The Electoral College: Reform Proposals in the 109th Congress

The Electoral College:
Reform Proposals
th
in the 109 Congress
Updated March 12, 2007
Thomas H. Neale
Government and Finance Division



The Electoral College: Reform Proposals in the 109
Congress
Summary
American voters elect the President and Vice President of the United States
under a complex arrangement of constitutional provisions, federal and state laws, and
political party practices known as the electoral college system. For additional
information on contemporary operation of the system, please consult CRS Report
RL32611, The Electoral College: How It Works in Contemporary Presidential
Elections, by Thomas H. Neale.
Despite occasional close elections, this system has delivered uncontested results
in 47 of 51 elections since the 12th Amendment was ratified in 1804. Down these
many years, however, it has been the subject of persistent criticism and numerous
reform proposals. In the contemporary context, related measures fall into two basic
categories: those that would eliminate the electoral college and substitute direct
popular election of the President and Vice President, and those that would retain the
existing system in some form, while correcting perceived defects.
Four relevant proposed amendments were introduced in the 109th Congress:
H.J.Res. 8 (Representative Gene Green, and others); H.J.Res. 17 (Representative
Eliot Engel and others); H.J.Res. 36, (Representative Jesse Jackson, Jr., and others);
H.J.Res. 50 (Representative Zoe Lofgren and others); and S.J.Res. 11 (Senators
Dianne Feinstein and Barbara Boxer). All proposed to eliminate the electoral college
and substitute direct popular election, while H.J.Res. 8, H.J.Res. 17, H.J.Res. 50 and
S.J.Res. 11 also sought to empower Congress to set federal standards for various
aspects of voting registration and election administration procedures. The House
measures were referred to the House Committee on the Judiciary and to its
Subcommittee on the Constitution, while S.J.Res. 11 was referred to the Senate
Committee on the Judiciary. No further action was taken on any of them during the
life of the 109th Congress.
For additional information on electoral college contingencies and broader
aspects of reform proposals, please consult CRS Report RL30804, The Electoral
College: An Overview and Analysis of Reform Proposals, by L. Paige Whitaker and
Thomas H. Neale. This report will not be updated.



Contents
In troduction ..................................................1
Alternative Approaches: Direct Popular Election v. Electoral College
R eform .................................................2
Direct Popular Election.....................................2
Direct Popular Election: Pro and Con..........................3
Electoral College Reform...................................4
Electoral College and Electoral College Reform: Pro and Con.......7
Reform Proposals in the 109th Congress............................9
H.J.Res. 8................................................9
H.J.Res. 17..............................................11
H.J.Res. 36..............................................12
H.J.Res. 50..............................................13
S.J.Res 11...............................................16
Concluding Observations.......................................18
Trends in Electoral College Reform Proposals..................18
Prospects for Change in the Contemporary Context..............19



The Electoral College: Reform Proposals in
th
the 109 Congress
Introduction
American voters elect the President and Vice President of the United States
under a complex arrangement of constitutional provisions, federal and state laws, and
political party practices known as the electoral college system.1 Despite occasional
close elections, this system has delivered uncontested results in 47 of 51 elections
since adoption of the 12th Amendment, effective in 1804. In three elections, the
electoral college awarded the presidency to candidates who won fewer popular votes
than their principal opponents, but a majority of electoral votes. In a fourth, the
House of Representatives decided the contest by contingent election, in this case
electing a candidate who won fewer popular and electoral votes than his principal2
opponent.
The most recent instance in which the popular vote runner up received a
majority in the electoral college occurred in 2000, when George W. Bush was elected
President over his opponent, Al Gore, Jr., despite having won fewer popular votes
than Gore nationwide. Extremely close and highly contested results in the pivotal
state of Florida led to a bitter and protracted struggle that continued for over a month
following election day. A Supreme Court decision3 ended further recounts, leading
to certification of Bush electors in Florida, and the Republican candidate’s
subsequent election.
Following the 2000 presidential election, both the electoral college system and
the shortcomings of election administration and voting technology, particularly in
Florida, were widely criticized. While no substantive action was taken on electoral
college proposals, Congress addressed the latter issue with the enactment of the Help
America Vote Act, “HAVA” (P.L. 107-252, 116 Stat. 1666), in 2002. This act
established national standards for voting systems and certain election procedures, and


1 For additional information on contemporary operation of the electoral college system,
consult CRS Report RL32611, the Electoral College: How It Works in Contemporary
Presidential Elections, by Thomas H. Neale.
2 In the multiple-candidate election of 1824, the House of Representatives chose John
Quincy Adams over Andrew Jackson, who enjoyed a popular and electoral vote plurality,
in a contingent election. Prior to the 2000 election, Rutherford B. Hayes was chosen over
popular vote winner Samuel Tilden 1876 by one electoral vote, after a protracted political
conflict. In 1888, Benjamin Harrison won a majority of electoral votes, and was chosen
over popular vote winner Grover Cleveland.
3 Bush v. Gore, 531 U.S. 989 (2000).

included a program of grants to assist state and local governments in meeting the
act’s goals.4
The successful passage of HAVA contrasted with almost complete lack of
legislative activity in recent Congresses on proposed constitutional amendments that
would eliminate or reform the electoral college system, and served to highlight the
comparative difficulties faced by would-be electoral college reformers. The
fundamentals of the electoral college system were established by the Constitution,
and can only be altered by the much more difficult process of constitutional
amendment, rather than by legislation. Moreover, HAVA’s prospects for enactment
were boosted by the fact that, while few would defend the failures in voting
administration and technology that helped promote the act, the electoral college
would arguably be enthusiastically supported in Congress and the public forum by
its various advocates and defenders.
Notwithstanding these hurdles, however, amendments have been proposed to
alter or eliminate the electoral college in almost every Congress since 1789. This
report examines and analyzes alternative proposals for change, presents pro and con
arguments, and identifies and analyzes related proposals introduced in the 109th
Congress.
Alternative Approaches: Direct Popular Election v. Electoral
College Reform
A wide range of proposals to reform presidential election procedures have been
introduced over time. In recent decades, they have fallen into two categories: (1)
those that seek to eliminate the electoral college system entirely, and replace it with
direct popular election; and (2) those that seek to repair perceived defects of the
existing system.
Direct Popular Election. The direct election alternative would abolish the
electoral college, substituting a single, nationwide count of popular votes. The
candidates winning a plurality of votes would be elected President and Vice
President. Most direct election proposals would constitutionally mandate the joint
tickets of presidential/vice presidential candidates already adopted in state law.5
Some would require simply that the candidates winning the most popular votes
would win. Others, however, would set a minimum number of votes necessary to
win election — generally at 40% of those cast, but in some cases, a majority. In the
event no presidential-vice presidential ticket were to attain the 40% or majority
threshold, these direct election measures generally require the two tickets that


