END NOTES
1. Arthur Schlesinger Jr., “How to democratize American Democracy,” in A Badly Flawed Election, ed. Ronald Dworkin (The New Press, 2002), 216.
2. Papers of Alexander Hamilton, ed. Harold Syrett (Columbia University Press, 1962), vol. 5, 248 (letter to James Wilson, January 25, 1789).
3. Adams Family Correspondence, eds. L.H. Butterfield et al., (Harvard University Press, 1963), vol. 11, 122 (letter from John Adams to Abigail Adams, January 5, 1796).
4. Tadahisa Kuroda, The Origins of the Twelfth Amendment (Greenwood Press, 1994), 71 (letter to Rufus King, February 15, 1787).
5. See Gordon Wood, Friends Divided: John Adams and Thomas Jefferson (Penguin, 2017), 279–319. Tellingly, in his book about the Jefferson-Adams relationship, Wood, the preeminent historian of the founding, titled his chapter on the Adams-Jefferson administration “The President vs. the Vice President.”
6. Akhil Amar, America’s Constitution: A Biography (Random House, 2005), 339.
7. The Federalist Papers, ed. Clinton Rossiter (New American Library, 1961), 412.
8. Memoirs of John Quincy Adams, ed. Charles Francis Adams (J.B. Lippincott, 1875), vol. 6, 95–96.
9. Don C. Seitz, The “Also Rans”: Men Who Missed the Presidency (Thomas Crowell, 1928), 43.
10. Memoirs of John Quincy Adams, vol. 5, 361.
11. Ibid., vol. 6, 114.
12. James Hopkins, “Election of 1824” in History of American Presidential Elections, 1789-1968, ed. Arthur Schlesinger Jr. (Chelsea House, 1971), 360.
13. Ibid., 363.
14. Quoted in Donald Ratcliffe, The One-Party Presidential Contest (University Press of Kansas, 2015), 155.
15. The Papers of Henry Clay, ed. James Hopkins (University of Kentucky Press, 1963), vol. 3, 887 (letter to Francis T. Brooke, November 26, 1824).
16. Letter to George Hay, August 17, 1823, quoted in David K. Watson, The Constitution of the United States: Its History, Application and Construction (Callaghan & Co., 1910), vol. 2, 1579.
17. Hopkins, “Election of 1824,” 377.
18. Private Correspondence of Henry Clay (Calvin Colton ed., A.S. Barnes & Co., 1856), vol. 4, 109-110 (letter to Francis Preston Blair, January 8, 1825).
19. The Papers of Henry Clay, vol. 3, 901 (letter to Benjamin Leigh, December 22, 1824).
20. Ibid., 895 (letter to James Erwin, December 13, 1824).
21. Ibid., vol. 4, 10 (letter to Francis Preston Blair, January 8, 1825).
22. Ibid., vol. 3, 906 (letter to George McClure, December 28, 1884).
23. Ibid., vol. 4, 39 (letter to James Brown, January 23, 1825) (emphasis in original.
24. The Papers of Andrew Jackson, eds. Sam Smith et al. (University of Tennessee Press, 1980), vol. 5, 121 (letter to James Gadsden, December 6, 1821).
25. The Papers of Henry Clay, vol. 4, 110 (letter to Francis Preston Blair, January 8, 1825).
26. Ibid., 10 (letter to Francis Preston Blair, January 8, 1825).
27. Memoirs of John Quincy Adams, vol. 6, 464–65.
28. Ibid., 465.
29. Calvin Colton, The Life and Times of Henry Clay (A.S. Barnes, 1846) , 385 (letter to Francis T. Brooke, January 28, 1825).
30. Memoirs of John Quincy Adams, vol. 6, 483.
31. The Papers of Henry Clay, vol. 3, 47 (letter to Francis Preston Blair, January 29, 1825).
32. Memoirs of John Quincy Adams, vol. 6, 484.
33. Ibid., 471.
34. Ibid., 491.
35. Ibid., 83.
36. Ibid., 447 (emphasis in original).
37. Ibid., 474.
38. The Papers of Henry Clay, vol. 4, 55 (February 4, 1825, letter to Francis T. Brooke).
39. Memoirs of John Quincy Adams, vol. 6, 496.
40. Andrew Jackson papers, eds. Harold Moser & Clint Cliff (University of Tennessee Press, 2002) vol. 6, 29–30 (letter to William B. Lewis, February 14, 1824).
41. Memoirs of John Quincy Adams, vol. 6, 26.
42. Ibid., 114.
43. Ibid., vol. 6, 501.
44. Ibid.
45. Ibid., 505.
46. Ibid., 506.
47. Ibid., 507.
48. Ibid., 508.
49. Ibid., 508.
50. Ibid., 514.
51. The Papers of Henry Clay, vol. 4, 73 (letter to Francis T. Brooke, February 18, 1825).
52. Ibid., 47 (letter to Francis Preston Blair, January 29, 1825).
53. The Papers of Henry Clay, vol. 3, 906 (letter to George McClure, December 28, 1824).
54. A caveat must be attached. The Constitution allows each state to determine the method by which its electors are chosen. Today, of course, all states do so by a popular election open to all eligible voters. In 1824, however, only 18 of the 24 states did so. Jackson’s overall “landslide” numbers are based on the tallies from those states. In six states, however, the electors were chosen by the state legislature. That includes New York, a populous state where Adams was allegedly favored by most voters. Had New York and the other five states held popular elections, Adams’s overall vote total might have approached or even exceeded Jackson’s. See Michael J. Korzi, “‘If the Manner of It Be Not Perfect’: Thinking Through Electoral College Reform,” in Electoral College Reform: Challenges and Possibilities, ed. Gary Bugh (Routledge, 2010), 48 n. 19 (arguing that we can’t really say who won the popular vote in 1824).
