Abolishing the Electoral College by Stealth
A group called Campaign for the National Popular Vote has been pushing a plan to essentially do away with the Electoral College without amending the Constitution. I read about it in The New Yorker a while back and it’s apparently gaining some steam. Basically, they want the president to be the winner of the most votes nationwide rather than the current Electoral College system but realize that the interests of the states would not allow a constitutional amendment to pass. They have come up with a work-around:
A federal constitutional amendment (requiring two-thirds of Congress and 38 states) is not required to change the state laws that currently specify use of the winner-take-all rule. Nationwide popular election of the President can be implemented if the states join together to pass identical state laws awarding all of their electoral votes to the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia. The proposed state legislation would only come into effect only when it has been enacted, in identical form, by enough states to elect a President—that is, by states possessing a majority (270) of the 538 electoral votes.
The U.S. Constitution establishes a legal vehicle for the proposed coordinated state action, namely the “interstate compact.” Examples of existing interstate compacts include the Colorado River Compact (which divides water among seven western states) and the Port Authority of New York and New Jersey (a two-state compact). Interstate compacts are enacted by states in the same way they enact ordinary legislation. It is settled constitutional law an interstate compact is legally enforceable contractual obligation among the states belonging to the compact and all of their officials.
Jason Smith notes that this plan has been supported by numerous op-eds in the mainstream press and thinks it is motivated, not by a sense of fairness but rather frustration by Democrats at being unable to win in the current system.
Democrats still can’t get over the 2000 election. Despite losing the subsequent mid-term and Presidential elections, they still feel that they are owed something. And just like they tried to do during the 2000 election, they’re now trying to change the rules in hopes of overcoming their shortcomings with voters.
It’s simply a plan to circumvent our historical electoral process, sidestep a Constitutional amendment and bypass the rights of citizens in an attempt to obtain political power and control.
NRO’s Tara Ross agrees, wondering,
If getting rid of the Electoral College is such a great idea, then why do its proponents seem to want to bypass the people in enacting it? If it is such a great idea, and one that will serve our interests, why not go national with their case? Apparently they’re not so into voting after all.
Well, they’re for majoritarian rule, not federalism. Technically, there is nothing extra-constitutional about NPV. The Constitution gives state legislatures absolute authority to allocate their Electors as they wish. Indeed, in the earliest days, they simply appointed Electors with instructions to vote for a specific presidential and vice presidential candidate. It was decades before the westward expansion created a groundswell for elections.
What evolved was really a bastardization of the Electoral College. Rather than the state legislators appointing delegates, they simply rubber stamped the election results and handed the power over to a slate of delegates chosen by the winning political party. And Electors are free to vote for whomever they chose. As recently as the 2000 election, a faithless District of Columbia Elector denied her vote to Al Gore out of pique, rubbing additional salt into his wounds. Further, two states, Maine and Nebraska, have a hybrid system wherein two Electors (matching the Senate delegation) are awarded to the at-large winner in the state and the others are awarded to the winner in each of the congressional districts.
So, the NPV system is perfectly constitutional. Essentially, state legislators agree to award their Electors to the national popular vote winner once enough states have made the same agreement to provide 270 Electoral Votes. Until then, their current allocation method–or a substitute one of their own chosing–would remain in effect. There is simply no question that they have the right to do this.
As to whether it would be a good idea, Ross argues,
The Electoral College encourages presidential candidates to build national coalitions of voters. The compromises that a presidential candidate would have to make to obtain the votes of, say, California and Texas, guarantee that any candidate who manages to obtain the votes of the eleven largest states will also obtain the votes of a majority of states. The last presidential candidate to accomplish this feat was Reagan in 1984, and he obtained the votes of every state except Minnesota. (He also lost the District of Columbia.)
NPV’s legislation, on the other hand, does not ensure national coalition building. To the contrary, the proposal gives the eleven largest states incentives to work against the remaining states: Getting rid of the Electoral College would allow presidential candidates to win with positions that are not at all in the interest of less populous states. To be sure, and as NPV points out, candidates now focus largely on battleground states, but the only reason other states aren’t battlegrounds is because they are, by and large, happy with one of the candidates positions. Moreover, so-called “safe” and “swing” states change constantly. As recently as 1988, California voted consistently Republican. Texas was a safe Democrat state until it began voting Republican in 1980.
I tend to agree that the current system causes coalition building moreso than a pure popular vote would. On the other hand, it also creates apathy in the vast number of states that are locks for one party or the other. Certainly, there is no incentive for a Republican in the District or a Democrat in Utah to vote for president.
The current system also causes campaigns to bypass huge states. There is no reason to campaign in California, Texas, or New York. Sure, candidates make token appearances for the sake of fundraising, but the outcomes there are so assured that it simply makes more sense to focus one’s efforts in the so-called Battleground States, especially big prizes like Florida and Ohio.
It is not at all clear that shifting plans advantages one party or the other. For one thing, it takes an incredible confluence of events for a candidate to win the necessary 270 Electoral Votes and not also be the plurality winner in the national popular vote. Indeed, George W. Bush in 2000 is the only man to do so in the modern era. We came reasonably close a few other times, as shifts of a few thousand votes in a handful of states could have reversed the outcome in 1960, 1976, and 2004.
Sure, the proposed system would have handed Al Gore the presidency in 2000 but many of us thought that the opposite outcome, Bush winning the popular vote but Gore winning the Electoral vote, was quite possible. After all, the Democratic candidate currently is virtually assured of all of California’s massive Electoral slate. On the other hand, the current system would have given Kerry the win had he won another few thousand votes in Ohio, even though Bush’s national margin of victory was quite comfortable.
Changing demographics will also alter the game in ways there are not entirely clear. The massive influx of Hispanics changed California from a solid Republican to a solid Democrat state. Florida is becoming bluer by the day owing to both an increasing non-Cuban Hispanic population and the migration of retirees from Blue States. And even the Deep South, especially the Carolinas and Georgia, are unlikely to remain safe Republican for long. Then again, other factors could make states that are now safely Blue turn Red.
After 2000, there was a groundswell to change the system. The only reason it didn’t happen is that amending the Constitution is incredibly difficult and a significant number of states are advantaged by the current system. The small states get a ridiculous advantage because they are guaranteed three Electors while the very large states are rendered very powerful by block voting.
The extent to which we are a collection of States at this point in our history is murky. I don’t really think of myself as a Virginian, even though I was born here and have resided here the last three-plus years. And increasing number of us are in that boat, as we move around for various reasons. I’m not at all sure, therefore, that it really makes sense anymore to vote as if we live in fifty sovereign territories united only for national defense and commerce.