RAMSHACKLE FEDERALISM: AMERICA’S ARCHAIC AND DYSFUNCTIONAL PRESIDENTIAL ELECTION SYSTEM Anthony J. Gaughan* INTRODUCTION Although the presidency is the most powerful public office in the United States, the federal government plays a modest role in presidential elections. Reflecting the nation’s foundation on federalist principles, federal involvement in the presidential election system is largely limited to protecting voter rights and regulating campaign contributions. In most other key respects, the election system is decentralized to a remarkable degree. Unique among major democracies, the American presidential election is administered by over 13,000 state and local jurisdictions.1 Those jurisdictions have widely different rules regarding everything from the type of ballot used to the methods employed in recounts. Most remarkable of all, the President is determined not by a nationwide popular vote but rather by a complicated Electoral College formula that emphasizes winning states rather than winning a national majority of votes overall. The extremely decentralized nature of the American presidential election system may reflect the triumph of federalism, but it is a shambolic and ramshackle version of federalism. The uncomfortable truth is that the United States relies on an archaic and dysfunctional process for electing the most powerful leader in the world. Although the Constitution has sacrosanct status in American popular imagination, the nation’s founding * Professor of Law, Drake University Law School; J.D. Harvard University, 2005; Ph.D. University of Wisconsin–Madison, 2002; M.A. Louisiana State University, 1996; B.A. University of Minnesota, 1993. The author would like to thank Jerry Goldfeder and the editors of the Fordham Law Review for the invitation to participate in the forum. This Article is part of a forum entitled Election Law and the Presidency held at Fordham University School of Law. 1. See ALEC C. EWALD, THE WAY WE VOTE: THE LOCAL DIMENSION OF AMERICAN SUFFRAGE 3–8 (2009); MARTHA KROPF & DAVID C. KIMBALL, HELPING AMERICA VOTE: THE LIMITS OF ELECTION REFORM 114 (2012); PRESIDENTIAL COMM’N ON ELECTION ADMIN., THE AMERICAN VOTING EXPERIENCE: REPORT AND RECOMMENDATIONS OF THE PRESIDENTIAL COMMISSION ON ELECTION ADMINISTRATION 1 (2014), https://www.supportthevoter.gov/ files/2014/01/Amer-Voting-Exper-final-draft-01-09-14-508.pdf [https://perma.cc/D5KW-6Q YD]; Jill Ornitz, Donald Trump Claims the Election Might Be “Rigged.” Here’s How Voting Really Works, L.A. TIMES (Aug. 12, 2016, 9:30 AM), http://www.latimes.com/ politics/la-na-pol-presidential-election-process-20160812-snap-htmlstory.html [https://perma.cc/6GVM-JC5K]. 1021 1022 FORDHAM LAW REVIEW [Vol. 85 document is part of the problem. Article II establishes the antidemocratic Electoral College for electing the President. Since 1789, four candidates have won the presidency despite losing the popular vote, and seven other candidates have come close to achieving the same feat.2 Even in routine elections, the Electoral College fails to promote the federalist cause of empowering the states. Every four years, it discriminates against forty states by making ten states singularly important in electing the President.3 The outdated nature of the Electoral College only scratches the surface of the election system’s problems. For example, federal campaign contribution limits treat presidential candidates as though they are competing for local office rather than running to lead a country of 320 million people. The U.S. Supreme Court’s Citizens United v. FEC4 decision compounded the problem by giving outside groups a huge fundraising advantage over candidate campaigns. Even incumbent Presidents seeking reelection must now rely on the assistance of unaccountable Super PACs.5 Equally problematic, the byzantine, parochial, and decentralized nature of the American presidential election system renders the country poorly prepared for resolving close contests in a fair and accurate manner. Moreover, despite many warnings, the government has failed to adequately plan for potential election disruptions