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Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College
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Edward B. Foley
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Edward B. Foley
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ISBN-13:
978-0190060152
ISBN-10:
0190060158
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Editorial Reviews
Review
"Nobody writes more thoughtfully about the theory and historical practices of American elections than Foley.�This book is a model of careful argument" -- Sanford Levinson, author of�Framed
"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 Rule�illumines 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" -- Alexander Keyssar, Matthew W. Stirling, Jr. Professor of History and Social
Policy, Harvard Kennedy School and author of�Why Do We Still�Have the Electoral College?
"Presidential Elections and Majority Rule�brilliantly 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" -- Franita Tolson, Vice Dean for Faculty and Academic Affairs, Professor of Law, USC Gould School of Law
"Presidential Elections and Majority Rule is 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." --
Richard L. Hasen, author of�Election Meltdown
"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." -- Lawrence Lessig, Roy L. Furman Professor of Law and Leadership, Harvard Law School, and author of�They Don't Represent Us
About the Author
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 and constitutional 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.
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Product details
- Publisher : Oxford University Press (January 2, 2020)
- Language : English
- Hardcover : 256 pages
- ISBN-10 : 0190060158
- ISBN-13 : 978-0190060152
- Item Weight : 1.06 pounds
- Dimensions : 9.2 x 1.1 x 6.4 inches
-
Best Sellers Rank:
#1,071,676 in Books (See Top 100 in Books)
- #823 in Non-US Legal Systems (Books)
- #852 in Comparative Politics
- #1,184 in Government
- Customer Reviews:
Customer reviews
4.8 out of 5 stars
4.8 out of 5
18 global ratings
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Reviewed in the United States on December 26, 2020
In 2000 Al Gore secured half a million more votes for President than his opponent George W. Bush but lost the election, and the same was true for Hillary Clinton in 2016 when she won the popular vote by almost three million votes over Donald Trump yet failed to prevail. The culprit in these two elections was the uniquely peculiar Electoral College system we use to elect our chief executive. These two elections have led many to call for the abolition, or at the very least a modification, of this archaic and unfair system. In his exhaustive and carefully researched work Professor Foley explores the history, constitutional and legislative evolution, as well as many of the proposed reforms of this system; but the main theme of the book is devoted to his own proposed reform. Foley, like many of us, would like to have the President elected by popular vote, and he is only one of many who realizes how difficult, if not impossible, it would be to achieve this via a constitutional amendment. Consequently, he suggests the best alternative is a restoration of the Jeffersonian model that is embodied in the Twelfth Amendment of the Constitution. Presently, a candidate who wins a plurality of the votes in a state wins all of that states electoral votes, but the Jeffersonian model requires a majority win in order to win all of the electors. So, according to Foley, a majority of majorities, where the candidate who won a majority of the electoral votes in a state in states with the majority of the electors would win, and this would be a fairer and safer outcome. I beg to differ, because in his list of presidential elections that meet this standard he includes the election of 1860 because while Lincoln did win a majority of majorities his share of the popular vote did not even reach 40%. Now, we lucked out because olde Abe was one of the great ones, but we might not be so lucky next time, and this should give us sufficient reason to pause. Nonetheless, this is an excellent and important contribution to the debate on what to do about reforming the system.
Reviewed in the United States on January 19, 2020
We, the voters, regardless of party affiliation, must elect a president that a majority of people want. This is the gist of (Thomas) Jeffersonian rule and the bottom line of Foley's book. The author does a great job of describing elections in which this goal was not reached, three times since 1992. One of the author's suggestions for remedy, Instant Runoff Voting (IRV). Voters give second and third choices, which can be added to the first place votes, if need be, to form a majority vote.
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Reviewed in the United States on March 2, 2020
Edward Foley shows how a the fundamental principle of majority rule gets violated in the breach when states allocate ALL their Electoral College votes to candidates who capture only a plurality of votes. It’s high time that the state secretaries and AGs recognized the need for uniformity of principle and establish methods for assuring that the will of the majority prevail in the state allocations of Electoral votes similar to the rules used by the voting in the Electoral College itself!
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Reviewed in the United States on June 7, 2020
This reads like a text book, it's scholarly and academic which will limit those who are likely to delve into the subject. Having said that, for those of us who are proponents of a national popular vote, the author makes sense of advocating for run-offs or ranked choice voting as a means of ensuring the presidency goes to the candidate with the majority of votes in the majority of states.
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Top reviews from other countries
Amazon Customer
5.0 out of 5 stars
Excellent study of the history, purpose, failings and potential reform of the electoral college
Reviewed in the United Kingdom on December 1, 2020Verified Purchase
Those of us outside the United States (and, I suspect, many inside) are baffled by the electoral college. Twice in the last twenty years, we have struggled to understand how, in a nationwide race between two people, the presidency has gone to the candidate who received fewer votes, in the second case almost 3 million fewer. What sort of democracy gives power to the loser? Why not abandon such an archaic, bizarre system?
