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Friday, October 19, 2012

Swing Staters Have All the Fun

As we march forward towards election day I must admit I'm starting to have a bit of "swing state" envy.  I mean, let's face it, it's not as if you East Coasters will tuck in the kiddies and stay up all night, biting your nails until the California results are in.  Everyone knows how our story ends.  Besides reducing polling costs, the certitude of the California vote means that presidential candidates only need visit us in Los Angeles to make a withdrawal at "Bank Hollywood"--and that makes me a bit cranky and, yes, jealous of you in electorally glamorous states like Ohio et al. 

Admittedly, the only election law nuances that I know are that (i) the "swing state" phenomena is a consequence of our Electoral College system and (ii) most states, including California, cast their electoral votes in "all or nothing" fashion, rendering the minority vote irrelevant to the national result.  I also know that not all are fans of the Electoral College and a recent proposal, called the National Popular Vote, would basically abolish it and turn presidential elections into a single national election.  A number of states (California included, of course) have signed on.

That pretty much exhausts my knowledge of election law.  Fortunately, my colleague, Derek Muller, knows much more.  Derek has written a fascinating piece titled Invisible Federalism and the Electoral College that will be coming out soon in the Arizona State Law Journal.  In his article, Derek argues that proponents of the National Popular Vote undervalue the importance of the Electoral College's support of "invisible federalism" principles.  Derek sets forth a strong argument that election law should be left to the mandate of individual states and that state-run elections should continue to operate intra-state, rather than be dumped into a national bucket of votes.  For instance, felons can vote in some states but don't have a right to vote in others.  In that regard (paraphased through my own naive lens of the subject), the Electoral College may not help California get noticed by candidates, but it may better support Federalist ideals if we continue to let states decide issues like voter eligiblity rather than homogenize the process in a national vote.  Hmm, felon voting--not sure that would change the California results either.  So for now, it looks like you on the East Coast can still get your beauty sleep and I'll still be cranky.

Posted by Babette Boliek on October 19, 2012 at 10:13 AM in Article Spotlight, Law and Politics | Permalink


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I have to take back one comment I made, about the House of Representatives. I did some further reading and saw that the House votes by state delegations, so there goes that argument.

Posted by: Jonathan | Oct 23, 2012 10:17:48 AM

I'm very excited to see my college friend Norman comment on a post by my law school friend Babette, but I take issue with both of you. The electoral college may further federalism but only in an empty, formalistic sense. Yes, yes, we all know that the Constitution was a compact between states, not "the people," yadda, yadda, yadda. But two points are in order here. First, the Constitution throws an electoral college tie into the House of Representatives, which is the body that was in the framers' conception representative of the people, rather than the states. One must ask why a tie was not thrown to the Senate, which was the representative of the states, if the Electoral College really implies that the president is meant to be elected by the people acting through the states rather than by the people directly.

Second, federalism is hardly served by a system that, in effect, raises the importance of one or two states above all others in electing the president, particularly when those states are small ones. It is destabilizing to the body politic to have the largest states (with the exception of Florida), essentially be irrelevant to the election for the most important office in the country -- and particularly when the election is most important, i.e., when it is a closely contested one and the direction of the country will turn on the outcome.

Finally, the electoral college increases the incentive for voter suppression and for Florida-2000-style shenanigans. In a close election, the electoral college increases the temptation to commit fraud exponentially, since a party need not corrupt the integrity of the entire election, but only the integrity of the election in a couple of swing counties in a swing state. Again, federalism does not seem to be served if the electoral college means that the votes of a majority of the population in the majority of the states can be nullified by the flipping of one state from one column to the other through unsavory practices.

Posted by: Jonathan | Oct 23, 2012 9:41:07 AM

Thanks, Rick!

Norman, I did indeed see your piece, and I cite to it a few times (with one particularly lengthy qualification of one of your points).

Bill, the point is that NPV doesn't address the issue that, perhaps, a nationalized set of voter qualifications is important--and this piece addresses the theoretical and practical problems by failing to address that issue, and why, perhaps, it may be preferred to keep our system rather than either an NPV or a truly nationally-run election with a one-size-fits-all set of qualifications.

Posted by: Derek T. Muller | Oct 19, 2012 4:33:31 PM

What does the electoral college have to do with Voter ID or felon voting laws? Do the NPV people expect their proposal to lead to standardization of procedure nationwide? They seem like completely separate things, but perhaps I'm missing something.

Posted by: Bill | Oct 19, 2012 1:37:59 PM

Have Derek check out my article, "Reforming the Electoral College: Federalism, Majoritarianism, and the Perils of Subconstitutional Change" published last year in the Georgetown Law Journal (100 Geo. L. J. 173). I make those same points. And, while you're right that voters in swing states get disproportionate attention now, moving to a purely majoritarian process would still lead campaigns to exclude some states (less populated ones without major cities) and focus on others (populous ones and those with urban centers). The notion that presidential candidates will ever conduct 50-state campaigns is a naive one, I think.

Posted by: Norman Williams | Oct 19, 2012 12:04:20 PM

Great work, Derek!

Posted by: Rick Garnett | Oct 19, 2012 10:50:34 AM

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