such as terrorism, cyberattacks, and natural disasters. We can and must do better. Accordingly, this Article proposes five sensible and achievable reforms to modernize the presidential election system. Each requires Congress and the federal government to play a much more proactive role in the presidential election system. The Constitution may be founded on federalist principles, but excessive decentralization is not serving us well in presidential election administration. In an age of tumultuous and accelerating change, the presidential election system must be modernized to meet the needs of twenty-first century America. I. AN ARCHAIC AND DYSFUNCTIONAL PRESIDENTIAL ELECTION SYSTEM America’s election system has failed to keep pace with the modern age in four critical areas: (1) the financing of presidential campaigns, (2) the method of electing the President, (3) the administration of elections, and (4) the management of emergency planning. The disorganized and outdated system undermines America’s status as one of the world’s leading democracies. 2. GEORGE C. EDWARDS III, WHY THE ELECTORAL COLLEGE IS BAD FOR AMERICA 57–73 (2004). 3. See generally PRESIDENTIAL SWING STATES: WHY ONLY TEN MATTER (Stacey Hunter Hecht & David Schultz eds., 2015). 4. 558 U.S. 310 (2010). 5. Robert Barnes, Alito v. Obama: Reactions Split on Obama’s Remark, Alito’s Response at State of the Union, WASH. POST (Jan. 29, 2010), http:// www.washingtonpost.com/wp-dyn/content/article/2010/01/28/AR2010012802893.html [https://perma.cc/X4RJ-DZU4]. 2016] RAMSHACKLE FEDERALISM 1023 A. A Broken Presidential Campaign Finance System The problems with the presidential election system begin with federal campaign finance law. Although the public and media view the American election system as awash in money, the reality is that is only half true. In the landmark 1976 case of Buckley v. Valeo,6 the Supreme Court upheld the constitutionality of contribution limits but ruled that expenditure caps impermissibly burdened citizens’ First Amendment rights.7 Consequently, the United States is one of the few advanced democracies in the world that imposes low contribution limits on candidates but no overall expenditure caps.8 American regulators’ focus on low contribution limits is a product of the Watergate scandal of the 1970s. In response to the Nixon administration’s scandalous fundraising practices, Congress established a $1,000 limit on contributions to federal candidates as part of the 1974 amendments to the Federal Election Campaign Act (FECA).9 In the Bipartisan Campaign Reform Act of 2003 (BCRA), Congress raised the limit to $2,000 and indexed it to inflation.10 In the 2015–2016 election cycle, the federal contribution limit for individuals was $2,700 per election.11 The extraordinarily low level of federal contribution limits is apparent when contrasted with the massive amounts spent on federal campaigns, especially in presidential races. In 2012, federal election costs reached a record high of $7 billion.12 Controlling for inflation, federal campaign costs were four times higher in 2008 than in 1972,13 and costs continue to go up. Between 1984 and 2012, federal campaign costs rose 555 percent, a faster rate than the increase in healthcare expenditures.14 The skyrocketing cost of presidential campaigns reflects the unavoidable fact that political commercials, campaign staff, and nationwide travel are exceedingly expensive in a continent-wide country of 320 million people. The combination of low contribution limits and no expenditure caps puts presidential candidates on a relentless fundraising treadmill like no other 6. 424 U.S. 1 (1976). 7. See id. at 58. 8. See Paul Waldman, How Our Campaign Finance System Compares to Other Countries, AM. PROSPECT (Apr. 4, 2014), http://prospect.org/article/how-our-campaign- finance-system-compares-other-countries [https://perma.cc/45MM-HNR9]. 9. See Buckley, 424 U.S. at 27. 10. See Anthony Corrado, Money and Politics: A History of Federal Campaign Finance Law, in THE NEW CAMPAIGN FINANCE SOURCEBOOK 7, 41 (Anthony Corrado et al. eds., 2005). 