55. Memoirs of John Quincy Adams, vol. 6, 496.
56. David Jordan, Roscoe Conkling of New York: Voice in the Senate (Cornell University Press, 1972), 421.
57. The incident is recounted in David Saville Muzzey, James G. Blaine: A Political Idol of Other Days (Kennikat Press, 1963), 99–100.
58. Letter to R.B. Buckland, June 14, 1876, quoted in Keith Polakoff, The Politics of Inertia: The Election of 1876 and the End of Reconstruction (Louisiana State University Press, 1973), 56.
59. Ibid., 67 (letter to Carl M. Gaskell, June 14, 1876).
60. Hans L. Trefousse, The American Presidents Series: Rutherford B. Hayes: The 19th President (Holt, 2002), 68.
61. Chicago Daily News, November 8, 1876.
62. For a collection of such declarations, see Roy Morris Jr., Fraud of the Century (Simon and Schuster, 2003), 164.
63. Michael Holt, By One Vote: The Disputed Presidential Election of 1876 (University Press of Kansas, 2008), 180.
64. Norman J. Ornstein, “Three Disputed elections,” in After the People Vote: A Guide to the Electoral College, ed.Walter Bernstein (AEI Press, 1992), 41.
65. H.R. Misc. Doc. No 45-31, at 1363 (1878).
66. For specifics, and a detailed analysis, see Edward Foley, Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press, 2016), 120–123.
67. At least one historian reported the rumors as fact. See Polakoff, The Politics of Inertia, 213.
68. William H. Rehnquist, Centennial Crisis (Knopf, 2002), 112.
69. Paul Haworth, The Hayes-Tilden Election (Bobbs Merrill, 1906), 200.
70. Milton Harlow Northrup, “The Inner History of the Origin and Formation of the Electoral Commission of 1877,” XL Century (1901), 927.
71. For example, on January 24, Hayes’s political ally, William Henry Smith, wrote to Hayes, “Davis elected to the Senate by Democratic votes would feel under obligation, as the fifth judge, to give the Presidency to Tilden.” Lally Weymouth & Milton Glazer, America in 1876 (Random House, 1976), 35. There is some evidence that Tilden’s adventurous nephew, William T. Pelton (but not Tilden himself), played a role in securing Davis the senate seat. See Holt, By One Vote, 220.
72. Hewitt, “Secret History of the Disputed Election, 1876–77,” in Selected Writings of Abram S. Hewitt, ed. Allan Nevins (Kennikat, 1965), 171.
73. New York Sun, January 1, 1877.
74. Quoted in Holt, By One Vote, 224.
75. Willard King, Lincoln’s Manager, David Davis (Harvard University Press, 1960), 293 n. 23.
76. Charles Fairman, History of the Supreme Court (Macmillan, 1988), vol. 7, 132.
77. New York Sun, July 6, 1877.
78. Quoted in Morris, Fraud of the Century, 241.
79. For a balanced evaluation of the evidence concluding that the charges were likely false, see Rehnquist, Centennial Crisis, 187–200.
80. Reproduced in full in Holt, By One Vote, 263–64.
81. James Ford Rhodes, History of the United States (Norwood Press, 1906), vol. 7, 243.
82. Ibid., 264.
83. Quoted in Morris, Fraud of the Century, 174.
84. 17 Congressional Record 815 (1886).
85. Foley, Ballot Battles, 118.
86. It is unclear to what extent voter suppression took place. The U.S. Civil Rights Commission produced a report about the election, and “concluded that Florida’s election was marred by ‘significant and distressing barriers’ put in the way of African Americans who were attempting to vote.” Michael A Genovese, “This is Guatemala,” in Counting Votes, ed. Robert Watson (University Press of Florida, 2004), 253. Jeffrey Toobin claims there is “no credible evidence of an organized attempt to discourage African-Americans from going to the polls” but notes that “a purge of the voting lists presents a more complex story” in Too Close to Call (Random House, 2002), 169. He is referring to a 1998 law aimed at removing ineligible voters from the voting list. Toobin acknowledges that mistakes in the program disproportionately affected African American voters, but says that the widespread claim that sloppy enforcement of the 1998 law disenfranchised thousands of black voters is baseless. It is more difficult to refute—or verify—Lani Guinier’s contention that “antiquated voting technology, lack of trained clerks, and confusing instructions in many counties adversely affected black voters’ ability to cast a ‘legal vote.’” Guinier, “And to the C Students, the Lessons of Bush v. Gore,” in A Badly Flawed Election, 237.
87. Toobin, Too Close to Call, 66.
88. McDermott v. Harris, 2000 WL 1693713 (Fl. Cir. Ct. Nov. 14, 2000).
89. Charley Wells, Inside Bush v. Gore (University Press of Florida, 2013).
90. Ibid., 87.
91. Ibid., 91.
92. Alan Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (Oxford University Press, 2001), 37.
93. Gore v. Harris, 773 So. 2d 524 (Fla. 2000).
94. 773 So. 2d 524 (Wells, C.J., dissenting).