4 For additional information on HAVA, please consult CRS Report RL32685, Election
Reform: The Help America Vote Act and Issues for Congress, by Eric A. Fischer and Kevin
J. Coleman. For a general overview of federal election reform issues, please consult CRS
Report RS20898, Election Reform: Overview and Issues, by Kevin J. Coleman and Eric A.
Fischer
5 This provision, currently in use in all the states, requires each voter to cast a single vote
for a joint ticket for President and Vice President, thus insuring that the President and Vice
President will always be of the same political party.

received the most votes to compete in a subsequent runoff election. Alternatively,
some versions would provide that Congress, meeting in joint session, elect the
President and Vice President if no ticket received 40% of the vote.
Direct Popular Election: Pro and Con.
Pro. Proponents of direct popular election cite a number of factors in
support of their proposal. At the core of their arguments, they assert that their
process would be simple, national, and democratic:
!They assert that direct popular election would provide for a single,
democratic, choice in which all the nation’s voters would directly
elect the two highest-ranking officials in the United States
government, the President and Vice President.
!Further, the candidates who won the most popular votes would
always win the election. Under some direct election proposals, if no
one received at least 40% of the vote, the voters would be able to
choose between the two tickets who gained the most votes in a
runoff election. (Other direct election proposals would substitute
election by joint session of Congress for a runoff if no ticket
received at least 40% of the vote.)
!Every vote would carry the same weight in the election, no matter
where in the nation it was cast.
!Direct election would eliminate the potential complications that
could arise under the current system in the event of a presidential
candidate’s death between election day and the date on which
electoral vote results are declared, since the winning candidates
would become President- and Vice President-elect as soon as the
popular returns were certified.6
!All the various and complex mechanisms of the existing system,
such as provisions in law for certifying the electoral vote in the
states and the contingent election process, would be supplanted by7
these simple requirements.
Con. Electoral college defenders attempt to refute these arguments, pointing
to what they assert are flaws in direct election:


6 For further information on the succession question, please consult CRS Report RL30804,
The Electoral College: An Overview and Analysis of Reform Proposals, by L. Paige
Whitaker and Thomas H. Neale.
7 In a contingent election, the President is elected in the House of Representatives, with each
state casting a single vote, regardless of its population and the election results in that state.
The Senate elects the Vice President in such cases, with each Senator casting a single vote.

!Direct election proponents claim their plan is more democratic, and
provides for “majority rule,” yet some direct election proposals
require that victorious candidates gain as little as 40% of the vote in
order to be elected. Others, moreover, include no minimum vote
threshold at all. How, ask its critics, could such plurality Presidents
be reconciled with the concept of strict “majority rule” enshrined by
direct election’s proponents?
!Further, they assert that direct election would foster acrimonious and
protracted post-election struggles, rather than eliminate them. For
instance, as the presidential election of 2000 demonstrated, close
results in a single state in a close election are likely to be bitterly
contested. Under direct election, those favoring an electoral college
claim, every close election might resemble the post-election contests
in 2000, not just in one state, but also on a nationwide basis, as both
parties seek to gain every vote. Such rancorous disputes could have
profound negative effects on political comity in the nation, and, in
the worst case, might undermine the stability and legitimacy of the
federal government. To those who suggest that the struggle over
Florida’s popular vote returns in 2000 was unique, they could cite
the example of Ohio in 2004, where multiple legal actions were
pursued even though the popular vote margin for the winning
candidates exceeded 118, 000.8
Electoral College Reform. Reform measures that would retain the electoral
college in some form have included a range of different proposals, the most popular9
of which are listed below. Most versions of these plans would eliminate the office
of elector, and award electoral votes directly to the candidates, and would retain the
requirement that a majority of electoral votes is necessary to win the presidency. In
common with direct election, most would also require joint tickets of presidential-
vice presidential candidates, a practice which is currently provided under state ballot
laws.
The Automatic Plan. This reform proposal would award all electoral votes
in each state directly to the winning candidates who obtained the most votes
statewide; in almost all versions, a plurality would be sufficient in individual states
to win the state’s electoral votes, while most versions provide for some form of
contingent election in Congress in the event no candidate wins a nationwide majority
of electoral votes. This alternative would constitutionally mandate the “general
ticket” or “winner-take-all system” currently used to award electoral votes in 48
states and the District of Columbia.


8 Bush/Cheney: 2,859,764; Kerry/Edwards: 2,741,165. Ohio Secretary of State website, at
[ ht t p: / / www.sos.st at e.oh.us/ ] .
9 For more detailed information on these reform options, consult CRS Report RL30804, The
Electoral College: An Overview and Analysis of Reform Proposals, by L. Paige Whitaker
and Thomas H. Neale.

Proponents of the automatic plan argue that it would maintain the present
electoral college system’s balance between federal and state power, and between
large and small states. Proponents note that the automatic plan would eliminate the
possibility of “faithless electors.” Further, the automatic plan would help preserve
the present two-party system, under a state-by-state, winner-take-all method of
allocating electoral votes. This, they assert, is a strength of the existing arrangement,
because it tends to reward parties that incorporate a broad range of viewpoints, and
embrace large areas of the nation. Opponents, on the other hand, note presidential
elections are still indirect under the automatic system. They further assert that
“minority”10 Presidents could still be elected under the automatic system, and it still
provides no electoral vote recognition of the views and opinions of voters who chose
the losing candidates.
The District Plan. This reform proposal would continue the current
allocation of electoral votes by state, and, in common with most reform plans, would
eliminate the office of presidential elector. It would award one electoral vote to the
winning candidates in each congressional district (or other, ad hoc, presidential
election district) of each state. The additional two electoral votes, reflecting the two
“constant” or “senatorial” electoral votes assigned to each state, would be awarded
to the statewide vote winners. This alternative would constitutionally mandate the11
system currently used to award electoral votes in Maine and Nebraska.
Proponents of the district plan argue that it would more accurately reflect the
popular vote results for presidential and vice presidential candidates than the winner-
take-all method, or the automatic plan, because, by allocating electoral votes
according to popular vote results in congressional districts, it would take into account12
political differences within states. They also suggest that in states dominated by