11. See Quick Answers to General Questions, FEC, http://www.fec.gov/ans/ answers_general.shtml (last visited Nov. 19, 2016) [https://perma.cc/UL5N-VZNN]. 12. See Press Release, FEC, FEC Summarizes Campaign Activity of the 2011–2012 Election Cycle (Apr. 19, 2013), http://www.fec.gov/press/press2013/20130419_2012-24m- Summary.shtml [https://perma.cc/L5K8-A68S]. 13. See Dave Gilson, The Crazy Cost of Becoming President, from Lincoln to Obama, MOTHER JONES (Feb. 20, 2012, 7:00 AM), http://www.motherjones.com/mojo/2012/ 02/historic-price-cost-presidential-elections [https://perma.cc/GJ44-26QY]. 14. See Michael Scherer, Pratheek Rebala & Chris Wilson, The Incredible Rise in Campaign Spending, TIME (Oct. 23, 2014, 12:39 PM), http://time.com/3534117/the- incredible-rise-in-campaign-spending/ [https://perma.cc/T9AA-NJHP]. 1024 FORDHAM LAW REVIEW [Vol. 85 major western democracy.15 The daunting challenge of campaign fundraising deters many worthy candidates from running for office.16 The 2016 campaign was no exception. In 2015, Hillary Clinton’s presidential campaign raised $112 million, the most ever for a Democratic presidential candidate in a preelection year.17 Clinton’s fundraising advantage was a significant factor in Vice President Joseph Biden’s decision not to enter the race.18 On the Republican side, Jeb Bush’s failure to convert his $130 million war chest into primary victories does not disprove the importance of fundraising.19 The vast majority of Bush’s money was controlled by his Super PAC,20 which could receive unlimited donations, and not by the Bush campaign itself, which was limited to contributions in amounts of $2,700. Barred from coordinating with Bush himself, the Super PAC made the questionable decision to attack Florida Senator and GOP presidential candidate Marco Rubio rather than focus its attack on Donald Trump, the eventual Republican nominee.21 Jeb Bush’s own campaign committee lacked the funds necessary to mount a sustained advertising onslaught on Trump when there might still have been a chance to stop the reality TV star’s momentum.22 Trump’s success in the Republican primaries reflected 15. Justice White predicted just such a development in his Buckley dissent. See Buckley v. Valeo, 424 U.S. 1, 265 (1976) (White, J., dissenting in part and concurring in part). 16. See FRANK J. SORAUF, INSIDE CAMPAIGN FINANCE: MYTHS AND REALITIES 188 (1992); PETER J. WALLISON & JOEL M. GORA, BETTER PARTIES, BETTER GOVERNMENT: A REALISTIC PROGRAM FOR CAMPAIGN FINANCE REFORM 12–13 (2009). 17. See Reena Flores, Hillary Clinton Raises $55 Million in Fourth-Quarter Fundraising, CBS NEWS (Jan. 1, 2016, 2:15 PM), http://www.cbsnews.com/news/hillary- clinton-raises-55-million-in-fourth-quarter-fundraising/ [https://perma.cc/JV4V-DFKY]. 18. See Gloria Borger et al., Inside Biden’s Decision Not to Run, CNN (Oct. 22, 2015, 11:18 AM), http://www.cnn.com/2015/10/21/politics/joe-biden-2016-decision-timeline/ (“Biden concluded there was simply not sufficient time left to raise enough money.”) [https://perma.cc/576C-GU62]. 19. See Nicholas Confessore & Sarah Cohen, How Jeb Bush Spent $130 Million Running for President with Nothing to Show for It, N.Y. TIMES (Feb. 22, 2016), http://www.nytimes.com/2016/02/23/us/politics/jeb-bush-campaign.html [https://perma.cc/ Q3EN-V7VJ]. 20. See Seema Mehta, Super PAC Consultant Who Spent $100 Million on Jeb Bush Is Unapologetic, L.A. TIMES (Mar. 8, 2016, 3:00 AM), http://www.latimes.com/politics/la-na- mike-murphy-20160308-story.html [https://perma.cc/SS6X-AB5N]; see also Matea Gold, Nearly $100 Million in Super PAC Money Couldn’t Save Jeb Bush, WASH. POST (Feb. 20, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/02/20/nearly-100- million-in-super-pac-money-couldnt-save-jeb-bush/ [https://perma.cc/T2FE-48XM]. 