National Popular Vote Initiative Passes in Mass.

Massachusetts becomes the latest state to join in the National Popular Vote initiative.

Via the BoGloMass. Legislature approves plan to bypass Electoral College

The Massachusetts Legislature has approved a new law intended to bypass the Electoral College system and ensure that the winner of the presidential election is determined by the national popular vote.

What this is is that National Popular Vote initiative, which is an attempt to use the fact that states have the constitutional right to determine how electoral votes are cast (see Article II, Section 1) to move to a system in which electoral votes are allocated based on the national popular vote, rather than on the state-level popular vote.

The initiative has a web site, which describes the process as follows:

Under the U.S. Constitution, the states have exclusive and plenary (complete) power to allocate their electoral votes, and may change their state laws concerning the awarding of their electoral votes at any time. Under the National Popular Vote bill, all of the state’s electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538).

It is an attempt to shift the election of the president to being based on the national popular vote, but still within the framework of the electoral college.

Massachusetts is the latest state to pass such a bill.

Two observations from the BoGlo piece that are vested in accuracy and not advocacy (one way or another) regarding the bill.

First:

Senate minority leader Richard Tisei said the state was meddling with a system that was “tried and true” since the founding of the country.

This is not an accurate statement (although it is a sentiment shared by many, I suspect).  The fact of the matter is that the electoral college never functioned as intended and, further, it has not functioned in the same form over the years.

The founders basically thought that the electoral college would function as a nominating body, with the House ultimately deciding contests on a regular basis (a process outlined in Article II, Section 1).  The belief was that after Washington there would be no candidate with a sufficient national following to win a majority of electoral votes, but that instead that multiple regional candidates would split the vote, leading to the need for the House to select from the top three electoral vote-getters.

However, this isn’t what happened.  Indeed, the fact that the system failed to work properly in the election of the third president (Jefferson) led to one of the early amendments of the constitution (the XIIth).  Further, the system was originally one in which the electors were not chosen by popular vote—that was an evolutionary step that didn’t take hold until well into the 19th century).  As such, the notion that the system has functioned in exactly the same form since the founding is incorrect.

Second:

Tisei also criticized the proponents for not following the normal procedures to seek a constitutional amendment.

“The thing about this that bothers me the most is it’s so sneaky. This is the way that liberals do things a lot of times, very sneaky,” he said. “This is sort of an end run around the Constitution.”

This a blatantly incorrect statement.  Regardless of one’s position on the initiative, the process being pursued is wholly constitutional.  Again, Article II, Section 1 of the US Constitution clearly grants the power to appoint electors to the state legislatures:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…

Indeed, there is no requirement whatsoever to even have a popular vote in terms of the text of the Constitution.  As such, if the legislature of Massachusetts wishes to grant its electoral votes to the candidate winning the popular vote, then it is their constitutional right.  Mr. Tiseli ought to note that this is likely the only way a Republican is going to win those electoral votes in the foreseeable future.  As such, I am not even sure what his exact objection is, at least in terms of “sneaky” liberals and their nefarious plots.

As an aside, it would be nice if people who appeal to the Constitution would actually know what the document says.

I have noted before that I would prefer a shift to a popular vote for president (preferably with a run-off or instant run-off), so I will confess some sympathy to this initiative, as a constitutional amendment is unlikely.  Still, it strikes me as an imperfect solution.

FILED UNDER: US Politics, , ,
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Zelsdorf Ragshaft III says:

    I find your arguement nothing but an excuse for what is taking place. What I find more interesting is who is behind these changes. Notice the Democratic majorities in the State legaislatures chasing these changes. Not one is by the vote of the people. If you think Americans will allow the coasts to dominate elections because of the population centers being there, I want to introduce to you the concept of civil war.

  2. PD Shaw says:

    I won’t repeat what I wrote in Joyner’s thread today, but the Constitutional issue is in the compact clause.

  3. sam says:

    But, P.D., Steve’s point is that the states are allowed — have apparently unlimited power — to appoint their electors. Which trumps which: the power of states to appoint electors or the Compact provision?

  4. floyd says:

    This simply disenfranchises every voter in Massachewsetts.
    This initiative doesn’t respect the popular vote, it denies it.

  5. This simply disenfranchises every voter in Massachewsetts.
    This initiative doesn’t respect the popular vote, it denies it

    Well, no: the votes in Mass. go into the national vote total.

