By Donald Scarinci | September 5th, 2012 - 2:50pm
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Between political party conventions, former Vice President Al Gore is in the news.  However, he’s not campaigning for Barack Obama; he is campaigning for doing away with the Electoral College in favor of elections determined solely by popular vote.

The Electoral College is a remnant from the earliest days of the constitution before President Andrew Jackson when members of Congress voted for President, not the people.  The Electoral College was a compromise by our founding fathers between giving Congress the power to elect the President and resting the power solely with the American people.

Under our current election system, the candidate who wins 270 or more Electoral College votes is elected President, not the candidate who receives the majority of the votes cast by the voting public. However, electoral votes are allocated based on the results of the popular vote in each state. Each state has a designated number of electors, which is determined by the numbers of members its sends to Congress. Like all but two states, New Jersey has a “winner-take-all” system under which all of a state's 14 electoral votes are awarded to the candidate receiving the most popular votes.

Of course, Gore isn’t the first person to suggest that our election system is in need of some revamping. According to the U.S. Electoral College, “Over 700 proposals have been introduced in Congress to reform or eliminate the Electoral College. There have been more proposals for Constitutional amendments on changing the Electoral College than on any other subject.”

Critics of the Electoral College maintain that the current system used in most states, which awards all of a state’s electoral votes to the one candidate receiving the most votes, places too much emphasis on swing states. This year, many are predicting that the election will come down to seven to nine states, leaving states like New Jersey that are traditionally either red or blue largely out of the picture. Limiting the power of the Electoral College, they argue, would ensure that the votes cast in every state will matter in every presidential election.

Traditionalists, of course, argue that an electoral system that has been in place since the founding of our country should not be eliminated, essentially arguing “if it ain’t broke, don’t fix it.” As they see it, there have only been four instances where the candidate who won the popular vote did not also win the electoral vote.

Several states, including New Jersey, have attempted to abolish the power of the Electoral College. In 2008, New Jersey joined a compact among several states to award the state’s electoral votes to the winner of the national popular vote. However, the National Public Vote Bill would take effect only when enacted by states possessing a majority of the electoral votes, the same number needed to elect the President (270). The bill is currently nearly half way there, with 49% of the votes needed.

Unfortunately, in order to see a real push towards a true popular voting system, we may need something bigger and more controversial than the results of the 2000 Presidential election.  If PolitickerNJ columnist Alan Steinberg’s’ predictions become reality and if the popular vote heavily favors President Obama as the early poll numbers predict, it could cause a constitutional crisis over the Electoral College.

Donald Scarinci is a managing partner at Lyndhurst, N.J.-based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government & Law blogs.

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