21. See Farai Chideya, Trump Attack Ads Are Finally Popping Up, but They Might Be Too Late, FIVETHIRTYEIGHT (Mar. 15, 2016, 5:00 PM), http://fivethirtyeight.com/features/ trump-attack-ads-are-finally-popping-up-but-they-might-be-too-late/ [https://perma.cc/7FD B-W5XY]; Ashley Parker & Maggie Haberman, As Jeb Bush Struggles, Some Allies Blame His “Super PAC,” N.Y. TIMES (Jan. 21, 2016), http://www.nytimes.com/2016/01/22/us/ politics/jeb-bush-right-to-rise-super-pac.html [https://perma.cc/YY7M-EGCR]; Eli Stokols, Republicans Warn Bush Team Against Harming Rubio, POLITICO (Jan. 13, 2016, 5:10 AM), http://www.politico.com/story/2016/01/republicans-warn-bush-team-against-harming-rubio- 217651 [https://perma.cc/FSX2-UM7V]. 22. See Peter Overby, Arnie Seipel & Domenico Montanaro, As Bush Campaign Goes down, the Knives Come Out, NPR (Feb. 23, 2016, 6:00 AM), http://www.npr.org/2016/02/ 2016] RAMSHACKLE FEDERALISM 1025 the potent media power wielded by celebrities. Indeed, a March 2016 study found that Trump’s celebrity status and unrivaled access to the national media conferred on him free advertising that would have required nearly $2 billion dollars in paid expenditures for a normal candidate.23 The vast amounts of money necessary for a noncelebrity to run for the White House underscore what a paltry sum $2,700 is for presidential candidates. Indeed, proportionally speaking, the $2,700 contribution limit on presidential candidates is effectively far lower than the same contribution limit on congressional candidates. The average U.S. House of Representatives district has 710,000 people24 and the average state has about six million people. In contrast, presidential candidates compete in an electorate of 320 million people, a task that requires vastly greater expenditures. In 2012, the average House campaign cost $1.5 million and the average Senate campaign cost $11 million,25 whereas in the 2012 presidential election, Barack Obama spent $1.1 billion and Mitt Romney spent $1.2 billion.26 Yet, FECA imposes the exact same contribution limit—$2,700 per donor per election—on presidential candidates as it does on congressional candidates.27 Low presidential contribution limits also contrast sharply with the higher limits that many states place on gubernatorial candidates. In California, for example, gubernatorial candidates may receive individual contributions of up to $28,200 per election.28 California is not alone; nineteen other states set their contribution limits for gubernatorial candidates above the level imposed on presidential candidates by FECA.29 Moreover, twelve states— including large states like Texas and small states like Iowa—impose no contribution limits on gubernatorial and state legislative candidates.30 Consequently, while a presidential candidate competing in the Iowa caucuses is limited to contributions in amounts of $2,700 or less, a state legislative candidate running in a small district in rural Iowa may receive 23/467745559/where-did-all-that-jeb-bush-superpac-money-go [https://perma.cc/VJN2-VH LR]. 23. See Nicholas Confessore & Karen Yourish, $2 Billion Worth of Free Media for Donald Trump, N.Y. TIMES (Mar. 15, 2016), http://www.nytimes.com/2016/03/16/ upshot/measuring-donald-trumps-mammoth-advantage-in-free-media.html [https://perma.cc/ 3NM6-2G3R]. 24. Proportional Representation, HIST. ART & ARCHIVES U.S. HOUSE REPRESENTATIVES, http://history.house.gov/Institution/Origins-Development/Proportional-Representation/ (last visited Nov. 19, 2016) [https://perma.cc/ZVD6-U5ZQ]. 25. See Russ Choma, Money Won on Tuesday, but Rules of the Game Changed, OPEN SECRETS (Nov. 5, 2014), http://www.opensecrets.org/news/2014/11/money-won-on-tuesday- but-rules-of-the-game-changed/ [https://perma.cc/FU7Y-EFZD]. 26. See 2012 Presidential Race, OPEN SECRETS (Mar. 25, 2013), http:// www.opensecrets.org/pres12/ [https://perma.cc/KC58-VR69]. 27. Quick Answers to General Questions, supra note 11. 28. See CTR. FOR COMPETITIVE POLITICS, STATE LIMITS ON INDIVIDUAL CONTRIBUTIONS TO CANDIDATES, PER ELECTION CYCLE (2015), http://www.campaignfreedom.org/wp- content/uploads/2013/12/2015-07-15_-Limit-Tables_State-Contribution-Limits-On- Individual-To-Candidate-Giving_Alphabetical-And-Ranked.pdf [https://perma.cc/88PA-P5 3Y]. 