SMU Law Review


We live in troubled times, with competing political camps acting like opposing tribes. We live in separate enclaves, get our information from separate sources, and remain inside our own information bubbles. We should bear these divisions in mind as we discuss possible changes to our system of electing the President. The year 2020 began with a presidential impeachment trial, featured at its midpoint a Supreme Court decision holding that a state may require its presidential electors to vote in accordance with that state’s popular vote, and will end with a presidential election. Many think that we should scrap electors and use a national popular vote. One proposed method is the National Popular Vote Compact. The idea is to guarantee that the winner of the national popular vote would win the electoral vote: states joining the Compact agree that once jurisdictions with a majority of the electoral votes join the Compact, they will cast their electoral votes for the national popular vote winner. This Article argues that, in today’s hyper-partisan political culture, a presidential election using a national popular vote—particularly the National Popular Vote Compact—invites disaster. A simplified version of a proposal by Lawrence Lessig, however, would be a significant improvement of our current system and would not run the risks posed by a national popular vote. Replacing the winner-take-all allocation with proportional allocation of electors in each state eliminates the worst feature of our current electoral college system and makes many more voters relevant in a presidential election. It also preserves state control over elections, making it harder for would-be authoritarians to entrench themselves.

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