10 Presidents and Vice Presidents elected with an electoral vote majority, but fewer popular
votes than their major opponents.
11 The district plan is a permissible state option under the Constitution, which does not
specify any particular method for awarding electoral votes. In fact, the district plan wasth
widely used in the 19 century.
12 The question of what districts would be used under a district plan has been considered
over time. The use of either ad hoc presidential election districts, or existing congressional
districts could be mandated, or states could be offered the option of using either method.
The ad hoc district variant of the district plan would empower the states to create special
presidential election districts, one for every seat the state holds in the House of
Representatives, while rewarding the two “senatorial” electors to the statewide vote winner.
A further variation might be to eliminate the “senatorial” electors, and establish a number
of presidential election districts equal to the total Senate and House delegations in each
state. Any such districts would undoubtedly need to conform to existing Supreme Court
mandates that they be as equal in population as possible, in order to assure that the doctrine
of “one person, one vote” is observed. The minimal population differences between
congressional districts and the fact they are already in existence might argue for their use.
On the other hand, in contemporary practice, congressional districts do not always follow
the boundaries of existing political subdivisions, recognized regions, or less formal
“communities,” thus vitiating one of the arguments in favor of the district system, that it
takes into effect the different political leanings of different parts of a state. These options
(continued...)

one party, the district plan might provide an incentive for greater voter involvement
and party vitality, because it would be possible for the less dominant party to win
electoral votes in districts where it enjoys a higher level of support, e.g. “Upstate”
New York versus the New York City metropolitan area, or northern California vs. the
Los Angeles and San Francisco metropolitan areas. Opponents would note that the
district plan retains indirect election of the nation’s chief executive, that the potential
for “minority” Presidents would continue, and that it might actually weaken the two-
party system by encouraging parties that promote narrow geographical or ideological
interests and that may be concentrated in certain areas. In fact, they might suggest
that adoption of the district plan would encourage gerrymandering, as the parties
maneuvered for advantage in presidential elections.
The Proportional Plan. This reform proposal would award electoral votes
in each state in proportion to the percentage of the popular vote gained by each ticket.
Some versions, known as “strict” proportional plans, would award electoral votes in
proportions as small as thousandths of one vote, that is, to the third decimal point,
while others, known as “rounded” proportional plans, would use various methods of
rounding to award only whole numbers of electoral votes to competing candidates.
Voters in Colorado rejected a proposed state constitutional amendment (Amendment

36) at the November 2, 2004, general election that would have established a rounded13


proportional system in that state. For further information on this proposal, please
consult CRS Report RL32611, The Electoral College: How It Works in
Contemporary Presidential Elections, by Thomas H. Neale.
Proponents of the proportional plan argue that it comes closer than other reform
plans to electing the President and Vice President by popular vote, while still
preserving the state role in presidential elections. They also assert that the
proportional plan reduces the likelihood of “minority” presidents — those who win
with a majority of electoral votes, but fewer popular votes than their chief opponent.
They also suggest that it would more fairly account for public preferences, by
allocating electoral votes within the states to reflect the actual support attained by
various candidates, particularly in the strict, as opposed to rounded, version of the
proportional plan, while still retaining the role of the states. Opponents again suggest
that it retains indirect election of the President, which they assert is inherently less
democratic than direct popular election. They also note that the proportional plan
could still result in “minority” Presidents and Vice Presidents, and by eliminating the
magnifier effect of the automatic and district plans, might actually result in more
frequent electoral college deadlocks, situations in which no candidate receives the
requisite majority of electoral votes.


12 (...continued)
might open an opportunity for experiment on the “states as laboratories for the nation”
model.
13 The Constitution does not currently provide for fractions or parts of electoral votes, so a
strict proportional system would require a constitutional amendment. Since a rounded
proportional plan or system would award whole electoral votes, it is currently a permissible
state option under the Constitution.

Electoral College and Electoral College Reform: Pro and Con.
Pro. Defenders of the electoral college, either as presently structured, or
reformed, offer various arguments in its defense:
!They reject the suggestion that it is undemocratic. Electors are
chosen by the voters in free elections, and have been in nearly all
instances since the first half of the 19th century.
!The electoral college system prescribes a federal election of the
President by which votes are tallied in each state. The founders
intended that choosing the President would be the action of citizens
of a federal republic, in which they participate both as citizens of the
United States, and as members of their state communities.
!While electoral vote allocation does provide the “constant two,” or
“senatorial” electors for each state, regardless of population,
defenders believe this is another federal element in our constitutional
system, and is no less justifiable than equal representation for all
states in the Senate. Moreover, the same formula also assigns
additional electors equal in number to each state’s delegation in the
House of Representatives, which more than compensates for any
minor distortion.
!Further, defenders reject the suggestion that less populous states like
Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont
and Wyoming, as well as the District of Columbia, each of which
casts only three electoral votes, are somehow “advantaged” when
compared with California (currently 55 electoral votes). These 55
votes alone, they note, constitute more than 20% of the electoral
votes needed to win the presidency, thus conferring on California
voters, and those of other populous states, a “voting power”
advantage that far outweighs the minimal arithmetical edge
conferred on the smaller states.14
!The electoral college system promotes political stability, they argue.
Parties and candidates must conduct ideologically broad-based
campaigns throughout the nation in hopes of assembling a majority
of electoral votes. The consequent need to forge national coalitions
having a wide appeal has been a contributing factor in the
moderation and stability of the two-party system.
!They find the faithless elector phenomenon to be a specious
argument. Only nine such electoral votes have been cast against
instructions since 1820, and none has ever influenced the outcome


14 For additional information on the voting power theory, please consult CRS Report
RL30804, The Electoral College: An Overview and Analysis of Proposals for Change, by
L. Paige Whitaker and Thomas H. Neale.

