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PUBLIC FORUM DEBATE RESEARCH SERIES

VOL. 3 NOVEMBER 2011 NO. 3

RESOLVED: DIRECT POPULAR VOTE SHOULD REPLACE ELECTORAL VOTE IN

PRESIDENTIAL ELECTIONS.
The motivation for choosing this topic no doubt springs from the movement among state legislatures to adopt the
National Popular Vote (NPV) plan. The nonprofit group promoting this plan has a Web site (available at
http://www.nationalpopularvote.com/) urging more state legislatures to join the movement. The rationale behind the
NPV movement is that securing a Constitutional amendment to change the Electoral College system is unlikely – the
Electoral College is enshrined in Article II of the U.S. Constitution. Amending the U.S. Constitution is a difficult task. So
a simpler mechanism should be found to switch the Electoral College system to one based on the national popular
vote. The NPV plan offers such a way.
The Constitution specifies that the U.S. President is to be elected by a vote among the electors appointed by the
various state legislatures – a total of 528 electoral votes with 270 being necessary for the election of the President.
Each state is allocated the number of electors equal to its U.S. Representatives plus its two Senators. But each state
legislature is allowed to decide how it will appoint and instruct its electors for President. All but two states (Nebraska
and Maine) have used a winner-take-all system for allocating their electoral votes – whichever candidate receives a
plurality of votes cast in that state will win all of the state’s electoral votes. Nebraska and Maine utilize a proportional
system, assigning the percentage of electors to match the percentage of the state vote won by each candidate.
What if each state legislature agreed to commit its electors to the winner of the national popular vote? Nine states,
including California and Illinois, have now adopted legislation promising to instruct their electors to vote for the winner
of the national popular vote. The only condition is that a majority of the states – meaning states adding up to at least
270 electoral votes – must agree to do the same before the plan will be activated. The nine states that have signed up
for the NPV plan account for 132 electoral votes – almost half way to the required 270 electoral vote total. Supporting
legislation has been introduced in many other states.
So a plan is emerging that would enable the national popular vote to determine the election of the U.S. President.
Some debaters may be tempted to involve themselves in the details of the NPV plan, asking whether the Supreme
Court would likely uphold such an obvious attempt to circumvent Article II of the U.S. Constitution. But the November
2011 Public Forum topic is not worded as a resolution of policy – it has no agent of action. This means that the PRO
team is not expected to propose or defend any particular means by which the direct popular vote would replace the
electoral vote. Instead, the debate will focus on the more general question of whether reliance on the direct popular
vote is a superior means of electing a President as compared to the electoral vote.
Arguments on this topic will often reference the presidential election campaign in 2000 involving George W. Bush
and Al Gore. That campaign saw a popular vote loser win the presidency for only the fourth time in American history.
With 50,996,039 Americans voting for Al Gore and 50,456,141 voting for George W. Bush, Gore held an advantage of
over 500,000 votes, but Bush won the presidency in the Electoral College by a narrow 271 to 266 electoral votes.
Gore’s popular vote margin, however, was due largely to substantial victories in New York and California, the nation’s
two most populous states. Not surprisingly, Bush won in Texas, carried the South, and secured an important Midwest
victory in Ohio. The presence of two additional candidates — Raph Nader and Pat Buchanan — was a factor that may
have cost Al Gore the election. The election finally boiled down to one state for the two front-runners, Bush and Gore:
whoever won Florida’s general election would win its twenty-five electoral votes and the presidency. Democrats
claimed that a confusing ballot design in Palm Beach County caused more than 3,000 voters to cast their ballots for
Pat Buchanan by accident instead of Al Gore. Ralph Nader also lured away Democratic voters who would have most
likely voted for Gore, giving him enough votes to win Florida’s electoral votes and the presidency. Because of these
“lost votes,” Gore lost the Florida general election and the presidency by a mere 388 votes. Perhaps of even greater
concern is the fact that the race between Bush and Gore was so close; if either Ralph Nader or Pat Buchanan had
received just two electoral votes, no candidate would have received the required majority of electoral votes, and the
election would have defaulted to the House of Representatives where each state would cast a single vote to select the
President.
In 2000, neither candidate won a majority of the popular vote. Al Gore won a plurality of the popular vote with forty-
nine percent of the total vote. This was substantially more than Bill Clinton won in 1992 when he defeated George
H.W. Bush and became President with only forty-three percent of the popular vote. In that election, third party
candidate Ross Perot received over 20 percent of the popular vote, most of which would likely have gone to George
H.W. Bush.
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Before the election of 2000, only three Presidents took office without winning the popular vote: John Quincy Adams
in 1824, Rutherford B. Hayes in 1976, and Benjamin Harrison in 1888. In 1824, Adams, Andrew Jackson, Speaker of
the House Henry Clay, and Secretary of the Treasury William H. Crawford sought the Presidency. This was the first
time in American history when a majority of the twenty-four states conducted direct popular elections. Prior to this time,
most states chose electors to the Electoral College by vote of the state legislature. Jackson was the clear popular vote
winner with 152,933 votes compared to 115,696 for Adams. Despite Jackson’s popular vote advantage, he failed to
obtain a majority of the electoral votes cast. In the election that followed in the House of Representatives, Clay threw
his support to Adams, who won on the first ballot.
Republican Rutherford B. Hayes, the Governor of Ohio won the 1886 presidential election after intense and most
likely fraudulent dealing. New York Governor Samuel J. Tilden, the Democratic nominee, won the popular vote by
more than 250,000. The Republicans quickly realized that if Hayes could overturn Tilden’s apparent victories in South
Carolina, Florida, and Louisiana, he could defeat Tilden by a single electoral vote. Using a variety of corrupt tactics,
Republicans went to work on changing the outcome in these three states. These states submitted two sets of returns;
Congress set up a special commission to settle the dispute. The commission’s Republican majority sided with Hayes in
each dispute, and Congress ultimately certified the election.
The election of 1888 was the last time until 2000 that a popular vote loser gained the Presidency. Republicans
nominated Benjamin Harrison of Indiana to challenge the Democrat incumbent, President Grover Cleveland. Cleveland
won the popular vote by 110,476 out of 11,381,032 votes cast. But Harrison defeated Cleveland in New York by a
mere 13,373 votes and gained the states’ all-important thirty-six electoral votes, which were enough to deny Cleveland
a second term.
Many historians claim that only the 2000 election can be seen as a clear example of a President being elected
without receiving more votes than his opponent. In the election of 1824, six of the twenty-four states still chose their
electors in the state legislature — there was thus no popular vote in these states. Some of these states, such as
sizeable New York, would likely have given very large majorities to Adams had they conducted a popular election. In
1876, Samuel J. Tilden won both the popular vote and the electoral vote. But the Confederate states were still under
military occupation, and the electoral boards in Florida, Louisiana, and South Carolina disqualified enough Democratic
ballots to give Hayes, the Republican candidate, the electoral majority. The ability to engage in such behavior was
outlawed in 1887 when Congress enacted legislation that delegated to each state the final authority to determine the
legality of its electors. That legislation remains in effect today so that the events of 1876 will not repeat themselves.
The election of 1888 was a clouded election. Although the Electoral College did deprive the popular vote winner,
Grover Cleveland, of victory, neither candidate received a majority and Cleveland’s margin was only 110,000 votes.
Moreover, the claim was made, and was widely accepted at the time and by scholars since, that white election officials
in the South banned perhaps 300,000 black Republicans from the polls. Defenders of George Bush dismiss the
significance of the difference in 2000, pointing out that Gore’s popular vote surpluses were mainly among the West
Coast and North East Coast states. They claim it is clear that Gore won a plurality of the popular vote only because
these two regions are the most populated. Bush won more states in the largest regions of the country. He won two-
thirds of the smaller states, almost half of the larger states and a total of thirty of fifty of the states while accumulating
less than 0.5% fewer votes than Gore.

WHAT IS THE ELECTORAL COLLEGE AND HOW DOES IT FUNCTION?

During the Constitutional Convention of 1878, one of the most debated topics was determining the procedure for
electing the President and Vice President. The division occurred generally along the lines of state population and
states’ viewpoints on the issue of slavery. The more populous free states preferred a system that provided for direct
election of the President and Vice President by the people. Less populous slave states, however, feared that they
would not have a meaningful voice in a popular election and therefore proposed a system by which members of
Congress elected the President and Vice President. The Founding Fathers compromised and decided on a two-part
electoral system. The two-part process consists of the more well-known Electoral College system and the somewhat
obscure “default” system.
When people vote in a presidential election, they are not actually voting for the candidate they select on their
ballot. Rather, they are voting for a slate of electors who have pledged to vote for that particular candidate. In other
words, voters actually elect a group of people — usually chosen by the state political party of the candidate for whom
they vote — who in turn elect the President. Article II, Section I of the United States Constitution allots each state a
number of electors that is equal to the number of Senators plus Representatives that it has in Congress. Each state
has the power to decide how to appoint the electors.
Roberta Yard, writing in the 2001 Santa Clara Law Review, points out that forty-eight of the fifty states appoint
electors on a “winner-take-all” basis. This means that the winner of the state popular vote gets all of that state’s
electoral votes; the slimmest of pluralities is sufficient. The 1992 election in Texas provides a good example of how the
“winner-take-all” system works. Ross Perot won twenty-two percent of the popular vote in the state of Texas; Bill
Clinton received thirty-seven percent of the popular vote. George H.W. Bush, however, won all of Texas’ electoral
votes with forty-one percent of the popular vote. Likewise, in Colorado, Bill Clinton won all of Colorado’s electoral votes
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even though he received only forty-one percent of the statewide vote. George H.W. Bush received thirty-six percent
and Reform Party candidate Ross Perot received twenty-three percent.
After each state holds its popular election and appoints a corresponding slate of electors, the electors meet in their
respective states to cast their ballots for the President and Vice President.
The United States Constitution does not require electors to follow the state’s popular vote. Electors, in theory, have
discretion to vote for the candidate of their choice. States, however, do have the power to require their electors, either
by legislation or a pledge to follow the state’s popular vote. Only twenty-four states and the District of Columbia have
chosen to require their electors to follow the popular vote.
In theory, the electors for the remaining twenty-six states are free to cast their votes for whomever they choose. In
reality, the political parties who select the electors for their candidates expect electors to cast their votes in accordance
with the popular vote of the state. Electors are call “faithless electors” when they cast their ballots in ways other than
that directed by the popular vote of the state. In past presidential elections, votes cast by faithless electors have never
had an impact on which candidate won the election. In an election as close as the 2000 election, faithless electors
could have changed the outcome of the election.
After the popular vote has been decided in the election of each state, the electors meet in the capital of each state
to cast their electoral votes, one each for President and one each for Vice President. The electoral votes are sealed
and sent from each state to the President of the United States Senate who opens and reads them before both houses
of Congress. The presidential and vice presidential winners are the candidates with a majority of the electoral votes.
Currently, 270 electoral votes are needed for a majority.
The Constitution provides that if no candidate receives a majority of the electoral votes, the election will “default” to
the House of Representatives, who shall select the President. Representatives from each state collectively have one
vote (only one vote per state). The candidate who receives a majority of the states’ votes becomes President. If
necessary, the Senate chooses the Vice President in a like manner. In any candidate fails to obtain a majority in the
House of Representatives by the fourth day of the March of the following year, the Vice President, as selected by the
Senate shall act as President.
In a hypothetical election, the House must choose the President. Each state is given only one vote. The states with
a majority of Republican Representatives will likely choose the Republican candidate, and the states with a majority of
Democratic Representatives vote for the Democratic candidate. In other words, the Representatives will likely vote
along party lines, and not necessarily in accordance with the popular vote of their home state.

MOVES TO REFORM THE ELECTORAL COLLEGE

Mathew Vita, writing in the November 17, 2000 issue of the Washington Post, points out that the idea of abolishing
or changing the Electoral College has been around virtually since it was created. The Congressional Research Service
counted 1,028 proposals for changing the system, dating back to the first Congress. A direct election amendment to
the Constitution has been introduced in the Senate over sixty times. In the three months following the 2000 election,
members of Congress introduced five measures to abolish the Electoral College in favor of direct popular election. One
plan introduced by Senator Richard Durbin along with Representative Ray LaHood, provides for election of the
President by popular vote with the proviso that a single candidate must receive at least forty percent of the popular
vote cast. If no candidate obtains forty percent in the general election, the two candidates receiving the highest number
of popular votes participate in a runoff election. Of course, the most recent effort to reform the Electoral College system
is the National Popular Vote (NPV) movement described in the opening paragraphs of this essay.