  6. PD Shaw says:

    The states don’t have unlimited power, they have grants of power which they must exercise within constitutional bounds.

    The contrary argument was rejected in the 60s. Some states were conditioning voting on poll taxes or using electoral districts that were not proportionate to population. The SCOTUS ruled in several cases that the electoral franchise when given must still comport with fundamental rights and the equal protection clause. This was also the basis of the ruling in Bush v. Gore — the states cannot enforce or implement rules that debase or dilute an individual’s vote, regardless of what discretion they have in allowing elections in the first place.

    That raises an equal protection question. Does the compact dilute the weight of a vote? I can see how somebody who votes for candidate A, in a state in which a majority votes for candidate A, may feel like their vote was diluted if their electors case a vote for candidate B.

  7. floyd says:

    “”Well, no: the votes in Mass. go into the national vote total.””
    Without the benefit of a popular vote for president.

    If every state did this …. what popular vote would they be tracking?

  8. PD:

    You are ignoring the plan text of Article II, Section 1 in terms of the ability of the state legislatures to determine how electoral votes are allocated.

    Granted, the power is not unlimited in the sense that they couldn’t let only left-handed white males vote, but the notion that they can’t do what the NPV initiative envisions is problematic.

  9. sam says:

    @PD

    “The states don’t have unlimited power, they have grants of power which they must exercise within constitutional bounds.”

    Excuse me, but that’s begging the question. The Constitution says the states may select their electors by any method they choose:

    “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…(Art 2, sec 1).”

    In what sense is a state’s decision to allot its electoral votes on the basis of the popular vote unconstitutional under the passage cited? “in such Manner as the legislator thereof may direct”, to me, rules in the manner we are discussing.

    Equal protection claim. How many states allocate their electors proportional to the votes for the candidates in the states? Only one that I know of, Nebraska — all others are winner take all. I’ve yet to hear an equal protection claim here.

    Bush v. Gore…I myself wouldn’t go there, as SCOTUS, in the majority opinion, said, “Oh, and yeah, the equal protection arguments we’re relying on here only apply in this particular case.”

  10. PD Shaw says:

    Prof. Taylor: Why don’t you think states couldn’t let only left-handed white males vote? If you believe that would violate the equal protection clause of the Fourteenth Amendment, then you are basically saying the states can determine how electoral votes are counted so long as they comport with federal constitutional limits.

    And I would then point out that the compact clause is part of the U.S. Constitution too.

  11. sam says:

    Ok, “limited” in the sense that Steve’s last indicates.

  12. PD: The fundamental point remains that the compact is ultimately superfluous to the issue of whether the states can, or cannot, allocate their electoral votes in the manner describes. You are utterly avoiding that issue.

  13. wr says:

    ZR — I thought you wanted the states to have more power, but when a state legislature acts, that, too, is an act of tyranny? How exactly would you like this country to be run?

  14. PD Shaw says:

    sam,

    the point I’m trying to make is that Article II, Section I, gives states the authority to determine the manner of selecting electors. Since the 1960s, the SCOTUS, over the objection of conservatives, has ruled that this power is subject to limitations found elsewhere in the U.S. Constitution. And they particularly rejected the argument that because states don’t need to grant the right to vote, lesser restrictions are therefore o.k. For example, Harper v. Virginia Board of Elections (1966).

    The point about Bush v. Gore is not that it’s precedential, but that as of 2000 all justices now agree that state power to select the manner for appointing electors is limited by fundamental principles found in the U.S. Constitution. What they did, and will continue to, disagree about is what those principles are and how much deference should be given to states.

  15. sam says:

    I dunno, PD, Harper wrote paid to the poll tax; not sure how it impinges on a state’s freedom to choose its electors. I do understand the equal protection argument there, but I don’t think you’ve made the case that the scheme we’re discussing violates equal protection. As for dilution, keep in mind this scheme was prompted by the outcome in Bush-Gore: Gore won the popular vote, and lost the electoral vote, and, ultimately, the election. How were the Gore votes not diluted in that?

  16. floyd says:

    Steve;
    I get your point, and it has merit. However doesn’t this effectively reduce state sovereignty to something less than that of counties?

    I have my ear to ground as much as anyone, yet apparently , according to Joyner’s article on this subject, this was passed in Illinois without any fanfare or publicity, effectively without public knowledge or consent..
    Maybe that goes to the heart of the problem, an appathetic electorate, represented by an unrestrained elected. The latter hungry for power without any need for accountablity.
    Ultimately the method means less than the motive.
    May be, it’s time for sackcloth and ashes… or maybe even taps.

