes over electors. Professor Tokaji proposes a new timetable that would allow states more time to complete recount and contest proceedings in the event of close, contested elections—a change he feels is justified on both fairness and federalism grounds.To be certain, the Electoral College may be in need of reform, but by the same token, many of the proposals will drastically alter the manner in which presidential campaigns are run.
Sacramento-based election law attorney and former legal counsel for California Governor Arnold Schwarzenegger and the California Republican Party Thomas W. Hiltachk explains and defends his proposed statewide initiative that would change California’s winner-take-all system of awarding its fifty-five electoral votes to a system that arguably would make California more relevant to the election process. If the California initiative took effect, the state would award the presidential candidate winning the popular vote in each of the state’s congressional districts one electoral vote while awarding the winner of the state’s overall popular vote two electoral votes.
Washington, D.C.-based election law attorney and former Democratic campaign manager Sam Hirsch critiques Hiltachk’s proposed initiative, arguing that the congressional-district system increases the chances of the presidency being awarded to the second-place finisher in popular votes, is significantly biased to favor one political party, and is founded on the erroneous assumption that congressional-district lines are politically “neutral” and thus well suited to functions other than electing members of the U.S. House of Representatives.
University of Chicago Dean of Social Sciences John Mark Hansen examines the effects of the Electoral College system and the proposed reforms to it on the prospect of equal voice in elections, concluding that if every vote is to count equally, the only solution is to elect the president by direct popular vote.
University of California’s Hastings College of the Law Professor Ethan J. Leib and Hastings College of the Law J.D. Candidate Eli J. Mark critique three state-based reform systems—reforms granting electoral votes based on winning congressional districts, reforms granting electoral votes in proportion to the state’s popular vote, and reforms granting all of a state’s electoral votes to the nationwide popular vote winner—and note the effects of partisan principles on defenses and critiques of them.
Massachusetts Institute of Technology Visiting Scholar Alexander S. Belenky discusses instituting direct popular election of the president as well as the National Popular Vote interstate compact but also evaluates a third option that makes the nationwide popular vote a decisive factor in electing a president but retains the Electoral College as a safeguard against failure to elect a president.
University of Michigan J.D. candidate Daniel Rathbun contends both legal and sociological theory can explain the National Popular Vote compact’s failure to take hold. Legally, Rathbun argues, the NPV overlooks significant constitutional and practical-institutional obstacles. Sociologically, he contends, the NPV is structurally incapable of dis-embedding the federalist theory underlying the Electoral College.
In particular, I think that a direct popular vote is likely to skew campaigning to just a few states, whereas now, some of the smaller states, particularly those that are intensely competitive can be important states for candidates to visit. But with a direct national vote, you run the risk of marginalizing even further some of the small to mediums size states in favor of large states like California, Texas, New York and Florida since that is where most of the voters are located.
I think in such a situation you could get two radically different campaigns. One would be the candidates simply facing off in the big states. The second type would be one candidate who simply tries to be competitive in the big states, but then tries to round up lots of votes in the smaller states.
The purpose behind the electoral college, as originally formulated, was to allow the political elites, those with knowledge of the candidates and their qualifications to vote on a President. The reason, of course, is that in 1790, there was no mass communication and certainly no campaigning in the manner we see today. Candidates thought that those who campaigned were beneath the dignity of the office they sought--so they didn't campaign. Today though, we have a massive information glut (much of it fairly useless) and most voters have a mechanism by which to learn about candidates. As originally formulated, the Electoral College gave voice to the smaller states in the Presidential election. I am not sure you can get to that same place with a direct election of the President.
I certainly don't know the perfect answer (assuming one exists), but I do think that symposiums like the Michigan Law Reviews are a good place to start to look for answers.