PRO STRATEGIES
There are a number of excellent strategies available to PRO debaters on this topic. The first strategy is to define
the Electoral College as a voting system that is fundamentally undemocratic because it violates the foremost
democratic principle that the votes of all citizens must be counted as equal. This is a fundamental principle of American
democracy found in the Declaration of Independence and in the Thirteenth, Fourteenth, and Fifteenth Amendments to
the United States Constitution. No citizen should have his/her vote count more than the vote of any other citizen.
Senator Richard Durbin of Illinois explained it well when he said, “Imagine for a moment if you were told as follows: We
want you to vote for President; we are going to give you one vote in selection of the President, but a neighbor of yours
is going to have three votes in selecting the President. You would say that is not American; that it is fundamentally
unfair. We live in a nation that is one-person-one citizen, one vote. But that is exactly what the Electoral College does.”
The Electoral College violates the principle of equality in voting in at least three ways. First, the distribution of votes
in the Electoral College tends to over-represent people in rural areas. This is because the number of electors for each
state is determined by the number of members it has in the House plus the number of members it has in the House
plus number of members it has in the Senate (which is always two regardless of the state’s population). The result is
that in 1988, for example, the combined voting age population (3,119,000) of the seven least populous jurisdictions of
Alaska, Delaware, the District of Columbia, North Dakota, South Dakota, Vermont, and Wyoming carried the same
voting strength in the Electoral College (21 electoral votes) as the 9,614,000 people of voting age in the state of
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Florida. In providing these statistics, the League of Women Voters concludes that each citizen of Florida’s potential
vote counted about one-third the weight of a potential vote in the other states listed. Secondly, not only does the
Electoral College give the vote of different citizens different weight, the winner-take-all principle employed by 48 states,
completely takes away the votes many citizens cast for the President. Michael McGrath, founder of
ElectionReform.org, points out that in the 2000 election, 4,567,429 (42 percent) Californians voted for George W. Bush
and 5,861,203 (52 percent) voted for Al Gore. Yet all of California’s 54 electoral votes were awarded to Al Gore,
effectively eliminating the votes of more than 4.5 million California voters. Overall, with the current winner-take-all
principle, in the 2000 election the votes of 40 million Americans were not counted! Allowing the popular vote to replace
the Electoral College vote quite obviously overcomes the problem of inequality in voting perpetrated by the Electoral
College.
The third way that the Electoral College violates equality in voting is that it results in discrimination against racial
minorities. Today race remains a polarizing force in presidential politics. Rather than relying on overt racist imagery, as
Strom Thurmond did in 1948 and George Wallace did in 1968, modern politicians generally play the “race card”
through the subtle use of code words and careful manipulation of racial imagery. For example, George H.W. Bush’s
victory over Michael Dukakis in 1988 is frequently attributed to his campaign’s skillful handling of racial imagery —
most notably the infamous “Willie Horton” episode. Indeed, as Mathew Hoffman emphasizes, many of the rhetorical
devices and subtle images employed by modern-day Republicans are essentially variations on themes developed by
George Wallace in his 1968 campaign. Issues of race are frequently tied to a number of “social issues” ranging from
crime to welfare to affirmative action.
The winner-take-all principle has diluted the impact of African-American citizens, making sure that racial minorities
have no voice in determining the composition of the Electoral College. Republican strategists today often refer to their
party as having a an advantage in the Electoral College system by virtue of its dominance in the South. Mathew
Hoffman effectively summarizes the effect of the Electoral College: “The winner-take-all method now used to select
electors in forty-eight states and the District of Columbia severely dilutes African-American voting power. In the
Southern states where racially polarized voting patterns are particularly intense, this system denies minority voters an
opportunity to choose even a single presidential elector. In effect, these voters have no voice in the selection of the
President. Nor is the problem necessarily limited to the South — or to African-American voters. The winner-take-all
system denies minority voters in ways that undermine the will of the people. This is at variance with the fundamental
maxim of republican government observed by Alexander Hamilton in the Federalist Papers 22 that the sense of the
majority should prevail. The moral criterion of a democracy is that it should elect the people’s choice. In our
democracy, if you run for dogcatcher, it is decided by the popular vote. The only exception to this rule is the election of
the highest elected official in the country.
The 2000 presidential election exemplifies the deficiencies in the Electoral College. For the fourth time in the
nation’s history, the winner of the popular vote did not win a majority of electoral votes. Even when the Electoral
College chooses the candidate with the most votes, the results are less than a clear expression of the popular will. For
example, in the 1992 election Bill Clinton received only 43 percent of the popular vote.
Perhaps most significantly there is the very real possibility that the Electoral College could fail to provide a winner
at all, throwing the election of the President into the House of Representatives where each state delegation has only
one vote. This has happened only once and the result was very undemocratic as political “wheeling and dealing” took
the place of genuine concern for the popular will. The very fact that such a possibility exists in the world’s greatest
democracy is nothing less than a scandal.
The fact is that the threat of a presidential election being decided in the House of Representatives is very real. In
fact, several recent elections have been very close calls in which the election could have quite easily been forced into
the House of Representatives. In both the elections of 1960 and 1968 very minor vote shifts could have sent both the
elections to the House of Representatives. Both elections involved the third party candidacies of two strong regional
candidates, Senator Byrd of Virginia in 1960 and Governor George Wallace of Alabama in 1968. Ky Fullerton, writing
in the Summer 2001 Oregon Law Review, points out that shifts of 4,480 votes in Illinois and 4,491 in Missouri would
have deprived John Kennedy of an electoral vote majority and thrown the election into the House of Representatives.
The election of 1960 showed that a third party candidate with little national support, can deprive a candidate of an
Electoral College majority.
In 1968 Richard Nixon was the Republican nominee for President. His Democratic opponent was Vice President
Hubert Humphrey, who became the Democratic frontrunner after the assassination of Senator Robert F. Kennedy. For
the first time since 1948, a formidable third-party candidate challenged the nominees of the two major parties. George
C. Wallace ran as the nominee of his own creation, the American Independent Party. Wallace knew he could not win,
but his stated goal was to obtain enough electoral votes to prevent either of the other candidates from obtaining an
Electoral College majority. His plan was, then, to offer to “release” his electors to support one of the other candidates
— likely Nixon — in exchange for concessions that would undermine many of the civil rights advances of the early
1960s. Wallace came very close to achieving his goal. He received 46 electoral votes. More importantly, Ky Fullerton
points out that a total shift of 53,024 votes from Nixon to Humphrey in Missouri, New Hampshire, and New Jersey,
would have reduced Nixon’s electoral vote total to 269, one less than the 270 required for election.
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Another way in which the Electoral College undermines the popular will is that it causes campaigns to focus on so-
called “battleground states,” ignoring much of the country. Why does this matter? Because campaigns do educate
voters. Many studies have shown that even though we may not like them, television advertisements do discuss issues
and voters do learn about the candidate’s issue positions from these ads. William Benoit, professor of communication
at the University of Missouri, writing in Newsday of April 20, 2004, points out that research using data from the National
Election Studies Project found that voters who lived in the battleground states — where candidates actively
campaigned — had more knowledge of Bush’s and Gore’s positions on issues than voters who lived in non-
battleground states where they did not campaign. So voters who happen to live in non-battleground states have less
issue knowledge because the Electoral College discourages candidates from campaigning in those states. Robert A.
Dahl, the Sterling Professor of Political Science at Yale University is probably America’s foremost scholar of
democracy and democratic institutions. In his 1998 book, On Democracy, he identifies five standards which must be
met if a society is to achieve truly democratic government. Among these standards, Dahl includes something he calls
enlightened understanding. He says, “within reasonable limits as to time, each member [of a democratic society] must
have equal and effective opportunities for learning about relevant alternative policies and their likely consequences.”
Obviously, the Electoral College fails to meet this requirement of a democratic society.
As another consequence of campaigns that ignore large portions of the country, vote turnout suffers. People in
“safe” states see little reason to vote because they know their vote will not have any effect. Their vote will not matter.
Only an election decided by the total popular vote of the entire nation will encourage people to vote.
The third PRO strategy is to define the Electoral College as an institution that is based on unwarranted and
outmoded assumptions. A major strength of a democratic society is the ability both to change institutions that no longer
serve the purpose for which they were established and to eliminate mistakes of the past. The United States democracy
has been an evolving institution characterized by a willingness to change institutions to correct both unwarranted and
outmoded institutions. Just as the Founding Fathers did not want people to choose the President, they didn’t want the
th
people to choose Senators, instead giving the power to state legislatures. That lasted until 1913, when the 17
Amendment took effect. The assumptions underlying the requirement that state legislatures choose Senators were
similar to those which established the Electoral College. Both were created out of a mistrust of the voters. To some
extent these assumptions had some validity. One was that the people would lack the requisite information to make an
informed decision. Just as state legislators would be more likely to be familiar with candidates for the Senate, so too
would a small number of electors prominent in government be much more likely to be familiar with various presidential
candidates than the average citizen. In 1913 our nation was willing to recognize that the citizens of each state are fully
competent to choose their United States Senator by popular vote. Likewise American citizens are fully competent to
choose a President without requiring the intervention of an elector. National communication networks and the print
media provide extensive coverage of presidential campaigns from start to finish. Nor do those who currently serve as
electors know more than the average citizen.
A major reason why the Founding Fathers rejected the popular vote for choosing the President was that the
Southern States felt they would be at a disadvantage because a large segment of their population — slaves — could
not vote. While slaves could be counted as three-fifths for the purpose of representation in the House of
Representatives, they, of course, could not vote. The Southern states feared direct election would diminish their
influence in choosing the President. Thus, James Madison — perhaps the most influential delegate to the
Constitutional Convention — argued that while “the people at large” were “the fittest to choose the President, that “one
difficulty of a serious nature” made the election by the people impossible. Madison noted that the “right of suffrage was
much more diffusive in the Northern than the Southern states and that the South could have no influence in the
election because of the large percentage of its population who were Negro slaves who could not vote.
Paul Finkelman, professor of law at the University of Tulsa, writing in the Cardozo Law Review of March 2002,
makes clear that in order to guarantee that the non-voting slaves could nevertheless influence the presidential election,
Madison favored the creation of the Electoral College. Hugh Williamson of North Carolina was more open about the
reasons for southern opposition to popular election of the President. He said that under a direct election of President,
Virginia would not be able to elect her leaders President because “her slaves will have no suffrage.” The same, of
course, would be true of the rest of the South.
The assumptions about the necessity to protect slave states are no longer relevant. It is interesting to note,
however, that the Electoral College still rewards states that limit access to voting. In 2000 there were many claims that
African-Americans were discouraged and intimidated from voting.
Just as most of the assumptions made in establishing the Electoral College are no longer valid, many of those
assumptions were never valid nor warranted. One reason often given for establishing the Electoral College is that it
benefits small states. Yet studies of past elections have shown that the effect of the Electoral College is unpredictable
and unclear. Sometimes it benefits small states and sometimes benefits large states, depending on seemingly minor
shifts in distribution of votes across states. The Harvard Law Review of June 2001 makes the point well: “A central
problem with the Electoral College’s failure to conform to the one-person-one-vote principle is that it operates in a
nontransparent way. The inconclusive empirical data regarding whom the Electoral College benefits and the diverse
and often conflicting rationales offered for its existence are so complex that it is unlikely that the public will ever be able
to reach a secure understanding of the justifications behind it.”
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CON STRATEGIES
There are also a large number of excellent strategies available to CON teams on this topic. The first CON strategy
is to define the Electoral College as a voting system which best guarantees to produce Presidents who have both
adequate popular support to allow them to govern and a popular vote that is sufficiently distributed across the nation to
enable them to govern. Calls for replacing the Electoral College with the popular vote are very much flawed in their
understanding of American democracy. Ours is a federal system in which the vote of the several sovereign states has
always been more important than a purely majoritarian type of democracy. Neither the United States Senate, nor the
Supreme Court, nor the President is elected on the basis of one-person-one-vote. That is why a state like Montana,
with under a million residents gets the same number of Senators as California, with over 33 million people. The
Electoral College, like the Senate recognizes the central importance of strong regional interests and loyalties. These
factors have played a great role in the history of the country and continue to do so today. The Electoral College system
contributes to the cohesiveness of our highly diverse country by requiring a wide distribution of popular support to be
elected President. Without such a mechanism, presidents would be elected either through the domination of one
populous region over the others or through the domination of large metropolitan regions over the rural ones. As things
stand now, no one region contains an absolute majority of electoral votes to elect a president. Thus, the Electoral
College provides a strong incentive for candidates to pull together coalitions of states and regions rather than
exacerbate regional differences. The Electoral College forces presidential candidates to campaign on a national basis
and to make their appeal to a broad cross-section of the American electorate in every state. Candidates seeking to win
only the popular vote surely would focus on the great urban centers at the expense of smaller states and sparsely
populated areas. John McGinnis, professor of law at Cardozo Law School, writing in the 2001 Florida State University
Law Review, makes the point clearly, “because an Electoral College system forces candidates to speak more widely in
the country than would a direct election, the concern of a more diffuse population will be addressed. For instance, the
concerns of rural voters, who dominate some states but are more expensive to reach than urban voters, are more
likely to be discussed. Addressing the hopes and fears of the entire electorate is the therapeutic side of an election.
Citizens whose concerns are addressed (even if not satisfied) are less likely to cause social unrest. The ironic
catharsis engendered by an electoral system that focuses on disparate issues thus promotes the stability.
This unifying mechanism comes with only a small price. That price is that in very close elections there is a slight
chance that the candidate who wins a slight majority of popular votes may not be the one who is elected president —
depending (as was the case in 1888) on whether the candidate’s popularity is concentrated in a few states or whether
it is more evenly distributed across the states. Yet this problem is not significant because the difference in the popular
vote between the two candidates is likely to be so small that either candidate could govern effectively. Thus, if a
candidate receives a substantial majority of the popular vote, then that candidate is virtually certain to win enough
electoral votes to be elected president; in the event that the popular vote is extremely close, then the election defaults
to that candidate with the best distribution of the popular votes. One way or the other, the winning candidate must
demonstrate a sufficient popular support to govern as well as a sufficient distribution of that support to govern.
The only two elections in United States history where the winners did not receive the most popular votes are quite
instructive. It is important to recognize that in both the election of Benjamin Harrison in 1888 and George W. Bush in
2000, their opponents did not receive a majority of the votes cast. However, both Harrison and Bush are legitimate
presidents based upon the important premise of “federal plurality” George W. Bush captured the votes of thirty states.
Bush won the largest distribution of votes throughout the largest regions of the country, thus satisfying a federal
plurality as opposed to a national plurality. Bush received substantial popular support; his 47.8 percent total was only
slightly less than Gore’s 48.4 percent. Bush clearly won the federal plurality. Joy McAffee, writing in the Cumberland
Law Review of 2001/2002, divided the states into small and large states based on the average number of electoral
votes. There were thirty-one smaller states and nineteen larger states. Bush won 67.7 percent of the thirty-one smaller
states and nineteen larger states. Bush won 67.7 percent of the thirty-one smaller state electoral votes to Gore’s 32.2
percent. Furthermore, Bush received a close 47.4 percent of the nineteen larger states to 52.6 percent of Gore.
Capturing over two-thirds of the smaller states and almost half of the larger states, the electoral votes of Bush were
distributed more evenly throughout the states, the electoral votes of Bush were distributed more evenly throughout the
states than that of Gore, thus capturing the federal plurality.
In both the election of 1888 and 2000, there was no loss of legitimacy by either Harrison or Bush. Bill Lambrecht,
writing in the St. Louis Post Dispatch of November 9, 2000, points to research concerning public reaction to the 1888
election. The findings show that there was no vigorous objection about the outcome. The same was true of the 2000
election. The American people recognize the Electoral College as the legitimate system for choosing a president, and
they support the results of those elections.
The second CON strategy is to define the conflict between deciding the United States presidential election by the
Electoral College or the popular vote as a conflict between a tested and proven method and an unknown method which
involves substantial risks. This strategy rests on the reality that there should be a strong presumption in favor of the
Electoral College. The Electoral College has achieved peaceful and orderly transfers of power for more than 200 years
and is a known quantity. Moving to a popular vote or to any other system might introduce harmful, unintended
consequences. The results of the Electoral College are likely to be accepted without question. One of the most striking
facts of the 2000 election was that the United States citizenry, in general, readily accepted that the winner of the
 7

