Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College

257 Pages·2020·2.842 MB·English

by  Edward B. Foley

PRESIDENTIAL ELECTIONS
AND MAJORITY RULE

P
R ESIDENTI A L
E
LECTIONS A ND
M R
AJOR IT Y ULE

THE RISE, DEMISE, AND POTENTIAL
RESTORATION OF THE JEFFERSONIAN
ELECTORAL COLLEGE
EDWARD B. FOLEY
1
1
Oxford University Press is a department of the University of Oxford. It furthers
the University’s objective of excellence in research, scholarship, and education
by publishing worldwide. Oxford is a registered trade mark of Oxford University
Press in the UK and certain other countries.
Published in the United States of America by Oxford University Press
198 Madison Avenue, New York, NY 10016, United States of America.
© Oxford University Press 2020
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by license, or under terms agreed with the appropriate reproduction
rights organization. Inquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above.
You must not circulate this work in any other form
and you must impose this same condition on any acquirer.
Library of Congress Cataloging- in- Publication Data
Names: Foley, Edward B., author.
Title: Presidential elections and majority rule : the rise, demise, and
potential restoration of the Jeffersonian electoral college / Edward B. Foley.
Description: New York, NY : Oxford University Press, 2020.
Identifiers: LCCN 2019015756 | ISBN 9780190060152 (hardback) |
ISBN 9780190060169 (updf) | ISBN 9780190060176 (epub)
Subjects: LCSH: Presidents— United States— Elections. | Election law— United
States. | Electoral college— United States. | BISAC: LAW / Legal History. | HISTORY /
Americas (North, Central, South, West Indies). |
POLITICAL SCIENCE / Government / Comparative.
Classification: LCC KF4910 .F65 2020 | DDC 324.6/ 3— dc23
LC record available at https:// lccn.loc.gov/ 2019015756
1 3 5 7 9 8 6 4 2
Printed by Sheridan Books, Inc., United States of America
For Max and Robbie,
with love and admiration,
and in hope for their future

Contents

Preface ix
Introduction 1
The Problem 2
The Project 6
Part One. The Rise of the Jeffersonian Electoral
College
1. The Electoral College of 1787 11
2. The First Four Elections 16
The Very First Election 16
Washington’s Re- Election in 1792 19
The Partisan Contest of 1796 21
The Debacle of 1800 23
3. The Electoral College of 1803 27
The Circumstances of the Debate 28
The House Initiates Deliberations 34
The Senate Takes Up the Topic 37
Back in the House 42
vii
viii Contents
Part Two. The Demise of the Jeffersonian Electoral
College
4. The Jeffersonian Electoral College in the Nineteenth Century 49
From Jefferson to Jackson 55
The Jacksonian Move to Plurality Winner- Take- All 61
The First Failure of the Jeffersonian Electoral College 69
Lincoln, Grant, and the Reconstruction of the Electoral College 78
The Second Failure of the Jeffersonian Electoral College 83
5. The Jeffersonian Electoral College in the Twentieth Century 89
The Bull Moose Election 90
The Return to Two- Party Normalcy 97
Ross Perot, Ralph Nader, and the Renewed Third- Party Problem 104
6. The Jeffersonian Electoral College in the Twenty- First Century 110
Part Three. The Potential Restoration of the
Jeffersonian Electoral College
7. A Recommitment to Majority Rule 121
Multiple Ways to Comply with Majority Rule 122
An Alternative Two- Round System 124
Instant Runoff Voting 126
Proportional Allocation and Conditional Winner- Take- All 131
Jeffersonian Federalism and the Virtue of Variety 133
8. An Exploration of Alternatives 135
The Practical Impossibility of a Constitutional Amendment 135
The National Popular Vote Multistate Compact Plan 139
Keep Plurality Winner- Take- All? 146
Litigation to Eliminate Plurality Winner- Take- All? 153
9. A Feasible Reform 155
The Significance of State- by- State Reform 156
Mobilizing Popular Opinion to Achieve State- by- State Reform 160
The Constitutionality of Ballot Initiatives as Reform Method 162
Conclusion 169
Notes 179
Index 227
PrefaCe

This book originated in the classroom. The second unit of the
Election Law course, as I teach it, concerns how candidates get on
the ballot and the relationship between primary and general elections.
Over the last decade or so, as part of our discussion of this topic, my
students and I have focused on presidential elections and whether
America’s existing system for winnowing the field of many contenders,
before the primaries begin, to a single winner in November is a sen-
sible process. Because a couple of the court cases we read concern inde-
pendent presidential candidates, like John Anderson in 1980 and Ralph
Nader in 2000, who have sought the right to be on the general elec-
tion ballot in November after the party primaries have reduced the
field to two major- party nominees, we have considered especially what
should be the relationship between the initial narrowing of the primary
process and the subsequent addition of third- party and independent
candidates. Does America, we ask, use a rational method for choosing
its commander- in- chief?
Increasingly concerned that the answer to this question is “no,” and
in anticipation of the 2016 election before it began, I took my interest
in this topic out of the classroom and into the library. Fortunate to
be invited to a symposium on the law of presidential elections, held
at Fordham Law School, I explored methods for managing the role
ix