of an election. Moreover, nearly all electoral college reform plans
would remove even this slim possibility for mischief by eliminating
the office of elector.
Con. Supporters of direct election, and critics of the electoral college counter
that the existing system is cumbersome, potentially anti-democratic, and beyond
saving. The following asserted failings are frequently cited.
!The electoral college, direct election supporters assert, is the
antithesis of their simple and democratic proposal. It is, they
contend, philosophically obsolete: indirect election of the President
is an 18th century anachronism that dates from a time when
communications were poor, the literacy rate was much lower, and
the nation had yet to develop the durable, sophisticated, and
inclusive political system it now enjoys.
!Moreover, they find the 12th Amendment provisions that govern
cases in which no candidate attains an electoral college majority
(contingent election) to be even less democratic than the primary
provisions of Article II, section 1.15
!By providing a fixed number of electoral votes per state that is
adjusted only after each census, they maintain, the electoral college
does not accurately reflect state population changes in intervening
elections.
!They assert that the two “constant” or “senatorial” electors assigned
to each state regardless of population give some of the nation’s least
populous jurisdictions a disproportionate advantage over more
populous states, from this viewpoint.
!The office of presidential elector itself, they note, and the resultant16
“faithless elector” phenomenon, provide opportunities for political
mischief and deliberate distortion of the voters’ choice.
!They argue that by awarding all electoral votes in each state to the
candidates who win the most popular votes in that state, the winner-
take-all system effectively disenfranchises everyone who voted for
other candidates. Moreover, this same arrangement is the


15 For more detailed information on the contingent election process, please consult CRS
Report RL32695, Election of the President and Vice President by Congress: Contingent
Election, by Thomas H. Neale.
16 Faithless electors are those who cast their votes for candidates other than those to whom
they are pledged. Notwithstanding political party rules and state laws, most constitutional
scholars believe that electors remain free agents, guided, but not bound, to vote for the
candidates they were elected to support. For further information, please consult CRS Report
RL30804, The Electoral College: An Overview and Proposals for Change, by L. Paige
Whitaker and Thomas H. Neale.

centerpiece of one category of electoral college reform proposal, the
automatic plan.
!Critics further note that, although all states currently provide for
choice of electors by popular vote, state legislatures still retain the
constitutional option of taking this decision out of the voters’ hands,
and selecting electors by some other, less democratic means.17 This
option was, in fact, discussed in Florida in 2000 during the post-
election recounts, when some members of the legislature proposed
to convene in special session and award the state’s electoral votes,
regardless of who won the popular contest in the state. The survival
of this option demonstrates that even one of the more “democratic”
features of the electoral college system is not guaranteed, and could
be changed arbitrarily by politically motivated state legislators.
!Finally, the electoral college system has the potential to elect
presidential and vice presidential candidates who obtain an electoral
vote majority, but fewer popular votes than their opponents, as
happened in 2000, 1888, and 1876. While a system that allows such
a miscarriage of the popular will might have been acceptable in the

19th century, opponents maintain that it has no place in the 21st.


Reform Proposals in the 109th Congress
H.J.Res. 8.
H.J.Res. 8, the Every Vote Counts Amendment, was introduced on January 4,
2005, by Representative Gene Green, and was cosponsored by Representatives Brian
Baird and William D. Delahunt. The amendment sought to provide for direct popular
election of the President and Vice President and also empower Congress and the
states to establish voter qualifications with respect to age and residence.
Sections 1, 3, 4, and 5 dealt with the election process. Section 1 specified
election by “the people of the several States and the district constituting the seat of
government.” This provision recapitulated existing requirements of state residence
(or residence in the District of Columbia), and implicitly excludes Puerto Rico and
U.S. territories.18 Section 3 set a plurality, rather than a majority requirement for


17 U.S. Constitution, Article II, Section 1, clause 2: “Each State shall appoint in such Manner
as the Legislature thereof may direct [emphasis added], a number of Electors equal to the
whole Number of Senators and Representatives to which the State may be entitled in the
Congress....”
18 A number of election proposals in recent years have suggested that inhabitants of these
jurisdictions should also have the right to vote for President and Vice President, basedth
largely on the fact that they are U.S. citizens. See, for instance, H.J.Res. 109, 108 Congress
(introduced by Rep. Jesse Jackson, Jr. and others), which provided for election by “the
citizens of the United States, without regard to whether the citizens are residents of a state.”
For additional information on this proposal, please consult CRS Report RL32612, The
(continued...)

election. Section 4 established in the Constitution the joint candidacies currently
provided in state law.19 Section 5 empowered Congress to provide by law for: (1) the
death of candidates prior to election day; and (2) any tie vote in a presidential
election. This language appeared to give Congress broad authority in these
situations, extending to such options as rescheduling elections in case of candidate
vacancies that occurred close to election day, or providing for a second round
election, or election by Congress, in the event of a tie. It is less clear whether the
amendment would have made an implicit grant of authority to Congress to intervene
in the process of replacing party candidates under such circumstances, a process
which the parties historically have addressed through internal procedures. If so, this
would have constituted a considerable departure from current practice and political
tradition by empowering Congress to intervene in the internal workings of the
political parties.
Section 2 contained three elements relating to voter qualifications. First, it
specified that voters for President and Vice President “shall have the qualifications
requisite for electors of Senators and Representatives....” This sentence built on, and
explicitly extends to the presidential electorate, existing constitutional voter
qualifications stated in Article I, Section 2 (for the House), and the 17th Amendment
(for the Senate), and as further defined and guaranteed by the 14th, 15th, 19th, 24th, and
26th Amendments. Next, it empowered the states to set “less restrictive qualifications
with respect to residence....” In contemporary practice, most states have reduced
voting residence requirements to an average of 30 days. Since the states already
possess the power to reduce or eliminate these periods, this section may perhaps be
regarded as providing encouragement, admonishment, or a constitutional imprimatur
to efforts to adopt shorter residency requirements for voters, or to eliminate them
altogether. Finally, Section 2 sought to empower Congress to “establish uniform
residence and age requirements.” Here again, this provision would have constitute
a mandate for a potential expansion of congressional power. Voting residence
requirements, as noted previously, have been traditionally a state responsibility, but
the amendment would have vested in Congress authority to supersede state laws in
this area, at least for presidential elections. Similarly, Congress would have been
empowered by the amendment to establish a lower voting age for presidential
el ect i ons. 20
Section 6 of the proposed amendment set the time when it would come into
force if ratified, that is, for the first presidential election that occurred one year or
longer after the date of the amendment’s ratification. For instance, if the amendment
were successfully proposed by Congress, and ratified by the states in 2009, it would
be effective with the presidential election of 2012.


