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Wisconsin Law Review Online





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Every four years, the cry goes up to destroy the Electoral College, especially when a candidate is elected president who receives a minority of the popular vote. The criers ignore the benefits of the Electoral College but see its flaws in part because it now functions as a regional filter on the popular vote. The College really should function nearer to its original design. Restoring elector independence would reduce the power of the political parties and renew the Constitutional commitment to an informed electorate.

Delegates to the Constitutional Convention in Philadelphia intended the Electoral College to balance the interests of both small and large states and to give the chief executive independence from Congress. Most of all the College insured the president should be selected by highly informed voters, who represent the diverse interests of the various states.

The Electoral College provides a constitutional check on democratic error, a mistake made by the polity even in its most solemn electoral task. Additionally, electoral voting requires a successful candidate for the presidency to carry the vote in at least two regions of the nation. More, the Electoral College places individuals with judgment and discretion in a position to exercise those talents. In some circumstances, the elector must have the discretion to choose a nominee as that elector understands “the best” or to reject a nominee if that elector understand the nominee to be unfit. No state or other government should thwart such independence among electors, and attempts to do so should be rejected by the courts.

Such an approach to presidential elections has the benefit of hewing more closely to the original intent of Article II. Yet its more compelling rationale is that this republican system protects the democratic process from unfit candidates whose masks slip before the election is final. Interestingly, this approach is compatible with the law as it is written in the text of the Constitution, federal statutes, and precedents of the Supreme Court. The Electoral College should be retained.

Recommended Citation

Stephen M. Sheppard, A Case for the Electoral College and for its Faithless Elector, 2015 Wɪsc. L. Rᴇᴠ. Oɴʟɪɴᴇ 1 (2015).