95. See Ronald Dworkin, “The Phantom Toll Booth,” in A Badly Flawed Election, ed. Dworkin (The New Press, 2002), 66. (Several states use the “intent of the voter” standard for recounts, “and the Supreme Court has now declared that they have all been acting—no doubt for many decades—unconstitutionally.”)
96. Bush v. Gore, 531 U.S. 98, 109 (2000).
97. I hedge simply out of caution, but constitutional scholar Erwin Chemerinsky asserts that, when it comes to denying its own decision any precedential value, “Bush v. Gore is a first. I don’t believe any prior Supreme Court has done something like this before.” Quoted in Vincent Bugliosi, The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President (Thunder’s Mouth Press, 2001), 113.
98. See, e.g., Richard Epstein, “‘In such Manner as the Legislature may Direct’: The Outcome in Bush v. Gore Defended,” in The Vote, eds. Cass Sunstein & Richard Epstein (University of Chicago Press, 2001), 14. (“Any equal protection challenge to the Florida Recount Procedure quickly runs into insurmountable difficulties”). By contrast, Epstein believes that the Article II argument, adopted by only three Justices, was sound.
99. Bush v. Gore, 531 U.S. at 146 (Breyer, J., dissenting).
100. Michael W. McConnell, “Two and a Half Cheers for Bush v. Gore,” in The Vote, 118 (“I do not find that explanation very persuasive”). As Professor Frank Michelman put it, “No legal deadline posed a need for federal judges thus to preclude Florida’s high court from speaking for itself on this matter.” “Suspicion or the New Prince,” in The Vote, 128 n. 12.
101. Yale Law Professor Jed Rubenfeld captured the perversity perfectly. To whom had the Court deferred about the safe harbor? “That’s right: The Florida Supreme Court, that august authority to which the United States Supreme Court refused to defer on virtually any other point of law in the entire controversy. . . . But on the dispositive, count-ending, election-determining issue of the December 12 deadline, the majority’s hands were regrettably tied by their respectful regard for the Florida Justices’ unquestionable power to declare that date to be the deadline under Florida law. Unfortunately, there was one more little problem. The Florida justices had not declared December 12 to be the deadline.” Jed Rubenfeld, “Not as Bad as Plessy, Worse,” in Bush v. Gore: The Question of Legitimacy, ed. Bruce Ackerman (Yale University Press, 2002), 23.
102. Bush v. Gore, 531 U.S., at 111.
103. Ibid., at (Scalia, J., concurring)
104. Ibid., at (Stevens, J., dissenting). As Professor David Strauss put it, “It is true that the failure to grant a stay might have inflicted political damage on a Bush presidency; but granting a stay might have wholly deprived Vice President Gore of the presidency.” “Bush v. Gore: What were they Thinking?” in The Vote, 190.
105. Justice Ginsburg indicated that electoral votes could be submitted as late as January 6, but that appears doubtful under federal law. The Constitution stipulates that electors must meet to give their votes on a day that must be “the same throughout the United States,” and in 2000, that date was December 18.
106. John Allen Paulos, “We’re Measuring Bacteria with a Yardstick,” New York Times, November 22, 2000.
107. Wells, Inside Bush v. Gore, 123. Judge Richard Posner endorsed the Supreme Court’s intervention on this ground. See “Florida 2000: A Legal and Statistical Analysis of the Election Deadlock and the Ensuing Litigation,” 2000 Supreme Court Review 1, 45 (“I cannot see the case for precipitating a political and constitutional crisis merely in order to fuss with a statistical tie that cannot be untied”).
108. For a shrewd critique of the consortium’s findings, see Foley, Ballot Battles, 283-84.
109. In separate lawsuits alleging such unequal treatment in different counties, Judge Terry Lewis and Judge Nikki Clark both found some improper actions but no available remedy. Jacobs v. Seminole County Canvassing Board, 773 So. 2d 519 (Fla. 2000); Taylor v. Martin County Canvassing Board, 773 So. 2d 517 (Fla. 2000).
110. T.S. Eliot, Murder in the Cathedral (Harcourt Brace, 1935), 44.
111. As one election law expert says, “The Florida mess should have convinced both Democrats and Republicans that there is something wrong with having partisan election officials making discretionary decisions that could affect the outcome of a presidential election.” Richard Hasen, “Beyond the Margin of Litigation: Reforming Election Administration to Avoid Electoral Meltdown,” 62 Washington & Lee Law Review 937, 978 (2005).
112. Bush v. Gore, 531 U.S. at 111.
113. Those taking this position included respected conservative and liberal legal scholars alike. See, e.g., Steven Calabresi, “A Political Question,” in Bush v. Gore: The Question of Legitimacy, 129-44; Erwin Chemerinsky, “Bush v. Gore was not Justiciable,” 76 Notre Dame Law Review 1093 (2001).
114. As Professor Frank Michelman observed, “senators and representatives caring to retain their offices would have had to face the judgments of voters on their manner of settling the election. In the circumstances of this case, that is a tremendous advantage of institutional competency or fitness.” Michelman, “Suspicion or the New Prince,” in The Vote, 133.
115. Jeffrey Rosen, “The Supreme Court Commits Suicide,” The New Republic, December 12, 2000.
116. 531 U.S. at 128-29 (Stevens, J., dissenting).