Electoral College would become president rather than the winner of the popular vote. That is undoubtedly because of
the longevity and the Electoral College and its success in providing the country with excellent results.
Arthur Schlesinger, Jr., historian and former special assistant to President John F. Kennedy, writing in the
American Prospect of March 25, 2002, points out that allowing the national popular vote to replace the state-by-state,
winner-take-all electoral votes would hasten the disintegration of the party system. Minor parties have a dim future in
the Electoral College. Unless third parties have a solid regional base like the Populists of 1892 or the Dixiecrats of
1948, they cannot hope to win electoral votes. Millard Fillmore, the Know-Nothing candidate in 1856, won 21.6 percent
of the popular vote and only two percent of the electoral vote. In 1912, when Theodore Roosevelt’s candidacy turned
the Republicans into a third party, William Howard Taft carried 23 percent of the popular vote and only 1.5 percent of
the electoral votes.
The two party system has been a source of great stability; Franklin Delano Roosevelt called it “one of the greatest
methods of unification and of teaching people to think in common terms.” The alternative offers great incentives for
radical zealots like Ralph Nader, freelance media adventurers like Pat Buchanan, eccentric billionaires like Ross Perot,
and flamboyant characters like Jesse Ventura to jump into presidential contests. These same incentives will encourage
splinter parties like green parties, senior citizen parties, nativist parties, pro-choice parties, homosexual parties, and so
on down the single issue line. These splinter parties would multiply not because they expected to win elections, but
because their accumulated vote would increase their bargaining power in a runoff. Runoffs might well become the rule
rather than the exception. Edward C. Banfield, professor of government at Harvard University, emphasizes the
importance of the two party system in his 1980 book, Political Parties in the Eighties:
If they were to evaluate the party system on the basis of results, they would have to conclude that on the whole it is
a good one. It has played an important part (no one can say how important, of course, the innumerable causal forces
have been at work along with it) in the production of a society which, despite all its faults, is as near to being a good
one as any and nearer by far than most; it has provided government which, by the standards appropriate to
governments, have been humane and, in some cases, bold and enterprising; it has done relatively little to impede
economic growth and in some ways has facilitated it; except for the Civil War, when it was, as Henry Jones Ford said,
“the last bond of union to give way,” it has tended to check violence, moderate conflict, and narrow the cleavages
within the society; it has never produced, or very seriously threatened to produce, either mob rule or tyranny, and it has
shown a marvelous ability to adapt to changing circumstances.
The third CON strategy is to answer clearly misguided or wrong criticisms of the Electoral College. The first such
charge is that the Electoral College discriminates against racial minorities. The Electoral College enhances the status
of minority groups. This is so because the votes of even small minorities in a state may make the difference between
winning all of that state’s electoral votes or none of that state’s electoral votes. Since ethnic minority groups in the
United States happen to concentrate in those states with the most electoral votes, they have an importance to
presidential candidates well out of proportion to their number. The same applies to special interest groups such as
labor unions, farmers, and environmentalists. Electing the president by popular vote would therefore actually damage
minority interests since their votes would be overwhelmed by a national popular majority.
Likewise, the claim that the Electoral College depresses voter turnout is completely and absolutely flawed.
Presidential elections do not occur in a vacuum. States and localities also conduct other elections at the same time.
Elections for U.S. Senators, U.S. Representatives, state governors, state legislators, and a large number of elected
officials are as much an influence on voter turnout in presidential elections as the presidential contest.
There is also only a remote possibility that a presidential election will be decided in the House of Representatives.
Only twice, in 1800 and 1824 has this happened. Both of these elections occurred before the various political factions
in the country were firmly consolidated into the two dominant political parties. The contests among various candidates
is today played out as various candidates seek the nomination of their parties. Despite the recent independent
candidacies of Ralph Nader, Ross Perot, and Pat Buchanan, the two major political parties have a virtual lock on the
presidential election process. One substantial factor in this domination is the federal matching campaign funds
program, enacted by Congress in 1974. To qualify for matching funds during the presidential primary, a candidate must
overcome several obstacles to obtain federal funds. In the general election the advantage of the two major parties is
even greater, where a party that obtains twenty-five percent or greater of the popular vote in the previous presidential
election is considered a “major party” qualifies for substantial federal matching funds. Minor parties qualify for a much
smaller amount if they garner more than five percent of the popular vote. Ky Fullerton, writing in the Oregon Law
Review of Summer 2001, makes this point clearly: “In light of the two major parties’ enormous edge in fundraising, the
current system strongly favors Republicans and Democrats. Matching funds provided by the government only enhance
the financial gulf between the major parties and smaller parties. In addition to enormous amounts of money, parties
seeking matching funds must also have a widespread, national organization. The requirements needed to obtain
matching funds are a likely reason why no third-party candidate after the advent of federal matching funds has come
even remotely close to depriving a candidate of an electoral vote majority.”
 8

TERMS RELEVANT TO THE ELECTORAL VOTE TOPIC

Elector: The official Web site of the Electoral College offers the following explanation of the origin of the
terms, “elector,” and “Electoral College:” The founders appropriated the concept of electors from the
Holy Roman Empire (962 - 1806). An elector was one of a number of princes of the various German
states within the Holy Roman Empire who had a right to participate in the election of the German king
(who generally was crowned as emperor). The term "college" (from the Latin collegium), refers to a body
of persons that act as a unit, as in the college of cardinals who advise the Pope and vote in papal
elections. In the early 1800's, the term "electoral college" came into general usage as the unofficial
designation for the group of citizens selected to cast votes for President and Vice President. It was first
written into Federal law in 1845, and today the term appears in 3 U.S.C. section 4, in the section
heading and in the text as "college of electors."
Faithless Electors: This is a term used to describe members of the Electoral College who vote for a different
presidential candidate than the one for whom they had pledged to vote. In U.S. history, there are 87
instances of faithless electors. In most instances, faithless electors have acted alone, but in 1836 there
was an instance of 23 Virginia electors conspiring with one another to vote for a different candidate than
the one for whom they were instructed to vote.
Federalism: This term is often used to indicate a system of government where power is divided between a
central government and smaller regional government units. In the United States, this means a sharing of
power between the central government in Washington, D.C. and the various state governments. States
can allegedly serve as “laboratories of democracy, where government can better adapt to regional
variations in needs and political attitudes. The promotion of a system of federalism is often mentioned as
a key advantage of the Electoral College system.
National Popular Vote Plan (NPV): Under the NPV, states pass laws awarding their votes in the electoral
college to the winner of the national popular vote. California was the first state legislature to pass an
NPV plan, but it was subsequently vetoed by Governor Arnold Schwarzenegger. In August of 2011,
however, Governor Jerry Brown signed the legislation, committing California’s 55 electoral votes to the
new plan. Seven other states, including Hawaii, Vermont, Washington, Maryland, Illinois, New Jersey,
Massachusetts, have also signed onto the NPV proposal. The plan would become active only when, and
if, states constituting at least 270 electoral votes have adopted NPV plans. As of October 2011, states
accounting for 132 electoral votes – or about half of the necessary total – have agreed to the pledge.
Two-Party System: Most political analysts agree that the Electoral College system marginalizes the power of
third parties. Even when third party candidates have a significant national following, they are unable to
capture any votes in the Electoral College system.
U.S. Constitution, Article II, Section 1: “Section 1. The executive Power shall be vested in a President of the
United States of America. He shall hold his Office during the Term of four Years, and, together with the
Vice President, chosen for the same Term, be elected, as follows: Each State shall appoint, in such
Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of
Senators and Representatives to which the State may be entitled in the Congress: but no Senator or
Representative, or Person holding an Office of Trust or Profit under the United States, shall be
appointed an Elector.”
Winner-take-all versus Proportional Voting: The official Web site of the U.S. Electoral College offers the
following explanation of the difference between “winner-take-all” and “proportional voting” states: There
are 48 States that have a winner-takes-all rule for the Electoral College. In these States, whichever
candidate receives a majority of the vote, or a plurality of the popular vote (less than 50 percent but
more than any other candidate) takes all of the State's electoral votes. Only two States, Nebraska and
Maine, do not follow the winner-takes-all rule. In those States, there could be a split of electoral votes
among candidates through the State's system for proportional allocation of votes.
 9