This book does a superb job of explaining how this came about and how it is a failure of the system to work as intended. It is best read in conjunction with Professor Foley’s other recent book, Ballot Battles, which looks more closely at the question of vote counting and fairness. In this second, complementary volume, he analyses the flaws of the original 1787 electoral college and its revision in the 1803 Twelfth Amendment following the debacle of the 1800 election. The author argues that the 1803 version (the ‘Jeffersonian’ electoral college, as he terms it) was intended to ensure a candidate had a super-majority, that is a majority of electoral college votes from states in which the candidate had a majority of the vote. Foley explains the reasoning behind a system which was meant to ensure majority rule, a core value of US democracy. There is some important clarification of terminology, not least the off-overlooked fact that Americans vote for presidential electors, not a president. The Founders did not necessarily anticipate a national popular vote; hence the key role of state legislatures.
In his historical analysis of how the system works, he identifies the main problem as the switch, under Andrew Jackson, to a system where states awarded all their votes to plurality winners. One of the main themes of this book, which we too often forget, is that someone who wins a plurality (most votes) does not necessarily win a majority (more than half the votes). The author demonstrates how the system is particularly bad at coping with third candidates, since it was essentially designed for head-to-head races (where one candidate would necessarily receive a majority). As a result, several presidents have come to power through receiving electoral votes from states in which they did not have a majority of popular votes.
Although he seems to agree that it would be better to abolish the electoral college and have a national vote, perhaps roughly like that of France with a run-off between the top two if no one receives 50% in the first round, Foley is realistic about the near-impossibility of attaining the necessary constitutional amendment. Instead, therefore, he proposes ways in which the system could be reformed within the bounds of the current constitution to return to the Jeffersonian intention of majority rule. In particular, he suggests various ways in which run-offs could be done within existing constitutional and statutory constraints.
I would have liked to have seen a more critical discussion of some of the other problems of the electoral college, such as the fact that states set the rules for a federal election which means the franchise can depend on where you live (as shown in the different rules for postal and absentee ballots in 2020). Most seriously, I think there was an avoidance of the question of how majority rule is problematic in a system where electoral votes are not fairly apportioned (so Wyoming has 177,000 voters per electoral college vote, whereas in Texas it is 717,000). It is possible to obtain an electoral college majority from states in which a candidate receives a majority, yet still lose the popular vote, and there is a real issue with how the system can be a safeguard of majority rule with this critical flaw.
Nevertheless, this is a very good, succinct explanation of the electoral college system and realistic ways to reform it which certainly helped at least one bemused foreigner understand and think more broadly about the subject.
This book does a superb job of explaining how this came about and how it is a failure of the system to work as intended. It is best read in conjunction with Professor Foley’s other recent book, Ballot Battles, which looks more closely at the question of vote counting and fairness. In this second, complementary volume, he analyses the flaws of the original 1787 electoral college and its revision in the 1803 Twelfth Amendment following the debacle of the 1800 election. The author argues that the 1803 version (the ‘Jeffersonian’ electoral college, as he terms it) was intended to ensure a candidate had a super-majority, that is a majority of electoral college votes from states in which the candidate had a majority of the vote. Foley explains the reasoning behind a system which was meant to ensure majority rule, a core value of US democracy. There is some important clarification of terminology, not least the off-overlooked fact that Americans vote for presidential electors, not a president. The Founders did not necessarily anticipate a national popular vote; hence the key role of state legislatures.
In his historical analysis of how the system works, he identifies the main problem as the switch, under Andrew Jackson, to a system where states awarded all their votes to plurality winners. One of the main themes of this book, which we too often forget, is that someone who wins a plurality (most votes) does not necessarily win a majority (more than half the votes). The author demonstrates how the system is particularly bad at coping with third candidates, since it was essentially designed for head-to-head races (where one candidate would necessarily receive a majority). As a result, several presidents have come to power through receiving electoral votes from states in which they did not have a majority of popular votes.
Although he seems to agree that it would be better to abolish the electoral college and have a national vote, perhaps roughly like that of France with a run-off between the top two if no one receives 50% in the first round, Foley is realistic about the near-impossibility of attaining the necessary constitutional amendment. Instead, therefore, he proposes ways in which the system could be reformed within the bounds of the current constitution to return to the Jeffersonian intention of majority rule. In particular, he suggests various ways in which run-offs could be done within existing constitutional and statutory constraints.
I would have liked to have seen a more critical discussion of some of the other problems of the electoral college, such as the fact that states set the rules for a federal election which means the franchise can depend on where you live (as shown in the different rules for postal and absentee ballots in 2020). Most seriously, I think there was an avoidance of the question of how majority rule is problematic in a system where electoral votes are not fairly apportioned (so Wyoming has 177,000 voters per electoral college vote, whereas in Texas it is 717,000). It is possible to obtain an electoral college majority from states in which a candidate receives a majority, yet still lose the popular vote, and there is a real issue with how the system can be a safeguard of majority rule with this critical flaw.
Nevertheless, this is a very good, succinct explanation of the electoral college system and realistic ways to reform it which certainly helped at least one bemused foreigner understand and think more broadly about the subject.
T. Taller
5.0 out of 5 stars
Superb in covering the who, why, what, where and how of the Electoral College
Reviewed in Canada on March 12, 2021Verified Purchase
A a Canadian who many long years ago majored in political science, economics and accounting this was excellent. In Political Science I focused on Federalism (Switzerland, Australia, and the US. With so much to study about the US, instructors basically left the Electoral College as a footnote. I suspect, given what we saw in 2016, this has changed. Thank you for the book.
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