117. During the debate over the Electoral Count Act, passed a decade after the 1876 election, Congress considered empowering the Supreme Court to resolve future disputes. With the recollection fresh of the vilification of Justice Bradley for his role on the commission that resolved the ’76 election, Senator John Sherman of Ohio shrewdly remarked that the Court’s involvement “would tend to bring that court into public odium of one or the other of the two great parties.” 17 Congressional Record 818 (1886).
118. Epstein, “Afterword” in The Vote, 243.
119. “Stephen Carter, “Time Doesn’t Heal Wounds From Bush v. Gore,” The Morning Call, January 8, 2019. Similarly, Alan Dershowitz writes that, in the wake of Bush v. Gore, he spoke to dozens of successful lawyers, and “virtually every one of them, Democrat or Republican, agrees with me that the majority of the Justices in the Florida election case fail the-shoe-on-the-other-foot test.” Supreme Injustice, 171.
120. National Commission on Federal Election Reform, Final Report (2001), 60.
121. Foley, Ballot Battles, 307.
122. Ibid., 307, 308. It would not have helped that the electoral situation in Ohio was highly charged; the secretary of state was co-chair of the state’s Bush campaign committee, and distrusted by Democrats. His decisions gave rise to litigation even before Election Day, and Democrats and Republicans both fielded large teams of lawyers to the state in anticipation of a dispute. See Hasen, “Beyond the Margin of Litigation,” 62 Washington & Lee Law Review at 939–41.
123. Deb Riechmann & Russ Bynum, “Report Suggests Russia Hackers Breached Voting Software Firm; Contractor Arrested for Leaks,” Associated Press, June 5, 2017.
124. David E. Sanger and Catie Edmondson, “Russia Targeted Election Systems in All Fifty States, Report Finds,” New York Times, July 25, 2019.
125. Ibid.
126. Report of the Select Committee on Intelligence, United States Senate, On Russian Active Measures Campaigns and Interference in the 2016 U.S. Election, www.intelligence.senate.gov/sites/default/files/documents/Report_Volume1.pdf, 40.
127. Christopher Bing, “Exclusive: U.S. officials fear ransomware attack against 2020 election,” Reuters, August 26, 2019, www.reuters.com/article/us-usa-cyber-election-exclusive/exclusive-us-officials-fear-ransomware-attack-against-2020-election-idUSKCN1VG222
128. Ibid.
129. Ibid.
130. Blaze et al., “Voting Village: Report on Cyber Vulnerabilities in U.S. Election Equipment, Databases, and Infrastructure,” DEF CON 26, September 2018, 4 (2018). www.defcon.org/images/defcon25/DEF%20CON%2025%20voting%20village%20report.pdf.
131. Ibid., 5.
132. Hacking Elections Is Easy, 72 (emphasis added).
133. National Academy of Sciences, Engineering, and Medicine, Securing the Vote: Protecting American Democracy (the National Academies Press, 2018), 86–87. Malware is only one potential source of attacks on elections. See ibid. (discussing other sources of attack).
134. See Julian E. Barnes and Adam Goldman, “FBI Warns of Russian Interference in 2020 Race and Boosts Counterintelligence Operations,” New York Times, April 26, 2019.
135. See, e.g., Will Bunch, “Did Russian hackers make 2016 NC voters disappear? Why won’t we stop this for 2020?” Philadelphia Inquirer, June 20, 2019. (“U.S. election systems could be every bit as vulnerable to outside monkey business in the 2020 presidential election, because Senate Majority Leader Mitch McConnell and his GOP lawmakers are refusing to vote on critical election security bills that would provide federal dollars and support to local election systems to upgrade cybersecurity, as well as requiring paper ballots and audits that would ensure the integrity of the vote.”)
136. Ibid.
137. Patricia Mazzei, “FBI to Florida Lawmakers: ‘You Were Hacked by Russians, but Don’t Tell Voters,’” New York Times, May 16, 2019.
138. Erin Tucker & Colleen Long, “U.S. Officials Say Foreign Election Hacking Is Inevitable,” Associated Press, May 19, 2019.
139. Quoted in Steven Hendrix, The New Nicaragua, Lessons in Nation-building, Development, and Democracy for the United States (Praeger, 2009), 11.
140. Bennett, Taming the Electoral College, 187.
141. Mark Mazzetti, “Mueller Warns of Russian Sabotage and Rejects Trump’s ‘Witch Hunt’ Claims,” New York Times, July 24, 2019.
142. Tami Abdollah, “Iranian Hackers Said to Target Presidential Campaign,” Associated Press, October 4, 2019.
143. Because the 1800, 1824, and 1876 elections were ultimately resolved by backroom deals, it is worth noting that some Founding Fathers considered such shenanigans a foreseeable result of the Electoral College. See Michael T. Rogers, “‘A Mere Deception—a Mere Ignus Fatus on the People of America’: Lifting the Veil on the Electoral College,” in Electoral College Reform, 35–38.
144. Akhil Amar, “President Thurmond?” Slate, November 2, 2000.
145. As Professor Robert Bennett has observed, the risk of a tie could be greatly reduced simply by adding one member to the House of Representatives (and thus to the Electoral College) to produce an odd number. Taming the Electoral College (Stanford University Press, 2006), 182.