KEY WEB SITES RELEVANT TO THE NOVEMBER ELECTORAL VOTE TOPIC

American Enterprise Institute: http://www.aei.org/docLib/20080407_1222954OTIBerns_g.pdf. This April
2008 article, entitled, “The Case for Keeping the Electoral College” is written by Walter Berns, a resident
scholar at the American Enterprise Institute. Bern examines recent proposals to replace the Electoral
College with the popular vote, but finds the reasons unconvincing.
Cato Institute: www.cato.org. This conservative think tank offers numerous articles defending the Electoral
College system. In a March 9, 2011 article, John Samples, director of Cato’s Center for Representative
Government, offers the following conclusion: “Many states, large and small, have good reason to
maintain the Electoral College. The Electoral College follows the presidential vote in the overall
electorate. With so few benefits from change, why should state legislatures move toward direct election
of the president?” (http://www.cato.org/pub_display.php?pub_id=12859).
FairVote: http://archive.fairvote.org/e_college/problems.htm. This organization describes its purpose as
follows: “FairVote is dedicated to fair elections where every vote counts and all voters are represented.
As a catalyst for reform, we conduct research, analysis, education and advocacy to build understanding
of and support for more democratic voting systems. We promote full representation as an alternative to
winner-take-all elections and instant runoff voting as an alternative to plurality elections and traditional
runoff elections.”
Mother Jones: http://motherjones.com/politics/2004/10/indefensible-electoral-college. This October 8, 2004
artilce by Bradford Plumer is entitled, “The Indefensible Electoral College: Why Even the Best-Laid
Defenses of the System Are Wrong.” Among the many arguments offered by Plumer is the following:
“Perhaps most worrying is the prospect of a tie in the electoral vote. In that case, the election would be
thrown to the House of Representatives, where state delegations vote on the president. (The Senate
would choose the vice-president.) Because each state casts only one vote, the single representative
from Wyoming, representing 500,000 voters, would have as much say as the 55 representatives from
California, who represent 35 million voters. Given that many voters vote one party for president and
another for Congress, the House's selection can hardly be expected to reflect the will of the people.”
National Archives and Records Administration (NARA): http://www.archives.gov/federal-register/electoral-
college/about.html. This is the official Web site of the U.S. Electoral College: “The Electoral College,
administered by the National Archives and Records Administration (NARA), is not a place. It is a
process that began as part of the original design of the U.S. Constitution. The Electoral College was
established by the founding fathers as a compromise between election of the president by Congress and
election by popular vote. The people of the United States vote for the electors who then vote for the
President.”
National Popular Vote (NPV): http://www.nationalpopularvote.com/. This is the Web site of the group
encouraging state legislatures to adopt the NPV plan; this plan would commit each participating state
government to pledging its state electors in the Electoral College to vote for the winner of the national
popular vote. This plan would become active once states constituting at least 270 electoral votes (the
margin necessary for election) had signed on to the NPV plan.
University of Pennsylvania Law School: http://www.pennumbra.com/debates/debate.php?did=8. This Web
site provides full text access to an outstanding debate about the wisdom of maintaining the Electoral
College system. Professor Sanford Levinson, of the University of Texas Law School finds it
embarrassing that the world’s leading proponent of democracy maintains such an obviously flawed
system for the election of its most powerful official. Professor Daniel Lowenstein, of UCLA Law School,
and Professor John McGinnis, of Northwestern Law School defend the Electoral College System.
Among Professor McGinnis’ arguments is the following claim that the Electoral College promotes
legitimacy: “The Electoral College also performs well, and perhaps better than the popular vote, in the
second important goal of an electoral system: bestowing legitimacy on the president. It has been noted
that the Electoral College tends to magnify the winner’s margin of victory. Particularly among the general
public as opposed to the political cognoscenti, this greater margin bestows a greater legitimacy. The
sense of legitimacy is especially important for the president because in our system the president is not
only the head of government, but the head of state, unifying the nation in times of crisis.”
 10

PRO CASE #1: DEMOCRATIC GOVERNMENT

The thesis of this case is that to be democratically legitimate, elections must allow all citizens to have an equal
vote. The Electoral College violates this fundamental standard in many ways. Citizens in some states have less voice
than those in other states. Because the Electoral College in 48 states operates in a winner-take-all fashion, those
citizens who vote for the losing candidate in their state have no vote whatsoever for president of the United States.
Finally the President and Vice President of the United States are the only government officials who represent the entire
nation. They are also the only government officials who can be elected if they fail to obtain the most popular votes. No
other elective office uses a system similar to the Electoral College. Governors and United States Senators are not
elected on the basis of majority votes in counties or Congressional districts. The Electoral College is fundamentally
undemocratic.
OBSERVATION
I. THE CRITERIA FOR DEMOCRATIC GOVERNMENT IS THAT EVERY CITIZEN SHOULD HAVE AN EQUAL
OPPORTUNITY TO VOTE AND THAT ALL VOTES MUST BE COUNTED AS EQUAL.
Robert A. Dahl, (Prof., Political Science, Yale U.), ON DEMOCRACY, 1998, 37-38.
When the moment arrives at which the decision about policy will finally be made, every member must
have an equal and effective opportunity to vote, and all votes must be counted as equal.
Robert A. Dahl, (Prof., Political Science, Yale U.), ON DEMOCRACY, 1998, 65.
In arriving at decisions, the government must give equal consideration to the good and interests of
every person bound by these decisions.
CONTENTIONS
I. THE ELECTORAL COLLEGE VIOLATES THE EQUALITY PRINCIPLE IN VOTING.
A. CITIZENS’ VOTES ARE NOT COUNTED EQUALLY.
Ky Fullerton, (Staff), OREGON LAW REVIEW, Summer 2001, 731-732.
Senator Dick Durbin describes the Electoral College as undemocratic and unfair. It distorts the election
process, with some votes by design having more weight than others. Imagine for a moment if you were
told as follows: We want you to vote for President. We are going to give you one vote in selection of the
President, but a neighbor of yours is going to have three votes in selecting the President. You would say
that is not American; that is fundamentally unfair. We live in a nation that is one person, one citizen, one
vote. But that is exactly what the Electoral College does.
Brandon Robb, (J.D. Candidate), LOYOLA LAW REVIEW, Summer 2008, 447.
In the 2000 presidential election (in which the electoral vote allocation to the states was based on the
1990 U.S. Census), Wyoming's 3 electoral votes, when divided among its population, corresponded to one
electoral vote per every 151,196 persons. In contrast, California's 54 electoral votes, when similarly
divided, corresponded to one electoral vote per every 551,112 persons. Thus, an individual voter in
Wyoming has more power in determining how his or her state's electoral votes will be awarded than a
voter in California. The concept of voters exercising more power in a presidential election because they
live in Wyoming instead of California, or Vermont instead of Texas, ought to raise serious concerns about
the equity of the winner-take-all approach to the Electoral College, especially given that the system
"punishes" voters for living in a larger state.
B. MANY CITIZENS HAVE NO VOTE.
Stanley Chang, (J.D. Candidate, Harvard Law School), HARVARD JOURNAL ON LEGISLATION, Winter
2007, 205.
The Electoral College is an anomaly of the American democracy. The United States is virtually alone
in entrusting the election of its President to a small, largely anonymous group of individuals, rather than to
its citizen voters.
David Gringer, (Ph.D. Candidate), COLUMBIA LAW REVIEW, Jan. 2008, 224-225.
In the long run, however, the electoral college must go. Democracy simply does not function as well in
an environment where two-thirds of voters are made to be bystanders.
 11

Matthew Festa, (Staff), VANDERBILT LAW REVIEW, Oct. 2001, 2101-2102.

The Constitution leaves the decision on how to allocate its electoral votes completely to the discretion
of each state. There are a number of different methods from which the states could choose; an
overwhelming majority of states employ the unit rule. This method has become unpopular with many
commentators and has been the subject of much criticism. Included in the bill of charges against the
method are that it amplifies the effect of the imbalanced allocation of electoral votes, and that it fails to
"count" the votes within a state that were cast for a losing candidate.
C. THE ELECTORAL COLLEGE ALLOWS THE ELECTION OF CANDIDATES WHO HAVE NOT RECEIVED
THE MOST POPULAR VOTE.
1. Electing presidents receiving a minority of the popular vote is a significant threat.
Stanford Levinson, (Prof., Law, U. Texas Law School), UNIVERSITY OF PENNSYLVANIA PENNUMBRA,
2007, 12.
So what are the primary deficiencies of the Electoral College? I begin with the most obvious one: It
regularly sends to the White House persons who did not receive a majority of the popular vote. Since
World War II alone, this has included Truman, Kennedy, Richard Nixon (1968), Bill Clinton (1992 and
1996), and George W. Bush (2000).
Ky Fullerton, (Staff), OREGON LAW REVIEW, Summer 2001, 736.
One argument commonly advanced in support of the Electoral College is that popular vote losers
rarely assume the Presidency. For instance, Senator Peter Fitzgerald argues that "[t]he occasional
difference between the electoral and popular vote tallies is a small price to pay for a system that helps
preserve national unity and gives small groups significant voices and protections in our presidential
contests." Indeed, prior to 2000, the last time a popular vote loser prevailed in a presidential election was
in 1888. But the threat of such an occurrence is more than just an occasional one. A close examination of
the ten elections prior to 2000 reveals three separate incidents in which a popular vote winner nearly failed
to obtain an electoral vote majority.
Ky Fullerton, (Staff), OREGON LAW REVIEW, Summer 2001, 754-755.
For more than 200 years, the United States has relied on the Electoral College to select its Presidents.
Under this system, four Presidents have assumed office despite losing the popular vote. On several other
occasions, including the elections of 1960, 1968, and 1976, minor vote shifts in key states would have
turned popular vote losers into Presidents. These results are contrary to the essence of democracy.
Furthermore, as the election of 2000 demonstrated, the Electoral College can create tremendous
uncertainty in presidential elections. This uncertainty threatens the legitimacy of the office of the President
at home and abroad.
Arthur M. Schlesinger, Jr., (Historian and Former Special Assistant to President Kennedy), THE AMERICAN
PROSPECT, Mar. 25, 2002, 23.
The Republic later went through several other elections in which a small shift of votes would have
given the popular-vote loser an electoral-college victory. In 1916, if Charles Evans Hughes had gained
4,000 votes in California, he would have won the electoral-college majority, through he lost the popular
vote to Woodrow Wilson by more than half a million. In 1948, a shift of fewer than 30,000 votes in three
states would have given Thomas E. Dewey the electoral-college majority, though he ran more than two
million votes behind Harry Truman. In 1976, a shift of 8,000 votes in two states would have kept President
Gerald Ford in office, though he ran more than a million and a half votes behind Jimmy Carter.
2. Electing minority Presidents undermines the democratic legitimacy.
Ky Fullerton, (Staff), OREGON LAW REVIEW, Summer 2001, 753.
Instances where a popular vote loser prevails in the Electoral College are "fraught with danger. The
legitimacy and governability of a president without a popular vote majority is prima facie suspect. A system
that does not include direct expression of the voice of the people undermines the principle of a government
with the consent of the governed." Electing a President who loses the popular vote "undermines respect
for the system and compromises the new president's mandate to govern.
 12

