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.

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James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. McGehee says:

    I’m not so sure that a system that forces candidates to campaign everywhere is desirable — it would cause the cost of campaigning to skyrocket, with all the consequent whining about “too much money in politics” that one should expect from … pretty much the same people who are pushing this idea.

  2. Dave Schuler says:

    Frankly, I’m not too worried either way, James. There’s nothing in the DNA of Hispanic voters that will make them permanent supporters of the Democratic Party however much current party activists might wish that were true. However, I think there’s something in the intrinsically elitist Fordist policies of today’s national Democratic Party that is allergic to populism and over time that’s working against the national Democratic Party.

  3. RJN says:

    I think the present system, in that it respects states rights, should be kept. We have enough disrespect for the interior states as is, taking away more would be bad news for individual liberty.

  4. The biggest advantage of the electoral college is that it discourages fraud. Fraud is most likely to occur in jurisdictions where one party is vastly dominate over the other.

    Thanks to the electoral college, though, fraud in such places doesn’t effect the election outcome. Since the party has already won that state’s electoral votes, no number of fraudulent votes can help the candidate get more.

    The only place where fraud will change the outcome is in states where the parties are evenly divided and fraudulent votes could flip the state from one party to the other. And that is precisely the states were it is hardest for one party to get away with something without the other party finding out and quashing it.

    If we switched to a pure popular votes, strongly partisan states would get into a race to see which could stuff the ‘national ballot box’ the most for their particular side.

  5. Another issue with the proposal is how do we define the national vote count? There is, right now, no official national counts and indeed many states don’t fully count their votes.

    California, for instance, doesn’t count their absentee ballots is the margin in the general election exceeds the number of absentee ballots. In an winner takes all electoral system, this makes sense, since the counting would be wasted effort. If other states are counting on CA’s count as part of a ‘national popular vote count’ though, this becomes important.

    As an example, in 2000 CA left nearly 2 million absentee ballots uncounted. Since Gore won CA by nearly 4 million votes, this didn’t affect the election results. It is, however, much largely than Gore’s national margin, so the common assertion that Gore won the popular vote could be completely wrong.

    Now suppose Ohio was, in 2000, using this proposed national popular vote proposal and California was not. They have no way of making CA count the extra votes. They have no way of determining the actual popular vote count. So how do they determine which way to vote?

  6. James,

    How can this be constitutional? I don’t dispute that States can allocate their votes in whatever way they choose, on their own, but this deal requires a compact among States, and Congress must approve it:

    No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

    Article 1, Section 10 of the constitution. The pact among the States would be unconstitutional until Congress approves.

  7. Related to your last paragraph: I’ve said a few times in the past couple of years that the only reason we still have states is college football.

  8. ICallMasICM says:

    ‘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.’

    No sh%t Sherlock. It’ll be like the 2000 elction – they’ll just want proportional voting in Red states and they’ll want to be able to change it after the votes come in.

  9. James Joyner says:

    Robert,

    This isn’t a provision I’ve studied. FindLaw’s Annotated Constitution (which shows how the courts have “amended” the Constitution over the years) says only this about that section:

    At the time of the Civil War, this clause was one of the provisions upon which the Court relied in holding that the Confederation formed by the seceding States could not be recognized as having any legal existence. 1797 Today, its practical significance lies in the limitations which it implies upon the power of the States to deal with matters having a bearing upon international relations. In the early case of Holmes v. Jennison, 1798 Chief Justice Taney invoked it as a reason for holding that a State had no power to deliver up a fugitive from justice to a foreign State. Recently, the kindred idea that the responsibility for the conduct of foreign relations rests exclusively with the Federal Government prompted the Court to hold that, since the oil under the three mile marginal belt along the California coast might well become the subject of international dispute and since the ocean, including this three mile belt, is of vital consequence to the nation in its desire to engage in commerce and to live in peace with the world, the Federal Government has paramount rights in and power over that belt, including full dominion over the resources of the soil under the water area. 1799 In Skiriotes v. Florida, 1800 the Court, on the other hand, ruled that this clause did not disable Florida from regulating the manner in which its own citizens may engage in sponge fishing outside its territorial waters. Speaking for a unanimous Court, Chief Justice Hughes declared; ”When its action does not conflict with federal legislation, the sovereign authority of the State over the conduct of its citizens upon the high seas is analogous to the sovereign authority of the United States over its citizens in like circumstances.” 1801

    ——–

    [Footnote 1797] Williams v. Bruffy, 96 U.S. 176, 183 (1878).

    [Footnote 1798] 39 U.S. (14 Pet.) 540 (1840).

    [Footnote 1799] United States v. California, 332 U.S. 19 (1947).

    [Footnote 1800] 313 U.S. 69 (1941).

    [Footnote 1801] Id., 78-79.

    I know states enter into agreements with one another all the time, such as Alabama-Florida-Georgia over river use and Virginia-DC-Maryland over various transportation issues. I don’t know whether they have to be ratified by Congress.

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