[EL] National Popular Vote Passes Crucial Milestone

[Lowenstein, Daniel]

       The assertion that the electors serving as "pledged delegates" is a departure from what the Constitution contemplates is pervasive in discussions of the electoral college, but I believe it is mistaken.

        Preliminarily, Mr. Fishkin speaks imprecisely when he suggests the electoral college was ever intended to be a deliberative body.  The Constitution calls for the electors to meet separately in each state precisely to prevent them from deliberating as a group.  The term "electoral college" is a misnomer, though one too entrenched for objection.

         However, Mr. Fishkin is correct that the contemplation in 1787-88 was that the electors would deliberate within their states, not that they would be pledged to particular candidates in advance.  However, 1787-88 is not the last constitutional word on the subject.  The Twelfth Amendment, adopted after the constitutional crisis provoked by the 1800 election, did contemplate a system of pledged electors.  Those responsible for the 12th Amendment may not have particularly liked pledged electors, but they understood that pledged electors were likely at least for the then foreseeable future and they enacted the amendment to make the system of pledged electors work well.

             Best,

             Daniel H. Lowenstein
             Director, Center for the Liberal Arts and Free Institutions (CLAFI)
             UCLA Law School
             405 Hilgard
             Los Angeles, California 90095-1476
             310-825-5148


________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Joey Fishkin [joey.fishkin at gmail.com]
Sent: Friday, June 10, 2011 3:44 PM
To: law-election at uci.edu
Subject: Re: [EL] National Popular Vote Passes Crucial Milestone

Fascinating discussion.

One question raised earlier was: Would the NPV proposal alter a "structural" feature of our constitutional order?

Formally no.  Functionally yes.  (That's why some of the answers above were talking past one another a bit.)  The functional perspective seems to me the more useful one: Yes, NPV would alter a structural feature of our current democratic order.  But if we are going with function and substance as opposed to form, then we must also acknowledge that the Electoral College is a feature of our system that has already changed repeatedly throughout our history, without Article V Amendments -- beginning, obviously, with the electoral college becoming a group of pledged delegates rather than a deliberative body.  To defend the electoral college as it exists today is to defend a durable, but non-textual, non-Article-V feature of our present democratic structure.  That's perfectly legitimate; some of the most important features of our democratic structure, including political parties, have no textual basis.  We have a constitutional order that consists of more layers than just the written constitution; some key elements, such as political parties and the current workings of the electoral college, come from some of those other layers.  I think it's worth being clear that that's what we're debating whether to change.


Joey

Joseph Fishkin
Assistant Professor
University of Texas School of Law
727 E. Dean Keeton St., Austin, TX 78705
jfishkin at law.utexas.edu<mailto:jfishkin at law.utexas.edu>