146. Amar, “President Thurmond?”
147. Lawrence Longley & Neal Peirce, The Electoral College Primer (Yale University Press, 1996), 135–36.
148. See, e.g., Michael Herz, “How the Electoral College Imitates the World Series,” 23 Cardozo Law Review 1191 (2002).
149. Pressed by a congressman about the World Series analogy, Professor Akhil Amar replied: “It does not matter very much who wins the World Series. So the arbitrariness of certain rules that define a game is less troubling if, in the end, the game is just a game.” “Proposals for Electoral College Reform,” Hearings on H.J. Res. 28 and H.J. Res. 43 Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 105th Cong. 78 (1997).
150. As for the framers’ esoteric ideas about the Electoral College, we need to be careful. The framers had no clear expectations for the Electoral College, the creation of which was largely motivated by the need to avoid something worse. See Rakove, “The E-College in the E-Age,” 201–34.
151. “Direct Popular Election of the President and Vice President of the United States,” Hearings on S.J. Resolution 28 Before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 96th Cong. 2-3 (1979).
152. At least to some extent, the framers saw the Electoral College as a buffer against the tendency of ordinary people to make unwise decisions based on passion, whereas electors, an elite group, were more likely to choose the president based on public-spirited reasoning. Thus, the Electoral College would minimize the likelihood of the election of a popular scoundrel or ignoramus. However, today the electors essentially rubber-stamp a decision made by the full electorate, and thus don’t serve this major role the founders imagined them playing. For a succinct summary of the various differences between the Electoral College as the founders envisioned and how it works today, see Bennett, Taming the Electoral College, 186.
153. Akhil Amar, “The Electoral College, Unfair from Day One,” New York Times, November 9, 2000.
154. George C. Edwards, Why the Electoral College Is Bad for America (Yale University Press, 2004), 107.
155. See, e.g., Garry Wills, Negro President: Jefferson and the Slave Power (Houghton Mifflin, 2003). One prominent historian who had seen things the same way recently recanted. See Sean Wilentz, “The Electoral College Was Not a Pro-Slavery Ploy,” New York Times, April 4, 2019.
156. Maine Beacon, “LePage claims national popular vote bill will silence ‘white people,’” Maine Beacon, February 28, 2019, mainebeacon.com/lepage-claims-national-popular-vote-bill-will-silence-whitepeople/.
157. The Records of the Federal Convention of 1787 (ed. Max Farrand, Yale University Press 1911), vol. 2, 57.
158. Akhil Reed Amar, “The Troubling Reason the Electoral College Exists,” Time Magazine, November 8, 2018, updated November 26, 2018.
159. See Rogers, “‘A Mere Deception,” in Electoral College Reform, 28 (“Those supporting direct popular election were a sizable faction at the [Constitutional] Convention”). Rogers also notes that there was substantial criticism of the Electoral College in the state ratifying conventions. Ibid., 30.
160. Article V of the Constitution, which sets forth the process for amending the Constitution, provides that “no state, without its consent, shall be deprived of its equal suffrage in the senate.”
161. See Bennett, Taming the Electoral College, 60 (“The electoral college introduces a state-centered element in presidential selection, thus arguably compromising the national focus of the presidency.”). For an in-depth argument that the Electoral College does not promote federalism, see Edwards, Why The Electoral College Is Bad for America, 115–22.
162. Moreover, the actual effects of the Electoral College in terms of the influence of small states is more complicated than it might seem. See Amar, The Constitution Today (Basic Books, 2016), 347 (“The electoral college privileges small states by giving every state three electoral votes at the start. . . . But the college also exaggerates the power of big states, via winner-take-all primaries.”).
163. See Richard Posner, Breaking the Deadlock (Princeton University Press, 2010) (showing that Gore’s margin was beyond any recount), 225.
164. Martin Diamond, “The Electoral College and the American Idea of Democracy” (American Enterprise Institute, 1977), reproduced in After the People Vote, 61. See also Robert M. Hardaway, Crisis at the Polls: An Electoral Reform Handbook (Greenwood, 2008), 66.
165. There have been, to be sure, any number of elections in which the winning candidate’s margin in the Electoral College was, on a percentage basis, much greater than their margin in the popular vote. But these have been, with few exceptions, cases of a landslide seeming like an even greater landslide. For example, in 1988 George Bush received 53.4 percent of the popular vote and 79 percent of the Electoral College vote. More extreme still, in 1972 Richard Nixon received 60 percent of the popular vote and 96 percent of the electoral votes, and in 1984 Ronald Reagan received 58.5 percent of the popular vote and 98 percent of the electoral vote. In general, the bigger the landslide, the greater this amplifying effect of the Electoral College. But in landslides, no amplification is necessary.
166. Longley & Peirce, The Electoral College Primer, 36.
167. Professor Judith Best shrewdly argues that “the shift-in-votes argument doesn’t work because voters aren’t numbers, and you can’t just shift a few of them from one column to another without explaining what would have caused this shift by only these voters and not other voters in other states.” The Choice of the People? Debating the Electoral College (Rowman & Littlefield, 1996), 27. However, Professor Best makes this argument in response to the “wrong winner” argument, not the “fraud” argument. Note that we have indeed explained what could cause a shift in just a few states—hackers targeting swing states. As respects the wrong winner argument, it should also be noted that Best’s book was published in 1996. She refuted the wrong winner argument in large part by observing that a candidate winning the Electoral College despite losing the popular vote “occurs very rarely and only in an election that verges on a tie.” However, this subsequently occurred twice in 16 years, and the second time in an election where the loser’s lead in the popular vote was close to three million votes.