18 (...continued)
Electoral College: Reform Proposals in the 108th Congress, by Thomas H. Neale.
19 See footnote 5.
20 Although H.J.Res. 8 did not specify a vehicle by which Congress could effect these
changes, statute law seems to be the likely candidate. Since the amendment referred
explicitly to presidential elections only, a further constitutional amendment would probably
be required if these provisions had applied to other elections as well, such as those for state
and local elected officials.

H.J.Res. 8 was referred to the House Committee on the Judiciary on January 4, 2005,
and to its Subcommittee on the Constitution on March 2. No further action was
taken for the balance of the 109th Congress.
H.J.Res. 17.
H.J.Res. 17 was introduced on February 9, 2005 by Representative Eliot Engel,
and was cosponsored by Representatives Lane Evans, Barney Frank, Alcee Hastings,
and Michael McNulty. The amendment would have provided for direct popular
election of the President and Vice President, and also included various other election
administration provisions.
Section 1 proposed to establish direct popular election of the President and Vice
President by U.S. citizens. Its second sentence specified that U.S. citizens may vote
in a state without regard to whether they reside in the state so long as they were
registered in that state. The import of this sentence was not entirely clear; it did not
prohibit state residence requirements for voting registration, but it appeared to
supersede any residence requirement for the act of voting itself, at least in presidential
elections.
The first part of Section 2 would have established procedures for: (1) state
action on popular vote results; (2) transmission of returns to Washington; and (3) the
joint session of Congress at which the state returns would be counted and the
President and Vice President declared elected. This section would have superseded
existing statutory provisions governing electoral votes contained in 3 U.S.C. 2-18.
The second part of Section 2 would establish 40% of the popular vote as the
minimum required to win the presidency. If no joint ticket of candidates for
President and Vice President received at least this percentage, then the amendment
required a second election, contested by the two sets of candidates who received the
highest number of popular votes. This provision, which was intended to guarantee
that any person elected President had the support of a substantial plurality, if not a
majority, of the voters, was been included in many earlier reform proposals.
Section 3 would have required Congress to enact legislation that would: (1)
establish presidential election day as a national holiday; and (2) set national standards
for voting registration for the presidential elections. Both these provisions would
have broken new ground for federal involvement in elements of election
administration that have traditionally been the responsibility of state governments.
Proposals to establish election day as a legal public holiday have been discussed for
many years. Proponents argue that this would lead to higher voter participation rates,
while opponents assert: (1) that it would have only limited effect, since the holiday
would probably be observed primarily by public sector employees; (2) that there is
no guarantee that time off would promote turnout; and (3) that the costs to federal,
state, and local treasuries of a paid holiday would need to be weighed against any
benefit obtained.21 Proposals to establish national voter registration have also been


21 For further information, please consult CRS congressional distribution memorandum,
Making Election Day a Holiday or Moving Election Day to Saturday and Sunday: A Pro
(continued...)

considered in many Congresses over the years. Here again, this would arguably have
constituted a potential for further involvement in functions once performed almost
exclusively at the state level. On the other hand, the course of federal legislation over
the past 20 years may argue that this could be part of an evolving trend. For instance,
the Uniformed and Overseas Citizens Absentee Voting Act of 1986, the National
Voter Registration Act of 1993, and the Help America Vote Act of 2002 all
established national standards applicable to federal elections in the fields of voter
registration and election administration.22
Section 4 would have established a timetable for the amendment, which would
have become effective with the first presidential election held at least one year after
the effective ratification date of the amendment.
Section 5, defined the term “state” as including “the several States, the District
of Columbia, and any other Commonwealth, territory, or possession of the United
States.” This section would thus have expanded the presidential vote to include such
U.S. territories as Guam and the U.S. Virgin Islands, as well as the Commonwealth
of Puerto Rico. It also arguably intended that the proposed amendment extend
presidential voting to American Samoa, which is also a U.S. territory, and to the
Commonwealth of the Northern Mariana Islands, which is in political union with the
United States. It should be noted, however, that the inhabitants of American Samoa
are U.S. nationals, rather than citizens, and the inhabitants of the Commonwealth of
the Northern Marianas can be either U.S. nationals or U.S. citizens.
H.J.Res. 17 was referred to the House Committee on the Judiciary on February

9, 2005. No further action was taken for the balance of the 109th Congress..


H.J.Res. 36.
H.J.Res. 36 was introduced on March 2, 2005, by Representative Jesse L.
Jackson, Jr., and was cosponsored by Representatives Lloyd Doggett, Barney Frank
and Fortney Pete Stark. Section 1 of the proposed amendment sought to provide for
direct popular election of the President and Vice President, by the “citizens of the
United States,” specifying a single vote for a joint candidacy for those offices. It
further specified that the election shall be conducted “without regard to whether the
citizens are residents of a state.” The implications of this latter provision were
arguably substantial. For instance, it could be interpreted to require that state and
local election authorities accept the vote of any person who could prove citizenship


21 (...continued)
and Con Analysis, by Kevin J. Coleman. Available to Members of Congress and
congressional staff from the author.
22 For further information, please consult CRS Report RS20764, The Uniformed and
Overseas Citizens Absentee Voting Act: Background and Issues, by Kevin J. Coleman; CRS
Report RL31105, The National Voter Registration Act of 1993: History, Implementation,
and Effects, by Government and Finance Division: and CRS Report RL32685, Election
Reform: The Help America Vote Act and Issues for Congress, by Eric A. Fischer and Kevin
J. Coleman.