  17. PD Shaw says:

    Illinois does not have a legislative body on important issues. On important issues, the laws are agreed to in advance by the leadership of both houses, introduced and passed by the end of the same day. Our (needed) pension reform was passed in less than 11 hours from first being introduced in house committee to being approved by the senate.

  18. PD Shaw says:

    I might wake up tommorow and find out that the electoral votes of Illinois will now be based upon a the average outcomes of four random states.

  19. Rick says:

    Let me take an example that is equally as extreme as the Bush v Gore election, with NPV the results of the 1980 election would have been Reagan 538 Carter 0. How does that not dilute the vote of the citizens in the six states Carter won?

    How many times has the result been that the President elect received fewer popular votes than his opponent?

    Since 1824 the earliest election where the popular vote was tracked, I can only find three instances where the President elected did not win the popular vote but won an electoral majority. In addition to 2000 they are:

    1824 John Q. Adams was elected from a field of four candidates, none of which received a majority of electoral votes, the election went to the House and Adams carried 13 State legislatures.

    1876 Samuel Tilden received more popular votes but election returns in OR, FL, SC, and LA were disputed. The election went to the House and Rutherford B. Hayes was declared the winner. Read up on this election and the Compromise of 1877, and explain why there was no movement to eliminate the Electoral system at that time?

    The NPV initiative will result in candidates focusing their campaigns on population dense areas making the votes of the suburban and rural citizens irrelevant.

    There is plenty of analysis that can be done on this subject, as well as the inevitable challenges in the courts of each of the state enacting NPV laws, at least some of which will grant injunctive relief pending the outcome of a hearing on the Constitutionality of NPV laws.

    This has the potential to lead to inconsistent decisions in the appellate courts and will ultimately end up before the Supreme Court resulting in a 5-4 decision.

  20. @Rick: the point would be that the focus would no longer actually be on the electoral vote, but rather on the popular vote.

  21. Rick says:

    @Steven: understood, but in my opinion it will be quite tumultious when some states have enaced NPV and others have not, how can the focus be shifted from the Electoral vote to the popular vote?

    To the broader question raised regarding Article II, Section 1of the Constitution, see WILLIAMS v. RHODES, 393 U.S. 23 (1968) where in the opinion JUSTICE BLACK wrote:

    ‘Obviously we must reject the notion that Art. II, 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions. We therefore hold that no State can pass a law regulating elections that violates the Fourteenth Amendment’s command that “No State shall . . . deny to any person . . . the equal protection of the laws.” [393 U.S. 23, 30] ‘

  22. sam says:

    @Rick

    Absolutely. But, then, what’s required is to show that the scheme being discussed does, in fact, embody an equal protection violation. I maintain that, here at any rate, this has not been demonstrated. And, with this,

    “Let me take an example that is equally as extreme as the Bush v Gore election, with NPV the results of the 1980 election would have been Reagan 538 Carter 0. How does that not dilute the vote of the citizens in the six states Carter won?”

    We’re back to one of my questions. In our current system, the states, with the exception of Nebraska, have a winner-take-all schema re electoral votes. Suppose a state — I’m pretty sure you can find one — wherein the state popular vote was 51% A, 49% B. Yet A gets all the electoral votes of the state. In what sense are the B votes in that state not diluted? (Maybe ‘dilutred’ is the wrong word: In what sense are the votes of B not otiose?)

  23. Rick says:

    @sam: your example of someone receiving 51% of the vote in a state taking all of the electoral votes is not as effective as one in which the winner only receives a plurality of votes and still take all of the electoral votes for that state.

    In your scenario there is a clear winner (regardless of the margin of victory) and the voters in the minority lost at their state level, not leaving it up to an ambiguous National Popular Vote total.

    Let’s look at Oklahoma which has consistently voted Republican since 1952 with an NPV initiative in 2000 the 8 electoral votes would have gone to Gore disenfranchising the 744,337 (60.31%) who voted for Bush.

    In the 2004 election Kerry carried Pennsylvania 50.92% to 48.42% for Bush despite only winning 13 of Pennsylvania’s 67 counties. I don’t have access to vote totals by congressional district to see how the electoral votes would have been split in a Nebraska style Electoral College.