D. ALLOWING THE HOUSE OF REPRESENTATIVES TO SELECT THE PRESIDENT IS COMPLETELY

UNDEMOCRATIC.
James Rose, (Staff), WESTCHESTER BAY JOURNAL, Winter 1996, 75.
If the vote for president is close in each state, a vote for a presidential elector in New York has more
weight than one in Montana because it can mean the difference of many more electoral votes. On the
other hand, if the election is decided by the House of Representatives then each state's delegation to the
House of Representatives has one vote a piece. The vote of California's entire delegation can be counter
balanced by the vote of the single Vermont congressman, a literal case of "one state, one vote."
II. REPLACING THE ELECTORAL VOTE WITH THE DIRECT POPULAR VOTE BEST GUARANTEES THE
EQUALITY PRINCIPLE IN VOTING.
A. ONE-PERSON-ONE-VOTE IS ACHIEVED.
Michael Herz, (Prof., Law, Yeshiva U.), CARDOZO LAW REVIEW, March 2002, 1194-1195.
As Senator Birch Bayh, another longtime opponent of the Electoral College, succinctly put it at the
beginning of a hearing on his proposal for direct election of the President: Unless someone does a
superhuman job of persuading, I am going to remain convinced the direct election should replace our
present system, because direct election is the only system that guarantees that every vote will count, that
every vote will count the same, and that the candidate with the most votes will win.
Michael Nelson, (Staff), THE AMERICAN PROSPECT, Dec. 4, 2000. Retrieved Oct. 9, 2011 from
http://prospect.org/cs/articles?article=college_for_dunces.
The case for allowing voters to elect the president in the same way they elect virtually every other
official at every level of government is strong verging or self-evident. Indeed, liberal progressives won the
theoretical argument years ago, when they successfully advanced the cause of direct election of senators
(originally, state legislatures chose them) and of primaries to nominate candidates.
B. THE WILL OF THE MAJORITY WILL PREVAIL.
Stanley Chang, (J.D. Candidate, Harvard Law School), HARVARD JOURNAL ON LEGISLATION, Winter
2007, 229.
The NPV legislation stands for a simple principle: every vote is equal. It is a laudable proposal, whose
benefits outweigh its costs, as well as an innovative way to update the Constitution's structure to reflect the
preference in modern politics for majoritarian rule. For these reasons, it should be enacted.
III. FEDERALISM IS NO BASIS FOR REJECTING THE POPULAR VOTE.
A. THE PRESIDENT REPRESENTS ALL OF THE PEOPLE, NOT THE STATES.
Ann Althouse, (Prof., Law, U. Wisconsin), NORTHWESTERN U. LAW REVIEW, Spr. 2001, 1003-1004.
The President represents the people as a whole, not on a state-by-state basis. On the level of
theoretical federalism, this argument makes a lot of sense. The President cannot channel the preferences
and interests of any individual state, unlike a senator, who, once elected, operates as a separate decision
maker through whom one state's people can find political expression.
B. NO OTHER FEDERAL ELECTION ALLOWS THE CANDIDATE WITH FEWER VOTES TO PREVAIL.
Paul Finkelman, (Prof., Law, U. of Tulsa), CARDOZO LAW REVIEW, Mar. 2002, 1145-1146.
How did the United States come up with such a crazy way to elect a president? The Electoral College
system seems to make no sense. It is quite undemocratic. The tiny states have proportionately more
power than the larger states. In addition, the winner-take-all process makes voting seem meaningless in
many states. As the 2000 election demonstrates, having more popular votes than your opponent does not
guarantee that the candidate will win the election. This only reconfirmed what the nation learned in 1824,
1888, 1876, and probably 1800. The system seems to be unique in the United States — applying only to
the presidential election — and unique to the United States. I know of no western or industrialized
democracy that uses such a system. As far as I know, the presidency is the only office in the United States
in which the person with the most votes in the final election does not necessarily win. In every state,
county, and local election, in all elections for members of the House of Representatives and the Senate,
the person with the most votes in the final election wins.
 13

PRO CASE #2: RACIAL DISCRIMINATION

The thesis of this case is that the Electoral College is fundamentally unjust because it serves as a means to dilute
the voting power of ethnic minorities, especially African Americans. The fact of the matter is that in a number of states,
voting is polarized along racial lines. Because the Electoral College uses the winner-take-all system, the views of
minority voters in states where the voting is racially polarized are virtually ignored. At one time in our history, this was a
commonly-used mechanism to effectively disenfranchise African-American voters. State legislators drew
Congressional districts in such a way as to assure that no African-American or other ethnic minority could be elected.
City council seats were often elected on a winner-take-all city-wide basis rather than on a district basis. The Supreme
Court of the United States has ruled that such practices were basically unconstitutional because they prevented
minority voters from having any impact on choosing those who govern them. The law of the land today is that electoral
systems may not, as a matter of justice, dilute the strength of minority voters. Unfortunately, the Electoral College
winner-take-all system continues to function in the same way to marginalize racial and ethnic minorities by diluting their
vote. It is interesting to note that the Electoral College was originally established because of the insistence of slave
states to protect the institution of slavery.
OBSERVATION
I. DISCRIMINATION AGAINST RACIAL MINORITIES IS UNJUST.
Andrew Altman, (Prof., Philosophy, Georgia State U.), Stanford Encyclopedia of Philosophy, Dec. 11, 2007.
Retrieved Oct. 9, 2011 from http://plato.stanford.edu/entries/civil-rights/#WhyDisUnj.
In contemporary political thought, the term “civil rights” is indissolubly linked to the struggle for equality
of American blacks during the 1950s and 60s. The aim of that struggle was to secure the status of equal
citizenship in a liberal democratic state. Civil rights are the basic legal rights a person must possess in
order to have such a status. They are the rights that constitute free and equal citizenship and include
personal, political, and economic rights. No contemporary thinker of significance holds that such rights can
be legitimately denied to a person on the basis of race, color, sex, religion, national origin, or disability.
CONTENTIONS
I. THE ELECTORAL COLLEGE DISCRIMINATES AGAINST RACIAL MINORITIES.
A. RACIAL POLARIZATION OF VOTING IS A SIGNIFICANT FACTOR IN MANY STATES.
Matthew Hoffman, (J.D., Yale Law School), YALE LAW JOURNAL, Jan. 1996, 960.
Racial appeals continue to be a staple of presidential politics. Rather than relying on overt racist
imagery, as Thurmond did in 1948, modern politicians generally play the “race card” through subtle use of
code words and careful manipulation of racial imagery. For example, George Bush’s victory over Michael
Dukakis in 1988 is frequently attributed to his campaign’s skillful handling of racial imagery — most notably
the infamous “Willie Horton” episode. Indeed, many of the rhetorical devices and subtle racial images
employed by modern-day Republicans are essentially variations on themes developed by Wallace in his
1968 campaign. Issues of race are frequently closely tied to a number of “social issues,” ranging from
crime to welfare to affirmative action.
Matthew Hoffman, (J.D., Yale Law School), YALE LAW JOURNAL, Jan. 1996, 961-962.
In short, race has by no means been a trivial or incidental issue in presidential politics of the modern
era. Far from it, race has been a central issue in the most important political trend of the last fifty years: the
conversion of the South from a Democratic bastion to a Republican one, and the Republican party's
corresponding shift from a moderate stance on racial policies to a much more extreme position. In effect,
the battle between the parties for control of the South has led to their severe divergence with respect to
racial issues — a change that has been felt not just in the South, but nationwide.
B. THE WINNER-TAKE-ALL RULE USED BY MOST STATES DISCRIMINATES AGAINST RACIAL
MINORITIES IN STATES WITH POLARIZED VOTING.
Matthew Hoffman, (J.D., Yale Law School), YALE LAW JOURNAL, Jan. 1996, 937.
Voting in presidential elections is highly polarized along racial lines. Consequently, choosing
presidential electors through the winner-take-all system results in a paradigmatic example of the kind of
discrimination that it was meant to eliminate. Its all-or-nothing character prevents the formation of politically
cohesive blocs of African-American voters — and possibly blocs of other minority voters as well — even in
states where they clearly could choose one or more electors under an alternative system.
 14

C. THE ELECTORAL COLLEGE MINIMIZES THE POWER OF RACIAL MINORITIES IN PRESIDENTIAL

ELECTIONS.
Matthew Hoffman, (J.D., Yale Law School), YALE LAW JOURNAL, Jan. 1996, 938.
Suppose that a state with a large minority population decided to adopt the winner-take-all rule for
elections to the House of Representatives — as, under the Constitution, states are entitled to do. Under
this system, each party would nominate a slate of congressional candidates, and voters would simply vote
for one party or the other. In that case, the majority faction in the state would be able to choose all of the
state's congressional representatives in the House and the Senate. If voting were polarized along racial
lines, it seems evident that the votes of racial minorities would be almost worthless, and that they would be
virtually unrepresented in the national legislature. Such a system would seem patently unfair - and yet it is
precisely the same system that we currently countenance for the selection of presidential electors.
II. THE ELECTORAL COLLEGE WAS ESTABLISHED TO PROMOTE A RACIST AGENDA.
A. THE SOUTHERN SLAVE STATES WERE THE PRIMARY SUPPORTERS OF THE ELECTORAL COLLEGE.
Akhil Amar, (Prof., Law, Yale U.), OHIO NORTHERN UNIVERSITY LAW REVIEW, 2007, 470.
The biggest flaw in standard civics accounts of the electoral college is that they never mention the real
demon dooming direct national election in 1787 and 1803: Slavery. At the Philadelphia convention, the
visionary Pennsylvanian, James Wilson, proposed direct national election of the President. But in a key
speech on July 19, the savvy Virginian James Madison suggested that such a system would prove
unacceptable to the South: "The right of suffrage was much more diffusive [i.e., extensive] in the Northern
than the Southern States; and the latter could have no influence in the election on the score of the
Negroes." In other words, in a direct election system, the North would outnumber the South, whose many
slaves (more than half a million in all) could not vote. The electoral college-a prototype of which Madison
proposed in this same speech-instead let each southern state count its slaves, albeit with a two-fifths
discount, in computing its share of the overall electoral college.
B. THE ORIGINAL PURPOSE OF THE ELECTORAL COLLEGE WAS TO PROMOTE SLAVERY.
L. Darnell Weeden, (Associate Dean, Texas Southern University), OHIO NORTHERN UNIVERSITY LAW
REVIEW, 2008, 395.
Professor Amar's attempt at "connecting the dots" between slavery and the Electoral College is very
useful information that should be taught in grade school so students will be exposed to a balanced view of
American history and the continuing impact of slavery on the American political process. Professor Amar
does not leave any reasonable doubt in the mind of his readers that today's Electoral College menace was
designed to accommodate promoters of slavery rather than the democratic self- interest of voters in a free
society. If more Americans appreciated the pro-slavery justification for establishing the Electoral College,
perhaps they would insist that the proper constitutional process be implemented to abolish the Electoral
College, which has become tainted by slavery.
III. REPLACING THE ELECTORAL VOTE WITH DIRECT ELECTION WILL PROMOTE JUSTICE FOR RACIAL
MINORITIES.
HARVARD LAW REVIEW, June 2001, 2545.
The importance of the one-person, one-vote equality value has been most prominently articulated by
the Supreme Court in Gray v. Sanders, in which it held that a state primary voting system modeled after
the Electoral College was a violation of the Constitution's equal protection guarantee.
Ky Fullerton, (Staff), OREGON LAW REVIEW, Summer 2001, 746-747.
Only a direct election system gives individual votes equal weight. In Gray v. Sanders, the Supreme
Court stated: "The conception of political equality from the Declaration of Independence, to Lincoln's
Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing
— one person, one vote." Gray involved a challenge to Georgia's indirect primary system, where
candidates for statewide offices were elected by county unit vote rather than direct popular vote. Georgia
attempted to analogize its unit voting system to the Electoral College, but the Court dismissed the analogy
as "inapposite" and struck down the statute as unconstitutional. The Court's only justification for this
conclusion was that the text of the Constitution explicitly provides for the Electoral College. Reconciling the
Court's holding in Gray, which required an equal dispersal of votes among a candidate's constituency, with
the winner-take-all system of the Electoral College is difficult at best.
 15