status, without regard to existing residence or voter registration requirements, thus
superseding these systems.
Section 2 specified that the candidates who jointly receive the greatest number
of votes shall be elected, provided that number is a majority. In this provision the
proposed amendment differs from many direct election proposals; these more
commonly require a 40% plurality, or a simple plurality, to win (see H.J.Res. 17).
While establishing this majority requirement, H.J.Res. 36 omits any procedures for
cases in which a majority is not obtained. The lack of such procedures could present
problems in presidential elections wherein no candidate wins a majority.23 On the
other hand, Section 3 could arguably provide for such situations, and various others,
as it would empower Congress to “enforce and implement this article by appropriate
legislation.” This relatively broad legislative mandate could arguably be interpreted
to include such non-majority elections, and other eventualities.
Section 4 would have established a timetable for the amendment, which would
become effective with the first presidential election held at least one year after the
effective ratification date of the amendment.
H.J.Res. 36 was referred to the House Judiciary Committee on March 2, 2005.
No further action was taken during the balance of the 109th Congress.
H.J.Res. 50.
H.J.Res. 50 was introduced on May 12, 2005 by Representative Zoe Lofgren;
Representatives Jim McDermott, Fortney Pete Stark, Jose E. Serrano and Lynn C.
Wolsey joined as co-sponsors on the same day.
Section 1 of the resolution would have provided for election of the President by
the people of the several states and the District of Columbia.
Section 2 would have established voter qualifications similar to those set by the
Constitution for the House of Representatives, i.e., those who are eligible to vote for
“the most populous branch of the legislature of the State....” The section also went
further, however, by empowering Congress to establish uniform age qualifications
to vote. This language would give Congress authority to change the voting age for
the presidency by law.
Section 3 sought to incorporate the longstanding practice of joint presidential
candidacies for into the Constitution, thus eliminating the potential for a President
and Vice President of different parties or political groups. It also would have
eliminated one of the more archaic features of the electoral college system by
removing the prohibition against voting for only one candidate who might be from
the same state as the elector. This provision was originally included in the


23 For instance, in four of the 12 elections held between 1960 and 2004, Presidents were
elected with a plurality, but not a majority, of the popular vote (1960, 1968, 1992, and
1996). America Votes 23: A handbook of contemporary American election Statistics
(Washington: CQ Press, 2001), pp. 9, 13, 17.

Constitution24 to discourage presidential electors from voting for candidates only
from their own states. The founders’ intent here was to encourage, or rather require,
electors to broaden their horizons to consider candidates from other parts of the
nation, and is best understood in the context of the time. When the Constitution was
written, there was little national political consciousness or community, and beyond
George Washington, the “indispensable man,” there were few, if any, nationally
known political figures. The original language, as supplanted by that of the 12th
Amendment, has generally been regarded as obsolete for many years, and this
provision of Section 3, although it applies to voters, rather than presidential electors
under the electoral college system, could be described as a minor perfecting change.
Section 4 would have established a simple plurality of popular votes as
sufficient to elect. It makes no provision for vote threshold, or for a runoff election,
although Section 6 would empower Congress to provide by law for procedures in the
event of a tie vote.
Using language identical to that found in Article 1, Section 4, clause 1 of the
Constitution concerning congressional elections, Section 5 of the proposed
amendment sought to empower Congress to provide for the “times, places, and
manner of holding such [presidential] elections....” This would supersede the
existing language of Article I, Section 1, clause 5, which empowers Congress to
“determine the Time of chusing the Electors, and the Day on which they shall give
their Votes; which Day shall be the same throughout the United States.”25 Arguably,
the most important element of the proposed language was contained in the word
“manner,” which could be interpreted to include an exceptionally wide range of
activities.
It could be argued that the changes proposed in Section 5 would have provided
a necessary symmetry, giving Congress identical authority over both congressional
and presidential elections, and again, that a broad national authority is required to
administer a national election, insuring uniformity and equality of election rules and
regulations in order to guarantee the fairest and most accurate expression of the
public will. Opposition would have likely centered, again, on charges this provision
would lead to the usurpation of traditional state and local functions; that, contrary to
the above assertion, a “one size fits all” approach is not appropriate for a federal
republic that embraces 50 different states and a federal district; and that a further
potential outcome would be the imposition of costly “unfunded” mandates on the
states and local governments.


24 “The Electors shall ... vote by ballot for President and Vice President, one of whom, at
least, shall not be an inhabitant of the same state with themselves: ...” U.S. Constitution,th

12 Amendment. The language here is identical to that found in the original at Article II,


section 1, clause 3 of the Constitution.
25 The question of congressional authority over federal elections is discussed at greater
length in CRS Report for Congress RL30747, Congressional Authority to Standardize
National Election Procedures, by Kenneth R. Thomas. Interestingly, this report notes, in
pages 3-6, recent court decisions concerning the Help America Vote Act (HAVA, P.L. 107-

252) that suggest Congress already possesses this power.



In addition, Section 5 would also have provided Congress the additional
authority to determine “entitlement to inclusion on the [presidential general election]
ballot.” This provision could arguably have resulted in a further expansion of federal
authority into an area traditionally left to the states. The states, through their
legislatures, have controlled ballot access on all levels since the earliest years of
organized political parties, and they have been criticized for almost as long on the
grounds that the legislatures enact laws that favor established parties at the expense
of new or minor parties and independent candidates. Although ballot access
requirements for such candidates have eased in recent decades,26 existing
arrangements were criticized by proponents of the Perot candidacy in 1992, and by
supporters of Ralph Nader’s two recent presidential bids, in 2000 and 2004.
Supporters of this proposal and others like it could argue that, here again, a
federal standard is required to insure that existing minor parties, new parties, and
independent candidates for the presidency are fairly represented on the ballot for our
only national election. A broader range of choices, they might suggest, would
stimulate public interest in and debate on policy alternatives, leading to a more
engaged national electorate, and increased voter turnout. Conversely, opponents
could raise arguments against congressional interference in what has traditionally
been a state and local responsibility. A single standard for ballot access, they might
argue, would be awkward and perhaps unworkable in a nation with such diverse local
political traditions and cultures. It would enhance national power at the expense of
the federal principle, and, as noted earlier, would lead to the imposition of
“unfunded” mandates on the states and local governments. Finally, they might
suggest that Congress, like the state legislatures, is also dominated by the two major
parties, and it, too might be influenced to use power over ballot access to
discriminate against — or in favor of — different groups for political purposes.
Another interesting point in connection with Section 5 of H.J.Res. 50 was the
particular language similar to that of H.J.Res. 8 granting Congress authority over “the
times, places and manner of holding such elections and entitlement to inclusion on
the ballot”. It stated that all these objects “shall be determined by Congress
[emphasis added]”, rather than the more common formulation “Congress shall
provide by law [emphasis added]....” The appropriate vehicle would seem to be
public law, but the question could be raised as to the intent and implications of this
wording: was the difference inadvertent or intentional? If so, could it be interpreted
to provide some vehicle other than public law by which Congress could exercise
these powers?
Section 6 would have given Congress the power to provide by law for instances
in which any candidate died or was disqualified before the election, or if there were
a tie in the popular vote. The former provision, if exercised, could have affected
existing party procedures for filling vacancies on the ballot prior to the election.27


26 The1980 independent candidacy of Rep. John B. Anderson, in particular, resulted in a
range of court decisions striking down some of the more stringent state requirements.
27 For additional information on these procedures, consult CRS Report RL32969,
Presidential Succession: An Overview with Analysis of Legislation Proposed in the 109th
(continued...)