168. It has been apparent for some time that this claim turns reality on its head. Writing in 2004, Professor George Edwards made the point I am making. He remarked that, following the 1960 election, Republicans cited voting irregularities affecting a few thousand votes in a few counties in Illinois and Texas that they believed might have been decisive. Edwards responds: “These suspicious circumstances occurred under the electoral college. Conversely, under direct election of the president, it would typically require a large change in votes to alter the national outcome—even if the electoral vote had been very close. . . . Direct election would create a disincentive for fraud, because altering an election outcome through fraud would require an organized effort of proportions never witnessed in the United States. And because no one in any state could know that his or her efforts at fraud would make a difference in the election, there would be little reason to risk trying.” Why the Electoral College Is Bad for America, 124 (emphasis in original). See also Longley & Peirce, The Electoral College Primer, 69 (“The electoral college also encourages fraud—or at least fear and rumor of fraud”).
169. James Scott & Drew Spaniel, Hacking Elections Is Easy: Preserving Democracy in the Digital Age (Institute for Critical Structure Technology, 2016), 3.
170. See Tara Ross, The Indispensable Electoral College (Regnery Gateway, 2017), 43. (“Assuming the election is close, dishonest actors must be able to predict which state (or states) will be close enough to influence the final results. This is harder than it sounds.”)
171. Indeed, data suggest that voter turnout is higher in battleground states than non-battleground states. See Thomas Neale & Andrew Nolan, “The National Popular Vote Initiative: National Popular Vote and Electoral College Options,” in Proposals for Presidential Election Reform (ed. Maureen Stone, Nova, 2015), 15.
172. See Posner, Breaking the Deadlock (“The probability of a tie decreases with the number of votes cast”), 229; Herz, “How the Electoral College Imitates the World Series,” 1212 (noting that in 2000, unlike in Florida, “the national election was not excruciatingly close, nor is it likely ever to be simply because the electorate is so large”).
173. As Professor Richard Hasen puts it, “The popular vote method increases the vote margin between candidates, because it aggregates votes from all fifty states plus the District of Columbia. Even in an extremely close popular vote race in percentage terms, the absolute numbers on a national scale would be difficult to overcome through litigation.” Hasen, “Beyond the Margin of Litigation,” 948. While stating that “it is hard to reach this conclusion with any confidence,” Hasen agrees with my premise: “Abolition of the Electoral College probably would decrease the potential for meltdown.”
174. Jack Rakove, “The E-College in the E-Age,” in The Unfinished Election of 2000, ed. Rakove (Basic Books, 2001), 226.
175. Richard Posner, Breaking the Deadlock, 235.
176. Ibid., 234.
177. Ibid., 239.
178. Ibid., 234.
179. Professor Richard Epstein succinctly concedes my point while making Posner’s: “The odds of a national recount for [the] popular vote seem small, but the turmoil such a recount could create seems too large.” The Vote, 246. It may be a mistake to focus on the quantity of confusion posed by a national recount and therefore conclude that the situation is qualitatively worse than when a recount is confined to a single state. There will be more sites of recounts and perhaps more confusion and litigation, but the outcome can hardly be worse than what happened in Florida in 2000, when half the country felt cheated—not without reason—by the resolution.
180. One additional advantage of abolishing the Electoral College is that doing so would necessarily also abolish the “contingent election”—the House of Representatives picking a winner when no candidate receives a majority of the electoral votes. Though this has happened only once, in 1824 (not counting the 1800 election that preceded and occasioned the Twelfth Amendment), the outcome of that election, where the legitimacy of the winner was tainted by suspicions of a “corrupt bargain,” suffices to discourage any desire for a repeat.
181. As one longtime advocate of proportioning electoral votes says, “Clearly, splitting electoral votes reflects preferences of voters within the state better when compared to the winner-takeall system.” Vincy Fon, “Integral Proportional System: Aligning Electoral Votes More Closely with State Popular Votes,” 16 Supreme Court Economic Review 127 (2008).
182. For a shrewd discussion of proportionate allocation, see James Corey, “The 2000 Presidential Election: Is There a Better Way of Determining the Election Outcome?” in Counting Votes, 159–68. Watson also considers a “district plan” that would award the winner of the state two electoral votes, and give one electoral vote each to the winner of each congressional district in the state.
183. Bennett, Taming the Electoral College, 148. For an elaboration on this perspective, see Best, The Choice of the People, 10–15.
184. If proportional allocation were implemented, we would need some mechanism to handle the so-called “rounding problem.” Consider the various states that have only three electoral votes. If Candidate A receives 52 percent of the popular vote in such a state, and Candidate B 40 percent, what is the fair allocation? To award Candidate A two of the three electoral votes is to give them 67 percent of the vote in that state, even though they received a much smaller percentage among actual voters. Nor does such a problem arise only in states with an odd number of electoral votes. Think of a state with four electoral votes, and one candidate winning 60 percent of the vote. Here, too, no fair proportional allocation is possible.
185. See Korsi, “If the Manner Be Not Perfect,” in Electoral College Reform (“Given the high value that democratic theory places on political participation, this is seen as one of the most serious drawbacks to the Electoral College”), 51.