PRO CASE #3: DEMOCRATIC LEGITIMACY

The thesis of this case is that in any democratic society the legitimacy of any elected official is established by that
person’s having been endorsed by the popular will in an election. The Electoral College fails to provide democratic
legitimacy for several reasons. Obviously, when the Electoral College elects someone with fewer popular votes, the
winner’s legitimacy must be called into question. The Electoral College, however, always undermines the popular will
in that it discourages many people from voting because they know their vote will not count and because the Electoral
College causes candidates to focus almost exclusively on battleground states ignoring most of the electorate. Studies
show that this results in a much less informed electorate in non-battleground states. Obviously, the popular will
depends on an informed electorate and the Electoral College diminishes that in the non-battleground states.
OBSERVATIONS
I. THE ABILITY TO BESTOW DEMOCRATIC LEGITIMACY IS THE STANDARD FOR DETERMINING WHICH
ELECTORAL SYSTEM IS SUPERIOR.
Marjorie E. Kornhauser, (Prof., Law, Tulane Law School), BUFFALO LAW REVIEW, Fall 2002, 830-831.
Legitimacy justifies and transforms the power of government through a moral authority derived from
the consent of both the governed and the governing to both the existence and justness of the existing
order. Legitimacy is, therefore, an essential aspect of a regime's stability because this moral authority
forms the basis of its legal and political authority. Legitimacy persuades the majority of people to accept
the status quo: to follow laws enacted by the government.
II. THE CRITERION FOR DEMOCRATIC LEGITIMACY IS THE POPULAR WILL.
Roberta Yard, (Editor), SANTA CLARA LAW REVIEW, 01, 185-186.
A basic principle of democracy is that a majority should rule.
Ky Fullerton, (Staff), OREGON LAW REVIEW, Summer 2001, 753.
Finally, and perhaps most importantly, losing the popular vote seriously threatens a President's
legitimacy. Allowing a President to win office despite losing the popular vote is contrary to America's time-
honored principles of majoritarian democracy. Akhil Amar predicted in 1995 that "[o]ne day, we will end up
with a clear Loser President--clear beyond any quibbles about uncertain ballots. And the question is, will
this Loser/Winner be seen as legitimate at home and abroad?" Others agree with Amar's assessment.
Instances where a popular vote loser prevails in the Electoral College are "fraught with danger. The
legitimacy and governability of a president without a popular vote majority is prima facie suspect. A system
that does not include direct expression of the voice of the people undermines the principle of a government
with the consent of the governed." Electing a President who loses the popular vote "undermines respect
for the system and compromises the new president's mandate to govern."
CONTENTIONS
I. THE ELECTORAL COLLEGE UNDERMINES DEMOCRATIC LEGITIMACY.
A. THE ELECTORAL COLLEGE IGNORES THE POPULAR WILL WHEN IT OVERTURNS THE POPULAR
VOTE.
Ky Fullerton, (Staff), OREGON LAW REVIEW, Summer 2001, 754-755.
For more than 200 years, the United States has relied on the Electoral College to select its Presidents.
Under this system, four Presidents have assumed office despite losing the popular vote. On several other
occasions, including the elections of 1960, 1968, and 1976, minor vote shifts in key states would have
turned popular vote losers into Presidents. These results are contrary to the essence of democracy.
Furthermore, as the election of 2000 demonstrated, the Electoral College can create tremendous
uncertainty in presidential elections. This uncertainty threatens the legitimacy of the office of the President
at home and abroad.
 16

Matthew Festa, (Staff), VANDERBILT LAW REVIEW, Oct. 2001, 2100-2101.

On November 1, 2000, a Joint Resolution was introduced in Congress proposing a constitutional
amendment to change the Article II system of electing the President and Vice President by abolishing the
Electoral College. Acknowledging the fact that "there have been more congressionally proposed
constitutional amendments on this subject than any other," the sponsoring Senator noted that the issue
"could become supremely important in a few days," because "we have the possibility that the winning
candidate for President might not win the popular vote in our country." One prominent legal scholar has
described the mere possibility of such an event as "a constitutional accident waiting to happen. Six days
later, on election day 2000, the Senator proved to be a prophet (the issue was not fully resolved for over a
month). Governor George W. Bush won the presidency with 271 electoral votes, despite Vice President Al
Gore tallying more popular votes. The possibility of a split between the electoral vote and the popular vote
moved from the province of mere academic speculation to political reality, n8 and the Electoral College
debate moved with it to the forefront of public consciousness.
B. THE ELECTORAL COLLEGE ALLOWS ELECTORS TO IGNORE THE RESULTS OF AN ELECTION
WITHIN A STATE.
Roberta Yard, (Editor), SANTA CLARA LAW REVIEW, 2001, 213.
A reform that should go hand in hand with proportional representation is for states to enact legislation
to bind their electors to vote according to the popular vote. All reform efforts would be for naught if electors
can completely disregard the popular vote and cast their vote for any candidate they choose. Currently,
twenty-three states do not place any restrictions on how electors cast their ballots. Even though the
incidents of faithless electors are minimal, that does not mean states should rely on electors' moral
obligation to follow the popular vote. States should enact legislation to mandate electors to follow the
popular vote. This would ensure that the popular vote, and not an elector's whim, would determine the
outcome of the election.
Beverly Ross, (Prof., Law, St. Thomas U. School of Law), JOURNAL OF LAW AND POLITICS, Fall 1996,
672.
More important than the faithless elector is the increasing possibility of substantial national
independent or third party candidacies for President and Vice President. Such candidacies make it more
likely that all candidates may compete for elector ballots, at least in the non-binding states, in close
popular elections or when some of the contingencies described above materialize after Election Day but
before the electors cast their ballots. Moreover, such candidacies could prolong the competition through
Congress counting of the elector vote certificates and through any House election of a President or Senate
election of a Vice President, with their attendant delays and risks.
C. THE ELECTORAL COLLEGE ENCOURAGES CAMPAIGNS TO IGNORE MUCH OF THE NATION.
William Benoit, (Prof., Communication, U. of Missouri), NEWSDAY, Apr. 20, 2004, A40.
So we should abolish the Electoral College as soon as possible. Electoral College rules discourage
presidential candidates from trying to inform the entire electorate, encouraging them to campaign only to
voters who happen to live in battleground states. The fact that it is a waste of time and money means there
is no reason whatsoever to retain it.
HARVARD LAW REVIEW, June 2001, 2544.
At the same time that the Electoral College encourages candidates to visit small states like West
Virginia or New Hampshire, it also encourages them to ignore entire regions that one party controls, such
as the Republican-dominated Deep South, Great Plains, and mountain states in the 2000 election. The
"national campaigns" argument might be recast as the normative assertion that "the American people are
better served by a system that does not allow lopsided sectional majorities to dominate the presidential
contest." This articulation at least explains why it might be beneficial to have a system that encourages
visits to some states rather than others.
 17

William Benoit, (Prof., Communication, U. of Missouri), NEWSDAY, Apr. 20, 2004, A40.
A second reason to abolish the Electoral College is the pernicious effect it has on campaigning.
Candidates know the rules. They know that winning a state by a million votes is no better than winning by
10,000 or 100 votes or even a single vote. In order to get the most "bang for the buck," candidates have
increasingly targeted the so-called battleground states. In 2000, some states were considered sure to go
for Bush; other states were certain to go for Gore. It would have been a waste of time and money for either
candidate to campaign in those states. For example, Bush did not need to campaign in states he was
expected to win (because Electoral College rules mean winning by a larger margin is no better than barely
winning). Similarly, Bush would have wasted resources to campaign in states he was expected to lose. As
a result, both candidates focused their campaigning in 2000 to about 24 key battleground states. President
Bush kicked off his re-election campaign with three ads that began airing on March 4. These ads were only
broadcast in 18 states (and on some cable networks). Sen. John Kerry is running ads in the same states.
Voters who live in the other 32 states might breathe a sigh of relief to discover what they are missing, but
this is unfortunate. Why does this matter? Because campaigns do educate voters. For example, many
studies have shown that, even though we may not like them, television spots do discuss issues and voters
do learn about the candidates' issue positions from these ads. Research using data from the National
Election Studies project found that voters who lived in battleground states — where the candidates actively
campaigned — had more knowledge of Bush's and Gore's positions on issues than voters who lived in
non-battleground states — where they did not campaign. So voters who happen to live in non-battleground
states had less issue knowledge because Electoral College rules discourage candidates from campaigning
in those states. This is anti-democratic. Abolishing the Electoral College would eliminate the disincentive to
limit campaigns to battleground states.
D. THE ELECTORAL COLLEGE REDUCES VOTER PARTICIPATION IN ELECTIONS.
William Benoit, (Prof., Communication, U. of Missouri), NEWSDAY, Apr. 20, 2004, A40.
First, the Electoral College may be reducing voter turnout. Everyone knows that Vice President Al
Gore received a half-million more votes than Gov. George W. Bush, but Bush became president. What
most people do not realize is the effect this could have on voters. Political observers have lamented a
steady decline in the percentage of voters who turn out for presidential elections. One potential reason for
declining turnout is a feeling of powerlessness among voters. In a country with more than 210 million
voting-age citizens, some people may feel that their votes do not count. Optimists can point to the fact that,
when the Florida recount was stopped, only 300 votes separated Bush and Gore. But others may think
instead that their votes did not count when a candidate who received a 500,000 majority was declared the
loser. Notice that, although Democrats might be more likely to feel disempowered at this moment in
history, Republicans may realize that this could happen to their candidate next time. Under the rules of the
Electoral College, many votes in fact do not count. The candidate who receives the most votes in a state
wins all of that state's electoral votes. It does not matter whether a candidate wins a state by one vote or
by a million: The extra votes do not help the winning candidate. Similarly, when candidates lose a state,
they get no electoral votes, regardless of how many votes they received. The votes of the million who
voted for the first candidate might just as well never have been cast. Although the people who supported
the loser will probably be most upset, all of the "extra" votes for the winner — over a majority-plus-one —
and all of the votes for the loser do not count. If we abolished the Electoral College via a constitutional
amendment, every vote cast would count, every vote cast would make a candidate closer to winning the
election.
II. REPLACING THE ELECTORAL VOTE WITH THE DIRECT POPULAR ELECTION ENHANCES DEMOCRATIC
LEGITIMACY IN PRESIDENTIAL ELECTIONS.
Brandon Robb, (J.D. Candidate), LOYOLA LAW REVIEW, Summer 2008, 459-460.
Switching to a national popular election, if anything, would create a disincentive for voter fraud, given
the extraordinary lengths a party would have to go to in order to succeed with it, and the greater likelihood
that any such Herculean vote-rigging plot would be discovered and its perpetrators punished. In addition, a
losing presidential candidate would be far less likely to contest an election if it involved having to "overturn"
an election in which their opponent won by hundreds of thousands or millions of votes nationwide instead
of by just several thousand votes in a few states, like in 1960, or a few hundred votes in one state, like in
2000.
 18

Ky Fullerton, (Staff), OREGON LAW REVIEW, Summer 2001, 742-743.

The notion that small states would suffer neglect under a direct election plan lacks merit. Common
sense dictates that presidential candidates will expend limited amounts of time and effort in states that are
dominated by either Republicans or Democrats. For example, neither Bush nor Gore visited Idaho during
the 2000 general campaign, an overwhelmingly Republican state with only four electoral votes. In similar
fashion, Bush made one brief campaign stop in the Republican stronghold of Utah, while Gore bypassed
the state entirely. Even small swing states received little attention in 2000. In Nevada, a poll taken one
week before the election showed that Bush’s lead over Gore was within the poll’s margin of error. But
during the campaign, Bush visited Nevada only once, and Gore stopped in Las Vegas twice. These data
suggest that direct election would actually encourage presidential candidates to visit states where the
popular vote outcome is a foregone conclusion. If every vote for President receives the same weight,
candidates would campaign wherever additional votes might be obtained. Under a direct election system,
states like Idaho and Utah would actually see more of the presidential candidates than under the Electoral
College system.
NEW YORK TIMES, Sept. 20, 1985, A30.
By providing for direct popular balloting, however, where each vote counts equally regardless of
whether it coincides with the majority in a particular state, more voters are encouraged to participate.
Under the present system, if in a particular state 3 million voters vote for candidate A, and 3.1 million for
candidate B, the three million who voted for candidate A don’t count and might as well have stayed home.
Arthur M. Schlesinger, Jr., (Historian and Former Special Assistant to President Kennedy), THE AMERICAN
PROSPECT, Mar. 25, 2002, 23.
Yet surely the 2000 election put the Republic in an intolerable predicament — intolerable because the
result contravened the theory of democracy. Many expected that the election would resurrect the
movement for direct election of presidents. Since direct elections have obvious democratic plausibility and
since few Americans understand the Electoral College anyway, its abolition seems a logical remedy.
Michael Herz, (Prof., Law, Yeshiva U.), CARDOZO LAW REVIEW, March 2002, 1193-1194.
As Representative Ray LaHood (R. III.), a long-time Electoral College opponent, it: "In our democracy,
if you run for dogcatcher it's decided by highest elected office in the country." For LaHood, having the
popular vote "overridden by the Electoral College" amounts to a "major calamity.”
Arthur M. Schlesinger, Jr., (Historian and Former Special Assistant to President Kennedy), THE AMERICAN
PROSPECT, Mar. 25, 2002, 23.
The direct-election plan meets the moral criteria of a democracy. It would elect the people's choice. It
would ensure equal treatment of all votes. It would reduce the power of sectionalism in politics. It would
reinvigorate party competition and combat voter apathy by giving parties the incentive to get out their votes
in states that they have no hope of carrying.
Arthur M. Schlesinger, Jr., (Historian and Former Special Assistant to President Kennedy), THE AMERICAN
PROSPECT, Mar. 25, 2002, 23.
Over the last half-century, many other eminent politicos and organizations have also advocated direct
popular elections: Presidents Richard Nixon and Gerald Ford; Vice Presidents Alben Barkley and Hubert
Humphrey; Senators Robert A. Taft, Mike Mansfield, Edward Kennedy, Henry Jackson, Robert Dole,
Howard Baker, and Everett Dirksen; the American Bar Association, the League of Women Voters, the
AFL-CIO, and the U.S. Chamber of Commerce. Polls have shown overwhelming public support for direct
elections.
 19