Here again, the language appeared to give Congress broad authority in these
situations, extending to such options as rescheduling elections in case of candidate
vacancies that occurred close to election day, or providing for a second round
election, or election by Congress, in the event of a tie. As noted above, it is less clear
whether the amendment would have made an implicit grant of authority to Congress
to intervene in the process of replacing party nominees under such circumstances, a
process which the parties historically have addressed through internal procedures.
If so, this would have constituted a considerable departure from current practice and
political tradition by empowering Congress to intervene in the internal workings of
the political parties.
Section 7 was technical, prescribing that the amendment would be effective
“one year after the first day of January following ratification.”
H.J.Res. 50 was referred to the House Committee on the Judiciary on May 12,

2005. No further action was taken during the balance of the 109th Congress.


S.J.Res 11.
S.J.Res. 11 was introduced by Senator Dianne Feinstein on March 16, 2005, and
has been cosponsored by Senator Barbara Boxer. Section 1 of this proposal sought
to establish direct popular election of the President and Vice President, eliminating
the electoral college system.
Section 2 would have established the same voting qualifications for President
as for Representative in Congress, in effect citizens 18 years of age or older. The
section continued with language almost identical to that of H.J.Res. 8, allowing the
states to set “less restrictive” residence qualifications, and also empowering Congress
to establish uniform residence and age qualifications for voters in presidential
elections. Here again, this language would have offered the potential for a
considerable expansion in federal authority over aspects of election previously
exercised by the states. As noted previously in this report, most states have reduced
voting residence requirements to an average of 30 days. Since the states already
possess the power to reduce or eliminate these periods, this section may perhaps be
regarded as providing encouragement, admonishment, or a constitutional imprimatur
to efforts to adopt shorter residency requirements for voters, or to eliminate them
altogether.
Finally, Section 2 also empowered Congress to “establish uniform residence and
age requirements.” This provision would have constituted a mandate for a potential
broad expansion of congressional power. Voting residence requirements, as noted
previously, have been traditionally a state responsibility, but the amendment would
have vested in Congress authority to supersede state laws in this area, at least for
presidential elections. Similarly, Congress would have been empowered by the
amendment to establish a lower voting age for presidential elections. Section 2’s last


27 (...continued)
Congress, by Thomas H. Neale. See especially under “Succession During Presidential
Campaigns and Transitions.”

sentence sought to empower Congress to establish qualifications for voters in the
“district constituting the seat of government of the United States,” that is, the District
of Columbia. This provision would not have added to Congress’s powers, since
Article I section 8 of the Constitution already establishes congressional authority “To
exercise exclusive Legislation in all Cases whatsoever” over the seat of government.
Section 3, in its first sentence, would have confirmed and enhanced
congressional authority over scheduling for presidential elections, giving it the power
to determine the “time, place, and manner” of holding such elections, language
similar to that governing elections for Representatives and Senators. Also, existing
language in Article 2, section 1, clause 4 of the Constitution currently states, “The
Congress may determine the Time of chusing the Electors and the Day on which they
shall give their Votes; which Day shall be the same throughout the United States.”
This section of the proposed amendment would also have empowered Congress
to regulate the process of counting votes and declaring the results in law. Of these
two functions, the former has traditionally been performed in the states and localities
according to state requirements. The grant of authority in this case would have
enabled Congress to establish by law uniform requirements for vote tabulation, and,
by extension, for challenges, recounts, and other related activities.
Two points are suggested here. First, as noted elsewhere in this report,
legislation establishing broader federal control over the election administration
process might be criticized both as an unfunded federal mandate, as well as an
intrusion into responsibilities traditionally performed at the state and local level. A
second point is that the amendment, if ratified, would cover only elections for
President and Vice President, leaving the potential for a cumbersome two-tiered
structure of election laws and practices, one for presidential elections, and another
for congressional, state, and local contests. In response, it could be argued that
presidential elections are the ultimate expression of the voters’ will in the United
States, and that they are properly regulated at the federal level. Moreover, such
arguments could continue, the recurrence of election irregularities or allegations of
irregularities in 2004 make a compelling case for a simple, nationwide process to
govern this most important exercise in democratic self rule. With respect to a two-
tiered system of election administration, such a cumbersome and costly structure
would almost certainly be avoided by states, which would likely conform their
practices to those enacted by Congress.
Finally, it could be noted that this and other arguably controversial grants of
potential authority over election administration to Congress could only be
accomplished “by law,” a requirement that brings into play all the time-honored
elements of the nation’s system of legislative checks and balances.
Section 4 would have established within the Constitution the longstanding
practice of joint candidacies for President and Vice President. As noted elsewhere
in this report, this would prevent the anomaly of a President and Vice President of
different parties. In the interests of uniformity, the section also required that the same
two candidates would appear as a team on the ballot in every state.



Section 5 of the proposed amendment also followed the example set in H.J.Res.
8. It would have empowered Congress to provide, again by law, for the death of any
candidate, or for a tie vote in the election. Here again, as noted earlier in this report,
this language arguably appeared to give Congress broad authority in these situations,
extending to such options as rescheduling elections in case of candidate vacancies
that occurred close to election day, or providing for a second round election, or
election by Congress, in the event of a tie. It is less clear whether the amendment
would have made an implicit grant of authority to Congress to intervene in the
process of replacing party candidates under such circumstances, a process the parties
historically have addressed through internal procedures. If so, this would have
constituted a considerable departure from current practice and political tradition by
empowering Congress to intervene in the internal workings of the political parties.
Section 6 included standard language providing that the amendment would
come into force one year after “the twenty-first day of January following ratification.”
S.J.Res. 11 was read twice in the Senate on March 16, 2005, and immediately
referred to the Senate Committee on the Judiciary. No further action was taken
during the balance of the 109th Congress.
Concluding Observations
Trends in Electoral College Reform Proposals.
Although the volume of electoral college reform proposals introduced has
remained generally steady over the past several Congresses, two trends are noticeable
to the long term observer. First, the volume of proposed amendments that would
reform the electoral college, as opposed to those that would eliminate the electoral
college and substitute direct popular election, has declined almost to zero. Second,
the scope of proposed direct popular election amendments is arguably evolving in
the direction of greater complexity and detail.
It is unclear whether the first development reflects a decline in support for the
electoral college (either as it exists or reformed), a lack of organized interest in these
reform proposals, or simply the absence of a sense of urgency on the part of Members
who might be inclined to support or defend the current system in some form. It is
arguable, indeed likely, that, if a direct election amendment gained broad
congressional support and began to move through Congress toward proposal to the
states, Members who support the current system in some form would coalesce in ad
hoc groups to defend the electoral college. Alternatively, they might be spurred by
the prospect of action to propose reform measures. This was the case the last time
a direct election amendment came to the floor (in the Senate), during the 95th
Congress (1979-1980).28


