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Law professor warns against ill-conceived’ national popular vote

Trent England - Oct 01, 2020

Prolific author and law professor Richard Epstein published a defense of the Electoral College last Saturday in the Las Vegas Review-Journal.

Prolific author and law professor Richard Epstein published a defense of the Electoral College last Saturday in the Las Vegas Review-Journal. After a succinct description of the history leading to this point, he warns that abolishing the Electoral College would plunge the country into a national fight over election rules and create the prospect of national recounts.

In a direct election, each presidential campaign would “campaign heavily in those major metropolitan areas where it has large majorities in order to pad the vote.” This would lead to “inevitable charges of fraud and irregularities” such that “a nationwide recount will be required that will make Florida’s 2000 recount — which eventually confirmed George Bush’s victory and took more than a month to complete — look like a minor skirmish.”

Epstein predicts that any move to a national popular vote “will require a further [constitutional] amendment to create at least some federal control over the current process.”

It seems clear that such an amendment could not specify the details of a system that works for 50 different states. It is equally clear that any delegation of that power to either Congress or to some administrative body to address that issue will lead to gridlock.

There is no need to theorize here. Epstein summarizes the complete breakdown of the Federal Election Commission, the supposedly bi-partisan regulatory body created to administer federal campaign finance laws. Epstein warns against changing the rules based on the current political moment.

…[T]he last thing we should want is to enter into choppy waters with an ill-conceived program for popular elections that will burden the nation long after Trump is gone. It is one of the happy accidents that the peculiar historical transformations of the Electoral College stands us in such good stead today.