186. See Rakove, “The E-College in the E-Age,” in The Unfinished Election of 2000, 219–20.
187. The perception that an amendment would be needed would help explain why the Electoral College has survived. It has never been popular with the American people. See, e.g., Sarah Dutton et al., “Poll: More Americans Believe Popular Vote Should Decide the President,” www.cbsnews.com, December 19, 2016; Lydia Saad, “Americans Call for Term Limits, End to Electoral College,” www.gallup.com/159881/americans-call-term-limits-end-electoral-college.aspx (2013). The Gallup Poll in 2013 found that 63 percent of Americans favored a constitutional amendment to establish direct election of the President. The American people have preferred ending the Electoral College from as far back as the question has been polled. See Schlesinger, “How to Democratize American Democracy,” in A Badly Flawed Election, 221 (citing Gallup Polls going back to 1944).
188. For a balanced look at NPVIC’s strengths and weaknesses, see Thomas Neale and Andrew Nolan, “The National Popular Vote Initiative: Direct Election of the President by Interstate Compact,” in The National Popular Vote Initiative. Proposals for Presidential Election Reform, ed. Maureen Stone, (Nova, 2015), 1–40.
189. Akhil Amar says no, because NPVIC does not create a new governmental apparatus and merely commits each state signatory to exercise power it could exercise on its own. “Some Thoughts on the Electoral College: Past, Present, and Future,” 33 Ohio Northern University Law Review 467 (2007), 478. See also Bennett, Taming the Electoral College, 170–74.
190. For discussion of whether the congressional endorsement requires explicit congressional action, see Neale & Nolan, in Proposals for Presidential Election Reform, 24.
191. For example, voters could be asked to record their second and third preferences (as well as first), effectively incorporating a run-off into the original vote. See Vikram Amar, “The Case for Reforming Presidential Elections by Subconstitutional Means: The Electoral College, the National Popular Vote Compact, and Congressional Power,” 100 Georgetown Law Journal 237 (2011–12). As long as we’re engaging in such speculation, it is also worth pointing out that there is another means by which a national popular vote to determine the presidency could be achieved. We have discussed an interstate agreement as an alternative to a constitutional amendment, but as Akhil Amar observes, we needn’t depend on either method. To move from the Electoral College to a national popular vote, all we need is an agreement between two people: the presidential candidates themselves. An agreement between them to instruct their electors to cast their ballot for the candidate who receives the most votes nationwide would help bring about the election of that candidate. See Amar, The Constitution Today, 355–57. What if the electors ignored the candidates’ request, i.e., Candidate A’s electors voted for A even though the candidate instructed them not to? Candidate A would have the last word: They could resign the office once elected. To ensure that Candidate B, and not Candidate A’s running mate, attained the office, is admittedly a bit trickier. See ibid., 356–57.
192. See Akhil Amar, “Electoral College Reform, Lincoln-Style,” 112 Northwestern University Law Review 63, 76 (2017). “The uniform and interlocking state laws enacted under the NPVIC will need to be supplemented by a comprehensive congressional statute providing detailed federal oversight of the presidential election process in all states—not merely the states that enact the NPVIC law.”
193. See Bennett, Taming the Electoral College, 156. “The 2000 election also taught us that the ‘normal’ is not always what we get. We should prepare for the abnormal.”
194. To be sure, efforts have been under way for some time to make our election machinery less vulnerable. See ibid., 88. However, while touting such efforts, the National Academy of Sciences, Engineering, and Medicine acknowledges that “there is no realistic mechanism to fully secure vote casting and tabulation computer systems from cyber threats.” Ibid., 92.
195. Some experts on the Electoral College endorse the January 6 date. See Bugliosi, The Betrayal of America, 109 (quoting Professor L. Kinvin Wroth, who has written and testified about the Electoral College).
196. Julian M. Pleasants, Hanging Chads (Palgrave Macmillan, 2004), 248.
197. Ibid.
198. Ibid., 269.
199. For discussion of Harris’s background and conduct throughout the recount saga, see Martin Merzer et al., The Miami Herald Report: Democracy Held Hostage (Miami Herald Publishing Co., 2001), 133–54.
200. Professor Foley independently arrived at a similar proposal. See Foley, Ballot Battles, 355 (Congress should pass “a simple procedure that empowers an impartial Electoral Count Tribunal to adjudicate any dispute that arises. . . .”) Foley calls his proposed board an Electoral Count Tribunal, because he presupposes the continued existence of the Electoral College, and he calls for a statute rather than a constitutional amendment. By contrast, I would like to see the commission created by a constitutional amendment that also abolishes the Electoral College. There are various other differences between our proposals, such as the number of members on the commission, who selects them, how long they serve, and the margin needed in Congress to override their determinations. I would also give the board more power to enact a greater range of remedies. These differences notwithstanding, I find it encouraging that Professor Foley and I, having studied the history of crisis elections, arrived at similar mechanisms for preventing repeats. Foley also headed an American Law Institute (ALI) project that in part sought a better approach to resolving disputed elections. See Principles of the Law, Election Administration: Non-precinct Voting and Resolution of Ballot-Counting Disputes no. 2 (April 19, 2017). ALI recommends that each state establish a Presidential Election Court (PEC) consisting of three judges appointed prior to the election by the secretary of state or whoever is responsible for administering elections in that state. PEC differs from the PERB I propose in various particulars, including one crucial matter that stems in part from my opposition to the Electoral College: PEC operates within each state, whereas PERB is a federal board. This contributes to other differences. For example, ALI would make PEC decisions appealable to the state supreme court, whereas I propose that PERB decisions can be reversed only by the U.S. Congress. Here, the issue is more than state-federal. I avoid the normal court system in part because the courts, too, are often considered partisan. While my goal of avoiding partisanship may seem directly at odds with my provision for Congress as the ultimate arbiter, I stipulate that PERB decisions can be reversed only by two-thirds of each House. Thus, I seek the best of both worlds, placing ultimate responsibility in the hands of a body accountable to the people but in a way that will generally respect PERB decisions absent a bipartisan determination of error. In any event, notwithstanding the major differences between ALI’s proposal and mine (especially my effort to nationalize the election and therefore the election review process), our approaches are broadly congruent, both seeking to create a preexisting, impartial decision-making process to resolve disputed presidential elections.