29. See id. 30. See id. 1026 FORDHAM LAW REVIEW [Vol. 85 unlimited donations. The lack of contribution limits in states like Iowa does not lead to higher levels of corruption.31 For example, a 2014 study in the Public Administration Review found that Iowa was one of the least corrupt states in the country.32 Two recent changes to the presidential fundraising landscape have rendered the $2,700 limit particularly inappropriate and anachronistic. The first is the demise of the presidential public funding system. When Congress adopted the 1974 FECA amendments, it attempted to lessen the fundraising burden on presidential candidates by providing federal funds for the major party nominees.33 The public funds came with a catch: candidates who accepted the funds had to agree to an overall expenditures cap.34 But in the 2008 general election, Barack Obama declined to accept public funding—a decision that dealt a deathblow to the system35 because of the enormous advantage Obama gained from opting out. John McCain, Obama’s opponent, agreed to limit his spending to $84 million in order to receive public funding,36 a decision that backfired on the Republican nominee’s campaign. Obama ultimately raised $337 million, an amount that permitted him to outspend McCain by a margin of four to one.37 Not surprisingly, a postelection survey found that 64 percent of voters remembered seeing Obama campaign advertisements, whereas only 12 percent remembered seeing McCain ads.38 The decisive financial advantage the Obama campaign gained by rejecting public funds makes it unlikely future candidates will revive the system.39 Serious presidential candidates thus have no realistic choice other than to rely exclusively on privately raised funds. The second major development is the Supreme Court’s 2010 Citizens United decision.40 Under Citizens United and the D.C. Circuit’s subsequent decision in Speechnow.org v. FEC,41 independent expenditure groups may receive unlimited contributions.42 Citizens United gave rise to Super PACs, 31. See WALLISON & GORA, supra note 16, at 44 (“[T]here is no evident or prevalent pattern of corruption in . . . no-limit states.”). 32. See Cheol Liu & John L. Mikesell, The Impact of Public Officials’ Corruption on the Size and Allocation of U.S. State Spending, 74 PUB. ADMIN. REV. 346, 351 (2014); Chris Matthews, The 10 Most Corrupt States in the U.S., FORTUNE (June 10, 2014, 1:55 PM), http://fortune.com/2014/06/10/most-corrupt-states-in-america/ [https://perma.cc/6BD9-W6 NZ]. 33. See R. SAM GARRETT, CONG. RESEARCH SERV., RL34534, PUBLIC FINANCING OF PRESIDENTIAL CAMPAIGNS: OVERVIEW AND ANALYSIS 4–5 (2014); ROBERT E. MUTCH, BUYING THE VOTE: A HISTORY OF CAMPAIGN FINANCE REFORM 139–44 (2014). 34. GARRETT, supra note 33, at 9. 35. See Anthony Corrado, Financing the 2008 Presidential General Election, in FINANCING THE 2008 ELECTION 127, 159–60 (David B. Magleby & Anthony J Corrado eds., 2011). 36. See GARRETT, supra note 33, at 9. 37. Corrado, supra note 35, at 150–51. 38. Id. at 159. 39. Id. at 159–60. 40. Citizens United v. FEC, 558 U.S. 310 (2010). 41. 599 F.3d 686 (D.C. Cir. 2010). 42. See RICHARD L. HASEN, PLUTOCRATS UNITED: CAMPAIGN MONEY, THE SUPREME COURT, AND THE DISTORTION OF AMERICAN ELECTIONS 17–19, 29–33 (2016). 2016] RAMSHACKLE FEDERALISM 1027 outside groups that are exempt from FECA’s contribution limits as long as they do not coordinate their activities with candidate campaigns.43 But lost in the controversy over Citizens United was the fact that the Court did not lift the contribution limits on candidate campaigns.44 The result is presidential candidate campaigns face a significant competitive disadvantage in fundraising. Indeed, the Citizens United decision is precisely why Jeb Bush’s Super PAC raised $70 million more than his campaign did. Consequently, even critics have no choice but to embrace Super PACs. In his January 2010 State of the Union address, President Barack Obama condemned the Citizens United decision for unleashing a flood of money into American election campaigns.45 Yet, two years later, Obama himself supported the creation of Priorities USA, a pro-Obama Super PAC.46 The fact that even an incumbent President needs a Super PAC demonstrates the extent to which FECA’s contribution limits