[EL] Constitutionality of "advisory vote" for POTUS

[Gardner, James]

Judicial recognition of a popular right to vote for president based on long practice would as a practical matter sink any chance to open the conversation we ought to have, which concerns a constitutional amendment to eliminate the Electoral College entirely, and what ought to replace it.  In these circumstances, at least, I have to agree with the second Justice Harlan, who used to complain bitterly, often in dissents in election law cases, about the Court’s willingness to judicially correct aspects of the constitutional scheme that had become unpopular, or even intolerable.  It made us unwilling, he complained, to confront and resolve difficult problems ourselves (or through our representatives).

Jim

___________________________
James A. Gardner
Bridget and Thomas Black SUNY Distinguished Professor of Law
Research Professor of Political Science
University at Buffalo School of Law
The State University of New York
Room 514, O'Brian Hall
Buffalo, NY 14260-1100
voice: 716-645-3607
fax: 716-645-2064
e-mail: jgard at buffalo.edu<mailto:jgard at buffalo.edu>
www.law.buffalo.edu<http://www.law.buffalo.edu/>
Papers at http://ssrn.com/author=40126



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