201. For the best account of that election, and one I rely on as well in connection with the 2008 election for U.S. senator from Minnesota, see Foley, Ballot Battles, 238–46 and 318–36. For the 2008 election, I also found indispensable Jay Weiner, This Is Not Florida: How Al Franken Won the Minnesota Senate Recount (University of Minnesota Press, 2010).
202. “Minnesota’s Close Election,” Washington Post, March 26, 1963.
203. Wiener, This Is Not Florida, 14.
204. Coleman v. Ritchie (2008) (Page, J., dissenting), 58 N.W.2d 306, 311 (2008) (Page, J., dissenting).
205. Quoted in Wiener, This Is Not Florida, 194, 208.
206. “The Absentee Senator,” Wall Street Journal, July 2, 2009.
207. “A Gracious Finish to an Epic Drama,” Minnesota Star Tribune, June 30, 2009.
208. “At Long Last,” Twin Cities Pioneer Press, June 30, 2009.
209. Foley, Ballot Battles, 326.
210. George Will, “Make Way for Buchanan,” Washington Post, September 21, 1999.
211. Third-party candidates and independent organizations have brought legal action (unsuccessfully) in an effort to open up the debates to more candidates. In the most recent such case, Level the Playing Field vs. Federal Election Commission, 232 F. Supp. 130 (D. D. C. 2017), the Court noted that Paul Kirk, a Democrat and longtime co-chair of CPD, “has stated that he personally believed the CPD should exclude third-party candidates from the debates,” 232 F. Supp. at 134.
212. See, e.g., George Farah, No Debate: How the Republican and Democratic Parties Secretly Control the Presidential Debates (Seven Stories Press, 2004), 9–10.
213. Ibid., 48–54.
214. See ibid., 105 (noting a Fox News Poll, released on July 12, 2000, finding that 64 percent of respondents wanted Buchanan and Nader included in the debates).
215. See E. J. Dionne, “Perot Leads Field in Poll,” Washington Post, June 9, 1992.
216. The stipulation that board members serve “in good behavior” obviously mirrors the Article III provision conferring lifetime tenure—subject to impeachment—for federal judges. That provision has worked well, insulating judges from political pressure while allowing for their removal when they become manifestly unfit.
217. Fladell v. Palm Beach County Canvassing Board, 772 So. 2d 1240 (Fla. 2000).
218. This consensus is described and documented by Professor Steven Mulroy in an interesting law review article, “Right Without A Remedy? The ‘Butterfly Ballot’ Case and Court-Ordered Federal Election ‘Re-votes,’” 10 George Mason Law Review, 215 (2001). Professor Mulroy (who participated in the litigation challenging the butterfly ballot) takes the view that courts are already empowered to order re-votes. Even if he is right, a constitutional amendment would be needed to give PERB that power.
219. Article II, Section 1, Clause 4.
220. Julia Azari, fivethirtyeight.com/features/what-happens-if-the-election-was-a-fraud-the-constitution-doesnt-say/ July 6, 2017.
221. See Robert Reich, “If Trump Is Guilty, His Presidency Must be Annulled,” Newsweek, February 17, 2019 (arguing that “if there’s overwhelming evidence [Trump] rigged the 2016 election . . . impeachment isn’t an adequate remedy. His presidency should be annulled. . . . Impeachment would not remedy Trump’s unconstitutional presidency because it would leave in place his vice president, White House staff and Cabinet.”). Although Reich does not specifically address what to do following his hypothetical annulment of a presidential election, a new election would clearly have to take place. One could not simply resort to the normal lines of succession, since, in Reich’s hypothetical scenario, the vice president’s own improper election was inseparable from the president’s.
222. Donohue v. Board of Elections of State of NY, 435 F. Supp. 957 (E.D.N.Y. 1976). That judge held that a re-vote is permissible, but he did not find that fraud was demonstrated in the case at hand.
223. Dworkin, “The Phantom Toll Booth,” in A Badly Flawed Election, 60.
224. Aazari, “What Happens If the Election Was a Fraud?,” July 6, 2017, Fivethirtyeight.com.
225. Hasen, “Beyond the Margin of Litigation,” 62 Washington & Lee Law Review, 992.
226. Dworkin, “The Phantom Toll Booth,” in A Badly Flawed Election, 69.
227. Hacking Elections Is Easy, 73.
228. Posner, Breaking the Deadlock, 237–38.
229. Ibid., 238.