have failed to keep up with a rapidly changing campaign finance world. The collapse of the public funding system and the rise of Super PACs have rendered low presidential contribution limits an anachronistic relic of the post-Watergate reforms. But the method of electing the President is even more outdated. B. The Electoral College Although the media devotes an inordinate amount of coverage to national presidential polls,47 the United States does not elect its President through a nationwide popular vote. Under the Electoral College, the presidential race is determined by fifty separate state elections plus the three electoral votes at stake in the District of Columbia. The state-oriented nature of the Electoral College reflects its ad hoc origins in a political compromise at the Constitutional Convention in 1787.48 Although politicians often boast that the nation was founded on democratic principles, the reality is that the Constitution’s Framers distrusted direct democracy and embraced instead 43. Id. at 33–34. 44. See Quick Answers to General Questions, supra note 11. 45. Barnes, supra note 5. 46. Lauren Fox, Obama Campaign Gets in the Super PAC Game, U.S. NEWS & WORLD REP. (Feb. 7, 2012, 1:32 PM), http://www.usnews.com/news/blogs/washington-whispers/ 2012/02/07/obama-campaign-gets-in-the-super-pac-game- [https://perma.cc/Y5NX-BY4E]; Fredreka Schouten, Obama Now Urges Donations to Super PAC Backing Him, USA TODAY (Feb. 7, 2012, 11:04 PM), http://usatoday30.usatoday.com/news/politics/story/2012-02- 07/obama-super-pac-reversal/53002966/1 [https://perma.cc/PTL5-8MSP]. 47. See Thomas E. Patterson, News Coverage of the 2016 Presidential Primaries: Horse Race Reporting Has Consequences, SHORENSTEIN CTR. (July 11, 2016, 6:00 AM), http://shorensteincenter.org/news-coverage-2016-presidential-primaries/ [https://perma.cc/56 29-LLC9]. 48. For a discussion of the ad hoc nature of the Electoral College, see Shlomo Slonim, The Electoral College at Philadelphia: The Evolution of an Ad Hoc Congress for the Selection of a President, 73 J. AM. HIST. 35 (1986). 1028 FORDHAM LAW REVIEW [Vol. 85 the concept of a federal republic composed of sovereign states.49 The Electoral College both promoted the Framers’ federalist vision and facilitated the Constitution’s adoption by attracting the support of large and small, as well as free and slaveholding, states.50 Ever since, one of the primary defenses of the Electoral College is that the use of a state-based presidential electoral system honors the Framers’ federalist vision.51 But times have changed. In 1789, the President was elected by a confederation of states that limited suffrage to white male property holders and expected citizens to pay their primary allegiance to state, not federal, authorities. In 2016, by contrast, the President leads a diverse, global superpower in which the primary allegiance of citizens is to the nation, not to one’s state. The change resulted from the North’s victory in the Civil War, which made clear that national authority supersedes state sovereignty.52 Thus, by treating the country as a mere confederation of states, the Electoral College fails to reflect the remarkable nation that America has become. The Electoral College also is inconsistent with modern democratic norms.53 Democratic values and egalitarian principles play a far more central role in American constitutional law today than they did in the 1780s. As Akhil Amar has noted, the principle of “one person, one vote” that the Supreme Court adopted in the 1964 case Reynolds v. Sims54 has transformed “American constitutional practice.”55 The Electoral College, in contrast, violates the cornerstone democratic principle of majority rule. A product of a bygone age, it invests control of the selection of the President in the hands of 538 individual electors rather than the American people as a whole. Although just over half the states have enacted statutes 49. See ALEXANDER KEYSSAR, THE RIGHT TO VOTE: THE CONTESTED HISTORY OF DEMOCRACY IN THE UNITED STATES 3–4, 21–25 (2000); TARA ROSS, ENLIGHTENED DEMOCRACY: THE CASE FOR THE ELECTORAL COLLEGE 31–59 (2004). 50. AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 157–59 (2006); DANIEL WALKER HOWE, WHAT HATH GOD WROUGHT: THE TRANSFORMATION OF AMERICA, 1815–1848, at 61, 282 (2007); Paul Finkelman, The Proslavery Origins of the Electoral College, 23 CARDOZO L. REV. 1145 (2002). For a contrary view, see generally Earl M. Maltz, The Presidency, the Electoral College, and the Three-Fifths Clause, 43 RUTGERS L.J. 439 (2013). 51. See JUDITH BEST, THE CASE AGAINST DIRECT ELECTION OF THE PRESIDENT: A DEFENSE OF THE ELECTORAL COLLEGE 119–23, 205–18 (1971); ROSS, supra note 49, at 58 (“Removing states from the presidential election process would undermine the federalist nature of the American republic.”); Gary L. Gregg II, The Origins and Meaning of the Electoral College, in SECURING DEMOCRACY: WHY WE HAVE AN ELECTORAL COLLEGE 1, 10–26 (Gary L. Gregg II ed., 2001). 52. See DANIEL FARBER, LINCOLN’S CONSTITUTION 26–44 (2003) (discussing sovereignty and federalism). See generally CHRISTIAN G. FRITZ, AMERICAN SOVEREIGNS: THE PEOPLE AND AMERICA’S CONSTITUTIONAL TRADITION BEFORE THE CIVIL WAR (2008); FORREST MCDONALD, STATES’ RIGHTS AND THE UNION: IMPERIUM IN IMPERIO, 1776–1876 (2000); Akhil Reed Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425 (1987). 53. See, e.g., EDWARDS III, supra note 2, at 31–54. 54. 377 U.S. 533 (1964). 55. See AKHIL REED AMAR, AMERICA’S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY 463 (2012). 2016] RAMSHACKLE FEDERALISM 1029 to bind the electors to the state’s popular vote,56 many scholars contend that the Constitution empowers electors to vote for whomever they want, even if state law directs them to honor the will of the voters.57 History makes clear that the problem of faithless electors is not merely conjectural. Since 1789, there have been several isolated cases in which individual electors have broken faith with their state’s electorate by voting for someone other than the candidate chosen by the state’s voters.58 Potentially, therefore, a faithless elector could change the outcome of a close presidential race, a scenario that would trigger a constitutional crisis of the highest order.59 Equally troubling, in the event that no candidate wins a majority of the electoral vote, the Constitution directs that the House of Representatives determine the presidential contest in what is known as a “contingent” election.60 The Twelfth Amendment provides that in the contingent election, each House delegation, casting a single vote, must choose from among the top three finishers in the Electoral College.61 Balloting continues until a candidate wins a majority of state delegations. As George Edwards has observed, the contingent election in the House “represents the most egregious violation of democratic principles in the American political system” because each state’s vote receives the same weight regardless of population.62 Thus, in the contingent election, North Dakota, a state of 756,000 people, has as much say as California, a state of 39 million.63 Making matters worse, the Twelfth Amendment is so vague regarding the procedures the House should use to elect the President that scholars have described the amendment as a “ticking time bomb.”64 The possibility of a contingent election is rising. As the 2016 presidential campaign demonstrated, the American people are profoundly dissatisfied with the two major political parties. A recent Gallup poll revealed that Republican and Democratic Party identification is at an all- time low.65 A 2015 Pew Research Center poll found that 39 percent of Americans identify as independents, the highest level in the survey’s 56. See ROBERT W. BENNETT, TAMING THE ELECTORAL COLLEGE 97, 104–11 (2006); EDWARDS III, supra note 2, at 25; Beverly J. Ross & William Josephson, The Electoral College and the Popular Vote, 12 J.L. & POL. 665, 690 (1996). 57. See, e.g., EDWARDS III, supra note 2, at 25–26. 58. See BENNETT, supra note 56, at 96–97; EDWARDS III, supra note 2, at 21–24. 59. See BENNETT, supra note 56, at 102–04. 60. See EDWARDS III, supra note 2, at 55. 