Presidential Elections and Majority Rule

The Electoral College that governs America has been with us since 1804, when Thomas Jefferson's supporters redesigned it for his re-election. The Jeffersonians were motivated by the principle of majority rule. Gone were the days when a president would be elected by acclamation, as George Washington had been. Instead, given the emergence of intense two-party competition, the Jeffersonians wanted to make sure that the Electoral College awarded the presidency to thecandidate of the majority, rather than minority, party. They also envisioned that a candidate would win by amassing a majority of Electoral College votes secured from states where the candidate's party was in the majority.For most of American history, this system has worked as intended, producing presidents who won Electoral College victories derived from state-based majorities. In the last quarter-century, however, there have been three significant aberrations from the Jeffersonian design: 1992, 2000, and 2016. In each of these years, the Electoral College victory depended on states where the winner received only a minority of votes. In this authoritative history of the American Electoral College system, Edward Foley analyzes the consequences of the unparalleled departure from the Jeffersonians' original intent and delineates what we can do about it. He explains how states, by simply changing their Electoral College procedures, could restore the original Jeffersonian commitment to majority rule. There are various ways to do this, all of which comply with the Constitution. If only a few states had done so before 2016, theoutcome might have been different. Doing so before future elections can prevent another victory that, contrary to the original Jeffersonian intent, a majority of voters did not want.

Nobody writes more thoughtfully about the theory and historical practices of American elections than Foley.This book is a model of careful argument, "This book should be read by everyone interested in the conduct of U.S. presidential elections. Informed by deep historical scholarship into the origins and meaning of the Twelfth Amendment,Presidential Elections and Majority Ruleillumines the path along which our electoral system strayed from the principle of majority rule. Foley also offers, and makes a strong case for, a statebystate policy approach that would bring our presidential elections back in line with that principle without amending the Constitution, Presidential Elections and Majority Rulebrilliantly sheds light on the importance of the Twelfth Amendment in recasting the Electoral College as a majoritarian institution that disfavors the election of candidates preferred by only a plurality of the electorate. This book is not only timely, but a masterful, scholarly must read, Presidential Elections and Majority Ruleis essential reading for anyone concerned with how the U.S. chooses its President. Drawing upon a deep understanding of the historical sources on the Electoral College, Foley argues that a fundamental flaw in the system is increasingly likely to result in winners who are not favored by a majority of voters in each of the states making up the winner's Electoral College majority. Foley explains why this is a problem for democratic legitimacy and offers practical solutions that do not depend upon quixotic calls to amend the U.S. Constitution., This powerful, original account of the purpose and design of the Electoral College will be the most important guide to anyone trying to understandand preservewhatever genius there was in this odd institution. It offers critical and urgent advice to anyone trying to reform it now. The pieces come together in this beautifully crafted account."

Edward B. Foley directs the election law program at Ohio State University, where he also holds the Ebersold Chair in Constitutional Law. Previously, Foley clerked for Chief Judge Patricia M. Wald of the U.S. Court of Appeals for the D.C. Circuit and Justice Harry Blackmun of the United States Supreme Court. He has also served as State Solicitor in the office of Ohio's Attorney General, where he was responsible for the state's appellate andconstitutional litigation. He is the author of the acclaimed book Ballot Battles: The History of Disputed Elections in the United States (Oxford University Press) and co-author of Election Law and Litigation: The Judicial Regulation of Politics.