28 For an account of action in both the 94th and 95th Congresses, consult Neal R. Peirce and
Lawrence P. Longley, The People’s President: The Electoral College in American History
and the Direct Vote Alternative, rev. ed. (New Haven, CT: Yale University Press, 1981),
pp. 198-206

Another apparent trend is that more recent reform proposals go beyond the
concept of simply substituting direct election for the electoral college. In the past
two to three Congresses, these amendments have been more likely to include
provisions that would enhance and extend the power of the federal government to
regulate in such areas as residence standards, definition of citizenship, national voter
registration, inclusion of U.S. territories and associated areas in the presidential
election process, establishment of an election day holiday, ballot access standards for
parties and candidates, etc.29 This trend almost certainly reflects frustration on the
part of many voters and their elected representatives over the uncertainties and
inconsistencies in local election administration procedures that were revealed in the
2000 and 2004 presidential elections. If the amendments in which such proposals
have been incorporated were proposed and ratified, they could be used to set broad
national election standards (provided such legislation were enacted) which would
supersede many current state practices and requirements.
This eventuality raises two possible issues. The first is the question of whether
such federal involvement in traditionally state and local practices would impose
additional costs on state and local governments, and thus be regarded as an
“unfunded mandate.” One response by the state and local governments might be to
call for federal funding to meet the increased expenses imposed on them by federal
requirements. Precedent for this exists in the grant program incorporated in HAVA.
A second issue is related, and centers on perceptions as to whether such an
amendment would be regarded as federal intrusion into state and local
responsibilities. For instance, a more far-reaching scenario might include the gradual
assumption of the entire election administration structure by the federal government.
In this hypothetical case, questions could be raised as to: (1) the costs involved; (2)
whether a national election administration system could efficiently manage all the
varying nuances of state and local conditions; and (3) under these circumstances,
what would be the long term implications for federalism? Conversely, it could be
argued that a national election administration structure is appropriate for national
elections, and that state or local concerns are counterbalanced by the urgent
requirement that every citizen be enabled and encouraged to vote, and that every vote
should be accurately counted.
Prospects for Change in the Contemporary Context.
Some observers assumed that action of the electoral college in 2000, in which
George W. Bush was elected with a slight majority of electoral votes, but fewer
popular votes than Al Gore, Jr., would lead to serious consideration of proposals to
reform or eliminate the electoral college. Notwithstanding these circumstances,
however, none of the proposals introduced in either the 107th through 109th
Congresses received more than routine committee referral.30 In the 107th Congress,
attention focused on proposals for election administration reform, resulting in


29 See, for instance, H.J.Res. 17and S.J.Res. 11, above, and H.J.Res. 103 and H.J.Res. 109
in the 108th Congress.
30 For further discussion of the hurdles faced by electoral college reform proposals, see CRS
Report RL30844, The Electoral College: Reform Proposals in the 107th Congress, by
Thomas H. Neale.

passage of the Help America Vote Act (P.L. 107-252, 116 Stat. 1666) in 2002. This
legislation, as noted earlier in this report, substantially extended the role of the
federal government in the field of voting systems and election technology through the
establishment of national standards in these areas and the provision of aid to the
states to improve their registration and voting procedures and systems.31
Other factors may also contribute to the endurance of the electoral college
system. Perhaps foremost is the fact that the U.S. Constitution is not easily amended.
Stringent requirements for proposed amendments, including passage by a two-thirds
vote in each chamber of Congress, and approval by three-fourths of the states,
generally within a seven-year time frame, have meant that successful amendments
are usually the products of broad national consensus, a sense that a certain reform is
urgently required, or active long-term support by congressional leadership.32 In many
cases, all the aforementioned factors contributed to the success of an amendment.33
Further, while the electoral college has always had critics, its supporters can note that
it has ratified the people’s choice in 47 of 51 presidential elections held since
ratification of the 12th Amendment, a success rate of 92.2%.34
In the final analysis, given the high hurdles — both constitutional and political
— faced by any proposed amendment, the electoral college system seems likely to
remain in place unless or until its alleged failings become so compelling that large
concurrent majorities in Congress, the states, and among the public, are disposed to
undertake its reform or abolition.


31 For additional information on the Help America Vote Act, please CRS Report RL23685,
Election Reform: The Help America Vote Act and Issues for Congress, by Eric A. Fischer
and Kevin J. Coleman.
32 Article V of the Constitution also provides for amendment by a convention, which would
assemble on the application of the legislatures of two-thirds of the states. Any amendments
proposed by such a convention would also require approval of three-fourths of the states.
This alternative method, however, has never been used.
33 These conditions have been met in some cases only after a long period of national debate;
for example, the 19th Amendment, which extended the right to vote to women, was the
culmination of decades of discussion and popular agitation. In other instances, amendments
have been proposed and ratified in the wake of a sudden galvanizing event or series ofth
events. An example of this may be found in the 25 Amendment, providing for presidential
succession and disability, which received a tremendous impetus following the 1963
assassination of President John F. Kennedy.
34 The exceptions, as noted earlier, were the elections of 1876, 1888, and 2000, when
candidates were elected who had a majority of electoral votes, but fewer popular votes than
their major opponents. The one case in which the electoral college was hopelessly
deadlocked occurred in 1824, when contingent election resolved an electoral college
deadlock. Even in this case, the President, John Quincy Adams, was able to govern
successfully, despite criticism that he was selected in the House of Representatives.