61. U.S. CONST. amend. XII. 62. See EDWARDS III, supra note 2, at 55. 63. Annual Estimates of the Resident Population: April 1, 2010 to July 1, 2015, U.S. CENSUS BUREAU AM. FACT FINDER, http://factfinder.census.gov/faces/tableservices/jsf/pages/ productview.xhtml?pid=PEP_2015_PEPANNRES&src=pt (last visited Nov. 19, 2016) [https://perma.cc/U7EE-V3JF]. 64. See generally Nathan L. Colvin & Edward B. Foley, The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 U. MIAMI L. REV. 475 (2010). 65. See Jeffrey M. Jones, Democratic, Republican Identification near Historical Lows, GALLUP (Jan. 11, 2016), http://www.gallup.com/poll/188096/democratic-republican- identification-near-historical-lows.aspx [https://perma.cc/WE8E-5ELD]. 1030 FORDHAM LAW REVIEW [Vol. 85 seventy-five-year history.66 Thus, polling trends strongly suggest that third- party candidates could be a major factor in future presidential elections, a development that will increase the chances of a three-way split in which no candidate receives 270 electoral votes. Even from its earliest days, the Electoral College worked poorly. In 1800, Thomas Jefferson and his running mate Aaron Burr tied in the Electoral College, throwing the election into the House of Representatives and setting off a national crisis.67 The deadlock was not resolved until February 7, 1801, after thirty-six ballots and Alexander Hamilton’s instruction to his Federalist allies to support Jefferson.68 Although the adoption of the Twelfth Amendment in 1803 prevented a recurrence of a deadlock along the lines of Jefferson-Burr,69 the Electoral College has continued to give rise to countermajoritarian results. John Quincy Adams in 1824, Rutherford B. Hayes in 1876, Benjamin Harrison in 1888, and George W. Bush in 2000 all won Electoral College majorities despite losing the popular vote.70 Moreover, in seven other elections—1836, 1856, 1860, 1948, 1960, 1968, and 1976—a shift of just a few thousand votes would have thrown each of the contests into the House of Representatives.71 Despite its defenders’ claims, the Electoral College does little to promote the “federalist” interests of most states. Ironically, the Electoral College renders much of the country irrelevant in the general election as candidates ignore solidly blue or red states to focus instead on a handful of swing states like Florida and Ohio.72 Since the 1830s, almost all states have awarded their electoral votes on a winner-take-all basis,73 with the sole exceptions of Nebraska and Maine.74 The winner-take-all basis of the Electoral College renders the forty states that vote reliably Democratic or Republican an afterthought in the great majority of presidential elections. Whereas every state counts in presidential primaries, the same is not true in the general election. For example, states such as California, New York, Alabama, Michigan, Tennessee, and Illinois are routinely ignored by presidential candidates during the general election because each of those states is either safely Republican or safely Democratic.75 Consequently, the 66. See A Deep Dive into Party Affiliation: Sharp Differences by Race, Gender, Generation, Education, PEW RES. CTR. (Apr. 7, 2015), http://www.people-press.org/2015/04/ 07/a-deep-dive-into-party-affiliation/ [https://perma.cc/J3QZ-4DDL]. 67. See JON MEACHAM, THOMAS JEFFERSON: THE ART OF POWER 330–37 (2012). 68. See id. at 337–40. 69. Andrew E. Busch, The Development and Democratization of the Electoral College, in SECURING DEMOCRACY: WHY WE HAVE AN ELECTORAL COLLEGE, supra note 51, at 27, 33–35. 70. See THOMAS H. NEALE, CONG. RESEARCH SERV., R40895, ELECTORAL COLLEGE REFORM: 111TH CONGRESS PROPOSALS AND OTHER CURRENT DEVELOPMENTS 1 n.3 (2009). 71. See EDWARDS III, supra note 2, at 61–62. 72. NELSON W. POLSBY & AARON WILDAVSKY, PRESIDENTIAL ELECTIONS: STRATEGIES AND STRUCTURES OF AMERICAN POLITICS 153, 175–76 (12th ed. 2008). 73. See BEST, supra note 51, at 22–23. 74. NEALE, supra note 70, at 12. 75. See Stacey Hunter Hecht & David Schultz, Swing States and Presidential Elections, in PRESIDENTIAL SWING STATES: WHY ONLY TEN MATTER, supra note 3, at xi, xxxv.