CON CASE #1: DEMOCRATIC FEDERALISM

The thesis of this case is that Democratic Federalism is the best system for governing the United States. This is a
large country with diverse interests characterizing various areas of the nation. Both the Federal legislative and judicial
branches are chosen on a state or regional basis. The President of the United States should be chosen on the basis of
two criteria: sufficient popular support to allow the President to govern legitimately and widespread support throughout
the nation. The Electoral College meets these criteria. Because it is based on a majority or plurality of votes counted in
each state and the District of Columbia. Winning the electoral vote requires widespread support throughout the nation.
In the vast majority of elections the candidate with the most electoral votes also wins the most popular votes. In those
few cases where the popular vote is won by a candidate who does not prevail in the Electoral College, the difference in
the popular vote is so small as to be inconsequential and is sufficient to offer democratic legitimacy to the winner in the
Electoral College.
OBSERVATIONS
I. DEMOCRATIC FEDERALISM IS THE STANDARD FOR DETERMINING THE BEST ELECTORAL SYSTEM FOR
THE UNITED STATES.
James McClellan, (Staff), INSIGHT ON THE NEWS, Dec. 18, 2000, 41.
The political value at stake, then, is federalism, not democracy. The question is not whether the
popular will, abstractly considered, shall govern, but how shall it be channeled and organized. When the
Preamble to the Constitution speaks of "We the People," it refers not to an inchoate mass of human beings
occupying the North American continent, but the people in the several states. And that is how the
Constitution was ratified: by the people in the states, irrespective of whether they constituted a majority of
the total population.
Thomas Neale, (Analyst, Government and Finance Division, Congressional Research Service), THE
ELECTORAL COLLEGE: REFORM PROPOSALS, Mar. 29, 2001, 1.
The founders intended that choosing the President would be the action of citizens of a federal republic,
in which they participate both as citizens of the United States, and as members of their state communities.
Joy McAfee, (Staff), CUMBERLAND LAW REVIEW, 2001/2002, 672.
The people elect the President of the United States within their respective states. We do elect our
President; we simply elect the candidate through our state. An element of the republic is that it is
representative.
II. THE SUPERIOR ELECTORAL SYSTEM IS ONE THAT PROMOTES RESPONSIVENESS TO ALL REGIONS OF
THE COUNTRY.
John McGinnis, (Prof., Law, Northwestern U. School of Law), UNIVERSITY OF PENNSYLVANIA
PENNUMBRA, 2007, 16.
In my view, the Electoral College fulfills the three essential criteria that any election for a president
must meet in a democracy. First, it measures what can be measured of the popular will sufficiently well to
make sure that the president has a popular basis of support. Second, its results tend to give the president
substantial political legitimacy. Finally, it enables democracy to fulfill its core but modest function--making it
more likely that leaders will govern in the public interest rather than in their own interest or in the interest of
narrow parochial factions.
Joy McAfee, (Staff), CUMBERLAND LAW REVIEW, 2001/2002, 671-672.
America elects a federal President, not a national President. A federal President is responsive to all
states because his or her election depends upon their very voice. Citizens live in the states, vote in the
states, and voices are channeled through the states. Citizens combine through local governments to
federal governments to create laws and elect representatives to the federal and state governments.
Organization through state representation is key to making the republic democratic.
Ann Althouse, (Prof., Law, U. Wisconsin), NORTHWESTERN U. LAW REVIEW, Spr. 2001, 1009.
Democracy is not a matter of one-person, one-vote but of building "widespread assent" though the
aggregation of a collection of minorities; “minorities rule” in a pluralistic country.
 20

CONTENTIONS
I. THE ELECTORAL COLLEGE UPHOLDS DEMOCRATIC FEDERALISM.
A. THE ELECTORAL COLLEGE REQUIRES CANDIDATES TO ADDRESS THE CONCERNS OF PEOPLE
THROUGHOUT THE NATION.
HARVARD LAW REVIEW, June 2001, 2544.
A final rationale for the Electoral College is that it encourages "truly national campaigns." The
winner-take-all aspect makes individual small states worth the trip, and the Senate add-on provision
magnifies the impact of small states that candidates would otherwise ignore.
Daniel Lowenstein, (Prof., Law, UCLA Law School), UNIVERSITY OF PENNSYLVANIA PENNUMBRA,
2007, 22.
Against all the pressures of nationalization, it is important to maintain the states as strong and vital
elements of our system, both in practice and in public understanding. Unlike some conservative
jurisprudes, I do not believe constitutional limits on the powers of the federal government are a promising
way to accomplish this. In practice, the Electoral College is by no means the most important institution we
have for strengthening the states, but neither is it by any means the least important.
B. THE ELECTORAL COLLEGE REQUIRES THAT THE WINNER HAVE BOTH SUFFICIENT AND
WIDESPREAD SUPPORT.
William Kimberling, (Deputy Dir., FEC Office of Election Administration), THE ELECTORAL COLLEGE,
2003, 1.
The Electoral College has performed its function for over 200 years (and in over 50 presidential
elections) by ensuring that the President of the United States has both sufficient popular support to govern
and that his popular support is sufficiently distributed throughout the country to enable him to govern
effectively.
Daniel Lowenstein, (Prof., Law, UCLA Law School), UNIVERSITY OF PENNSYLVANIA PENNUMBRA,
2007, 22.
The Electoral College turns the many winners who fail to win a majority of the popular vote into
majority winners. It also magnifies small majorities in the popular vote into large majorities. These effects
of the Electoral College enhance Americans' confidence in the outcome of the election and thereby
enhance the new president's ability to lead.
II. REPLACING THE ELECTORAL VOTE WITH THE DIRECT POPULAR VOTE UNDERMINES DEMOCRATIC
FEDERALISM.
Joy McAfee, (Staff), CUMBERLAND LAW REVIEW, 2001/2002, 661-662.
A national plurality is simply the calculation of the popular vote percentages in the country, with Bush
receiving 47.8% and Gore capturing his national plurality of 48.4%. This national plurality percentage will
not elect a President. Instead, a candidate must win a federal plurality by winning more populous votes
state-by-state. Bush won the federal plurality. By dividing the states into small and large states based upon
an average number of Electoral College votes, the country can be divided into thirty-one smaller states
and nineteen larger states. Bush received 67.7% of the thirty-one smaller state electoral votes to Gore's
32.2%. Furthermore, Bush received a close 47.4% of the nineteen larger states to 52.6% of Gore.
Capturing almost two-thirds of the smaller states and almost half of the larger states, the electoral votes of
Bush were distributed more evenly throughout the states than that of Gore, thus capturing the federal
plurality.
James McClellan, (Staff), INSIGHT ON THE NEWS, Dec. 18, 2000, 41.
And what results might we expect if the direct-election advocates have their way? The present system
forces presidential candidates to campaign on a national basis and to make their appeal to a broad cross-
section of the American electorate in every state. Candidates seeking support under a direct-election
arrangement on the other hand, surely would focus on the great urban centers, at the expense of the
smaller states and sparsely populated areas, if they expect to win.
 21

CON CASE #2: STABILITY

The thesis of this case is that the best electoral system is one that provides for the stability and welfare of the
nation. The Electoral College has demonstrated its ability to accomplish such a stable, safe, and prosperous society.
The reason for its success is that it guarantees that the voice of people throughout the nation will be heard and that
there is a clear winner.
OBSERVATIONS
I. AN OPTIMAL ELECTORAL SYSTEM WILL REFLECT THE DIVERSITY OF INTEREST THROUGHOUT THE
NATION.
Thomas Neale, (Analyst, Government and Finance Division, Congressional Research Service), THE
ELECTORAL COLLEGE: REFORM PROPOSALS, Mar. 29, 2001, 4.
Parties and candidates must conduct ideologically broad-based campaigns throughout the nation in
hopes of assembling a majority of electoral votes. The consequent need to forge national coalitions having
a wide appeal has been a contributing factor in the moderation and stability of the two-party system.
II. AN OPTIMAL ELECTORAL SYSTEM MUST PROVIDE A CLEAR WINNER.
John D. McGinnis, (Prof., Law, Cardozo Law School), FLORIDA STATE U. LAW REVIEW, 2001, 1001-1002.
Given that lack of clarity in high stakes politics dissolves social harmony, it is actually more important
that a close election have a clear result than that it pick the candidate with the most votes.
CONTENTIONS
I. THE ELECTORAL COLLEGE BEST REFLECTS THE DIVERSITY OF INTERESTS THROUGHOUT THE
NATION.
A. THE ELECTORAL COLLEGE REQUIRES CANDIDATES TO CONSIDER THE INTERESTS OF SMALL
STATES AND RURAL AREAS.
John D. McGinnis, (Prof., Law, Cardozo Law School), FLORIDA STATE U. LAW REVIEW, 2001, 1002.
Because an Electoral College system forces candidates to speak more widely in the country than wou
d a direct election, the concerns of a more diffuse population will be addressed. For instance, the concerns
of rural voters, who dominate some states but are more expensive to reach than urban voters, are more
likely to be discussed. Addressing the hopes and fears of the entire electorate is the therapeutic side of an
election. Citizen whose concerns are addressed (even if not satisfied) are less likely to cause social
unrest. The irenic catharsis engendered by an electoral system that focuses on disparate issues thus
promotes the stability.
B. THE ELECTORAL COLLEGE BEST PROTECTS THE INTERESTS OF ETHNIC AND OTHER MINORITIES.
William Kimberling, (Deputy Dir., FEC Office of Election Administration), THE ELECTORAL COLLEGE,
2003, 1.
Proponents also point out that, far from diminishing minority interests by depressing voter participation,
the Electoral College actually enhances the status of minority groups. This is so because the votes of even
small minorities in a State may make the difference between winning all of that State's electoral votes or
none of that State's electoral votes.
League of Women Voters of Fairfax, Virginia, ELECTING THE PRESIDENT, Oct. 1992, 7-8.
Because of this "leverage effect" the presidency as an institution tends to be more sensitive to ethnic
minority and other special interest groups than does the Congress as an institution. Changing to a direct
election of the president, some believe, could actually damage minority interests since their votes would be
overwhelmed by a national popular majority.
C. RELYING ONLY ON THE POPULAR VOTE RISKS MARGINALIZING MANY REGIONS OF THE COUNTRY.
Associated Press, ST. LOUIS POST-DISPATCH, Sept. 7, 1997, 5E.
Critics of direct elections said it would lead to candidates concentrating only on heavily populated
areas, ignoring minorities and issues that can be crucial to winning specific states and putting more money
into television advertising rather than grass-roots organizing.
 22

