March 9, 2006

Provocative proposals for presidential election reform catching fire

By Pat Vaughan Tremmel

Robert Bennett, Nathaniel L. Nathanson Professor of Law and a close observer of the fireworks that ensued over the 2000 presidential election, came up with a provocative approach back then that would circumvent the Electoral College to elect the president according to the nationwide popular vote.

A similar idea is catching fire today. Presented at a Northwestern University conference in 2001, Bennett’s basic idea is that individual states could award all their electors to the winner of the nationwide popular vote — instead of to the winner of the statewide vote, as most states do now.  The winner of the nationwide vote would then become president without a constitutional amendment — bypassing that huge hurdle. 

In the meantime, a variation of that idea has become the centerpiece of a new book released at a recent press conference. The book’s five authors enlisted Birch Bayh, the former U.S. senator from Indiana, as well as a bipartisan group with political connections in support of the idea. Under consideration by several sections of the American Bar Association, the proposal featured in that book calls for an agreement among states holding 270 electoral votes (the majority of Electoral College votes that is required to win the presidency) to award their votes to the winner of the nationwide popular vote. 

But Bennett’s original idea would not necessarily have required states with a majority of the Electoral College votes to sign on.

“I continue to think that a group with, say, 125 electoral votes might be easier to achieve, less likely to invite a court challenge by non-participating states, and move the nation decisively toward an effective nationwide vote,” he says.

Bennett, a constitutional scholar, wrote an article based on the 2001 conference that was published later that year. Variations on the same theme also are presented in his forthcoming book “Taming the Electoral College.”

“The assumption that a constitutional amendment would be required for any serious Electoral College reform has shortchanged public discussion of the issue,” Bennett says.