22. POPULAR ELECTION OF THE PRESIDENT WITHOUT A CONSTITUTIONAL AMENDMENT

Abstract

n the wake of the 2000 presidential election, it is certain that there will be debate about whether a nationwide popular vote should be substituted for the electoral college mechanism for choosing the President. But that debate may be stiOed to a degree because of the widespread assumption that constitutional amendment is the only way to eOect this change.1 Amendment of the United States Constitution basically requires the agreement of two-thirds of each house of Congress and three-fourths of the states. For a variety of reasons, those hurdles are likely to prove insuperable, at least initially. But in fact a constitutional amendment may not be necessary. For it is entirely possible that just a few states – conceivably just one or two – could bring about de facto direct election. And if that were to occur, opposition to a constitutional amendment might just melt away. Each state’s electoral college delegation is equal to its total representation in the House and Senate, with the District of Columbia given the state minimum of three electoral college votes by the Twenty-third Amendment. It is usually assumed that this apportionment favors the less populous states by virtue of the two electors that each state receives on account of its Senators. This assumption is, however, questionable. All states but two (Maine and Nebraska) have adopted a winner-take-all system for selecting their electors. In those 48 states, no matter how close the statewide popular vote among presidential candidates, the entire electoral college delegation goes to the winner. A voter in a populous state thus helps determine more electoral college votes than a voter in a less populous state. The net result of the two-elector “bonus” for less populous states and the winner-take-all rule is that voters in the states with very large delegations cast a mathematically weightier vote than do