II. THE ELECTORAL COLLEGE BEST GUARANTEES A CLEAR WINNER.

A. THE ELECTORAL COLLEGE GUARANTEES A CLEAR WINNER WITH SUFFICIENT AND WIDESPREAD
POPULAR SUPPORT.
Thomas Neale, (Analyst, Government and Finance Division, Congressional Research Service), THE
ELECTORAL COLLEGE: REFORM PROPOSALS, Mar. 29, 2001, 1.
American voters elect the President and Vice President of the United States under a complex
arrangement of constitutional provisions, federal and state laws, and political party practices known as the
Electoral College system. Despite occasional close elections, this system has delivered uncontested
results in 46 of 50 elections since adoption of the 12th Amendment, effective in 1804.
William Kimberling, (Deputy Dir., FEC Office of Election Administration), THE ELECTORAL COLLEGE,
2003, 1.
For the past hundred years, the Electoral College has functioned without incident in every presidential
election through two world wars, a major economic depression, and several periods of acute civil unrest.
Only twice in this century (the States' Rights Democrats in 1948 and George Wallace's American
Independents in 1968) have there been attempts to block an Electoral College victory and thus either force
a negotiation for the presidency or else force the decision into the Congress. Neither attempt came close
to succeeding. Such stability, rare in human history, should not be lightly dismissed.
B. REPLACING THE ELECTORAL VOTE WITH THE DIRECT POPULAR VOTE THREATENS TO PRODUCE
UNRESOLVED ELECTION OUTCOMES.
1. Reliance on the popular vote undermines the stability provided by the two-party system.
Arthur M. Schlesinger, Jr., (Historian and Former Special Assistant to President Kennedy), THE AMERICAN
PROSPECT, Mar. 25, 2002, 23.
The two-party system has been a source of stability; FDR called it "one of the greatest methods of
unification and of teaching people to think in common terms." The alternative is a slow, agonized descent
into an era of what Walter Dean Burnham has termed "politics without parties." Political adventurers might
roam the countryside like Chinese warlords, building personal armies equipped with electronic
technologies, conducting hostilities against various rival warlords, forming alliances with others, and, if they
win elections, striving to govern through ad hoc coalitions. Accountability would fade away. Without the
stabilizing influences of parties, American politics would grow angrier, wilder, and more irresponsible.
2. Reliance on the popular vote increases the threat of election fraud.
James McClellan, (Staff), INSIGHT ON THE NEWS, Dec. 18, 2000, 41.
And who would judge the election and declare the winner? A federal commission in Washington? Or
the secretary of state, who is likely to be an appointee of a candidate seeking re-election? In close
elections, such as the present one, would we not be compelled to recount the votes in every state? To
raise these questions — and there are many more — is to state the obvious truth that the direct-election
alternative might well produce more problems than the one that has faithfully served us all these years.
Opportunities for corruption seem to abound.
3. Reliance on the popular vote threatens drawn out recounts throughout the nation.
Michael Herz, (Prof., Law, Yeshiva U.), CARDOZO LAW REVIEW, March 2002, 18.
The Electoral College served to center the post-election battles in Florida. Without it, I fully expect we
would have seen vote recounts and court battles in nearly every state of the Union. Can you imagine the
problems in Florida multiplied 10, 25, or even 50 times? Rather than being an argument against the
Electoral College, the 2000 election was a strong and forceful warning against its abolition.
Susan Milligan, (Staff), BOSTON GLOBE, Nov. 11, 2000, A1.
"If we don't have an Electoral College, you'd be recounting every precinct in each US state," Nadler
said. "It would go on for months, maybe years."
 23

CON CASE #3: CONSENSUS DEMOCRACY

The thesis of this case is that the Electoral College best provides for a democratic consensus among diverse
groups. The Electoral College has accomplished this by promoting the development of the two-party system that has
served American democracy so well. The two parties tend to be broad coalitions embracing a wide variety of interests.
Effective democratic government requires a balance between the forces of conflict and consensus. The presence of
two broad-based political parties has provided that structure, allowing the popular vote to supersede the Electoral
College would undermine the dominance of the two-party system.
OBSERVATIONS
I. DEVELOPING A DEMOCRATIC CONSENSUS IS THE STANDARD FOR DETERMINING THE BEST
ELECTORAL SYSTEM.
John Bibby (Prof., Gov't., U. Wisconsin), POLITICS, PARTIES & ELECTIONS IN AMERICA, 1987, 17.
"'Democracy involves a balance between the forces of conflict and consensus.' Institutional structures
are needed to reflect and articulate the attitudes and demands of various elements of society. But conflict
must be held within reasonable bounds if the political order is to have any stability and continuity.
Structures for achieving agreement and consensus are required. As the discussion of party functions has
demonstrated, parties are central to these seemingly conflicting requirements of a democratic order. They
both reflect the conflicts in society and they are involved in the bargaining and negotiation needed to
achieve conflict resolution."
II. OBTAINING A DEMOCRATIC CONSENSUS REQUIRES COMPROMISE AMONG DIVERSE INTERESTS.
Herbert Asher (Prof., Political Science, Ohio State U.), PRESIDENTIAL ELECTIONS & AMERICAN
POLITICS, 1988, 24.
"The American parties . . . serve democracy by reaffirming and promoting its basic values. The very
activities of the two gigantic and diversified American parties promote a commitment to the values of
compromise.
James Reichley (Fellow, Brookings Inst.), THE LIFE OF THE PARTIES, 1992, 2.
"James Sundquist, from the programmatic party side, writes that parties are 'crucially necessary to
formulate governmental programs, to enact and execute those programs, and to account for them to the
electorate afterward.' Larry Sabato, who favors more pragmatic parties, regards them as 'vital, umbrella-
like, consensus-forming institutions that help counteract the powerful centrifugal forces in a country
teeming with hundreds of racial, economic, religious, and political groups.'
CONTENTIONS
I. THE ELECTORAL COLLEGE ADVANCES THE TWO-PARTY SYSTEM.
A. THE ELECTORAL COLLEGE DISCOURAGES EXTREMIST THIRD PARTY CANDIDATES.
Joy McAfee, (Staff), CUMBERLAND LAW REVIEW, 2001/2002, 656.
The two party political system is vital to our majority rule with minority rights. Without it, no majority
would ever rule, and only one minority could have rights. The two party system creates consensus by
forcing citizens to compromise at the state level within two political parties. If the Electoral College were
abolished, third parties could tabulate popular votes across state lines and no incentive to compromise
would exist. A rule of the minority with the consent of the majority is much less likely to create clear,
consistent elections like those of the Electoral College.
John McGinnis, (Prof., Law, Northwestern U. School of Law), UNIVERSITY OF PENNSYLVANIA
PENNUMBRA, 2007, 19.
According to Professor Dellinger, third party participation in a popular vote may give third parties
greater leverage to distort the results.
 24

William Kimberling, (Deputy Dir., FEC Office of Election Administration), THE ELECTORAL COLLEGE,
2003, 1.
Proponents further argue that the Electoral College contributes to the olitical stability of the nation by
encouraging a two-party system. There can be no doubt that the Electoral College has encouraged and
helps to maintain a two- party system in the United States. This is true simply because it is extremely
difficult for a new or minor party to win enough popular votes in enough States to have a chance of winning
the presidency. Even if they won enough electoral votes to force the decision into the U.S. House of
Representatives, they would still have to have a majority of over half the State delegations in order to elect
their candidate -- and in that case, they would hardly be considered a minor party. In addition to protecting
the presidency from impassioned but transitory third party movements, the practical effect of the Electoral
College (along with the single-member district system of representation in the Congress) is to virtually
force third party movements into one of the two major political parties. Conversely, the major parties have
every incentive to absorb minor party movements in their continual attempt to win popular majorities in the
States. In this process of assimilation, third party movements are obliged to compromise their more radical
views if they hope to attain any of their more generally acceptable objectives. Thus we end up with two
large, pragmatic political parties which tend to the center of public opinion rather than dozens of smaller
political parties catering to divergent and sometimes extremist views. In other words, such a system forces
political coalitions to occur within the political parties rather than within the government.
B. THE WINNER-TAKE-ALL FEATURE OF THE ELECTORAL COLLEGE PROMOTES THE DOMINANCE OF
TWO POLITICAL PARTIES.
League of Women Voters of Fairfax, Virginia, ELECTING THE PRESIDENT, Oct. 1992, 8.
Proponents further argue that the Electoral College contributes to the political stability of the nation by
encouraging a two-party system. This is true simply because it is extremely difficult for a new or minor
party to win enough popular votes in enough states to have a chance of winning the presidency. Even if
they won enough electoral votes to force the decision into the U.S. House of Representatives, they would
still have to have a majority of over half the state delegations in order to elect their candidate — and in that
case, they would hardly be considered a minor party.
John Bibby (Prof., Gov't., U. Wisconsin), POLITICS, PARTIES & ELECTIONS IN AMERICA, 1987, 220.
The Electoral College system works to the advantage of the two major parties and the detriment of
minor parties. The combination of a winner-take-all system to determine the allocation of the states'
electoral votes and the requirement of a majority in the Electoral College to be elected makes it almost
impossible for third parties to win a presidential election. To win any electoral votes and have any impact
on the electoral vote, a third party candidate must have voter support that is geographically concentrated
the way George Wallace's was in the southern states in 1968 or Strom Thurmond's was in 1948. When a
third party candidate's support is more evenly spread across the country, as in the case of John Anderson
in 1980, the candidate has virtually no hope of winning any electoral votes.
James Reichley (Fellow, Brookings Inst.), THE LIFE OF THE PARTIES, 1992, 417.
Elimination of the Electoral College system as it now operates would go a long way toward destroying
the two-party system in the United States. If third or fourth parties come to hold the balance of power in
close presidential elections—as has rarely happened under the Electoral College system—non-
mainstream candidates like Jesse Jackson and Pat Robertson, and special-interest groups like NOW, will
be strongly motivated to form parties of their own that will play powerful roles in national politics.
II. THE DOMINANCE OF TWO UMBRELLA POLITICAL PARTIES BEST PROMOTES DEMOCRATIC
CONSENSUS.
A. THE DOMINANT PARTIES REPRESENT DIVERSE INTERESTS.
John Bibby (Prof., Gov't., U. WI), POLITICS, PARTIES & ELECTIONS IN AMERICA, 1987, 266.
In the United States, lines of partisan conflict tend to cross-cut social and economic cleavages in
society. The parties tend, therefore, to be broad coalitions embracing a wide variety of interests. Indeed,
both parties draw significant levels of electoral support from virtually every major socioeconomic group in
society.
 25

John Bibby (Prof., Gov't., U. WI), POLITICS, PARTIES & ELECTIONS IN AMERICA, 1987, 37.
Throughout their history, American parties have been broadly based coalitions. Both majority and
minority parties have attracted to their banners significant support from virtually every element of society,
but the core of support for the major parties has consistently differed.
B. THE DOMINANCE OF THE TWO UMBRELLA PARTIES REQUIRES COMPROMISE AMONG DIVERSE
INTERESTS.
Joy McAfee, (Staff), CUMBERLAND LAW REVIEW, 2001/2002, 655.
America is based upon a two party system that enables a central organization to carry out goals that
demand a wide range of interests and a broad spectrum of opinion due to the melting pot of ideals, morals,
and goals. The two major parties are national and are a union of the fifty states creating a coalition of
county and local party organizations. Without a two-party competition, it would almost be impossible to win
a true sizable plurality of at least forty percent. Compromises and concessions would vanish, and a
candidate could represent all fifty states by winning the vote with a minimal plurality. True representation
would cease to exist because it would not be needed to win. Instead, a minority party could represent a
select group with large numbers and disregard the many important compromises needed to gain these
votes under a two party system.
C. THE DOMINANT PARTIES MUST ADAPT TO THE POPULAR WILL.
John Bibby (Prof., Gov't., U. Wisconsin), POLITICS, PARTIES & ELECTIONS IN AMERICA, 1987, 11.
Additionally, parties can contribute to citizen control of government because they are forced to
advocate policies that will retain the support of their traditional constituencies, while at the same time
seeking additional votes among the unaffiliated or the disaffected members of the opposition party. The'
very uncertainty of electoral outcomes works against parties becoming excessively complacent because
retention of office requires a constant reassessment of public sentiments. As a result, parties and
candidates spend millions of dollars in both election and nonelection years on public opinion surveys of
voter sentiments.
III. MAINTAINING A TWO PARTY SYSTEM IS OPTIMAL.
A. THE TWO PARTY SYSTEM IS A DEFINING CHARACTERISTIC OF THE AMERICAN POLITICAL SYSTEM.
Spencer Christian (Journalist), ELECTING OUR GOVERNMENT, 1996, 68.
The two-party system is a rarity in global politics—only five other countries (Australia, Austria, Great
Britain, Canada, and New Zealand) also have two major political parties. But the two-party system is so
much a part of American government that it almost seems as if someone deliberately designed it.
B. AMERICANS ARE OVERWHELMINGLY COMMITTED TO THE CURRENT AMERICAN POLITICAL
SYSTEM.
William Flanigan (Prof., Gov't., U. MN), POLITICAL BEHAVIOR OF THE AMERICAN ELECTORATE, 1994,
8.
Overall, Americans are proud of their country and their democratic form of government. This translates
into high levels of political system support. Eighty-five percent of the respondents to a national survey
believe that whatever its faults, the United States still has the best system of government in the world.
Over half of the public would not change anything' in the American political system.
C. AMERICANS OVERWHELMINGLY ASSOCIATE THE TWO PARTY SYSTEM WITH AMERICAN
DEMOCRATIC IDEALS.
William Flanigan (Prof., Gov't., U. Minnesota), POL. BEHAVIOR OF THE AMERICAN ELECTORATE, 1994,
50-51.
For more than one hundred years the U.S. electorate has supported a two-party system in national
politics. This remarkable stability is unknown in other democracies.