I’m teaching a Birch Bayh seminar this semester. Naturally, Electoral College reform was discussed, as that was one of his signature ideas. In that discussion, I was struck by the following thought.
The Electoral College rests on an unspoken premise that states will allocate their presidential electors in more or less the same way. Sure, two states don’t. But that’s tolerable or even charming. Imagine, though, that every state used a different rule for electoral allocation. This would make the system impossible for anyone to understand. Thus, we have federalism in the Electoral College in only a limited way. Too much federalism is intolerable for a national election.
A contingent election in the House of Representatives is another example. Each state gets one vote. That’s a very strong form of federalism. People hate that idea now. Indeed, peak electoral college reform came after the 1968 election, which was the last one to present a real prospect of a contingent election due to George Wallace’s third-party candidacy. (Aside from the dreaded 269-269 tie scenario.)
The point is that the Electoral College is a complex mix of state and federal law.