    It is precisely an example like the Oklahoma scenario which the founders sought to prevent by not allowing the direct election of the President. At the time of the Constitutional Convention the results of Massachusetts, New York, Pennsylvania and Virginia could have determined the outcome of an election regardless of the votes cast in the remaining states based on population alone.

  24. Let’s look at Oklahoma which has consistently voted Republican since 1952 with an NPV initiative in 2000 the 8 electoral votes would have gone to Gore disenfranchising the 744,337 (60.31%) who voted for Bush

    Well, no. I think you are missing the point of the initiative: the idea is to make the electoral vote irrelevant. The notion is that the popular vote would be the real method of determining the winner with the EV being a formality. As such, not only would have all the OK voters who voted for Bush have been counted, so, too, would all the OK voters who voted for Gore. It is worth noting that under the current system, the Gore OK voters actually didn’t matter, since all the OK EVs went to Bush.

  25. wr says:

    Rick: “The NPV initiative will result in candidates focusing their campaigns on population dense areas making the votes of the suburban and rural citizens irrelevant. ”

    Wait, you mean candidates will actually have to campaign in those parts of the country where the majority of the citizens live, and possibly engage in their issues, instead of pandering to the handful of people who live in Iowa and Nebraska? How will the nation survive?

  26. wr says:

    Rick: “The NPV initiative will result in candidates focusing their campaigns on population dense areas making the votes of the suburban and rural citizens irrelevant. ”

    Wait, you mean candidates will actually have to campaign in those parts of the country where the majority of the citizens live, and possibly engage in their issues, instead of pandering to the handful of people who live in Iowa and Nebraska? How will the nation survive?

  27. PD Shaw says:

    To clarify my position, I think the compact raises an equal protection question, to which I don’t have a guess as to the answer. I think it’s more probable than not unconstitutinoal under the compact clause though.

    BTW/ I voted for Gore and did not like Bush v. Gore.

  28. André Kenji says:

    In Brazil there is the popular vote. All the candidates that went to the runoff since 1989, with the exception of one, came from one single state. It´s true that Dilma Rousseff will break this rule, but only because ehe is a protegeé of Lula.

    Another problem is that it would increase even further the power of the senior vote. Today, their power are generally limited to the electoral votes in states like Arizona and Florida, while with the Popular Vote candidates would have to deal with a demographic that votes more than any other nationwide. Increasing the size of the Congress would avoid situations like 2000(No Constitutional amendments would be necesary) and frankly, proportional distribution of the electors is a even better solution.

  29. floyd says:

    Still , whether it is proportional, or winner take all, a state should only place it’s electoral votes according to intrastate results, not allowing voters from other states to dictate the outcome.

  30. Rick says:

    @ Steven: the method for making a portion of the Constitution irrelevant is prescribedin Article V. Having read “Notes of Debates in the Federal Convention of 1787 reported by James Madison” I understand the difficulty the founders experienced in debating the method to elect the President and how they actually settled on the electoral system.

    You have pointed some commenters to the text of Article II, Section 1, which through citations to Supreme Court cases has been shown to have limitations, yet you also seem to disregard the very mechanism for amending the Constitution as set forth in Article V.

    @wr: Let’s focus on the attempt to circumvent the Constitution rather than the primary election process.

    @floyd: That is the point I was trying to make.

  31. sam says:

    @Rick

    “You have pointed some commenters to the text of Article II, Section 1, which through citations to Supreme Court cases has been shown to have limitations, yet you also seem to disregard the very mechanism for amending the Constitution as set forth in Article V.”

    It’s been asserted that the NPV would violate equal protection, but no one has shown how it would. Moreover, I think Steve’s right: You seem to misunderstand the basic mechanism of the NPV., e.g., “Let’s look at Oklahoma which has consistently voted Republican”. And no one has successfully rebutted, in my opinion, my contention that those on the losing side in a state, under our current winner-take-all EV system, are ‘disenfranchised’ (your word).

  32. sam says:

    Oh, and one final thing:

    Let me take an example that is equally as extreme as the Bush v Gore election, with NPV the results of the 1980 election would have been Reagan 538 Carter 0. How does that not dilute the vote of the citizens in the six states Carter won?

    All that would mean, absolutely all, is that Reagan won the national popular vote, period.

  33. sam says:

    One final final thing (sorry, I seem to be on a roll this morning). The only argument that strikes me as at all persuasive is the “But then they’ll concentrate on the big states and shun the little ones” argument.

    Well, maybe not. In a close election, I can see the campaign staff saying, “Jesus, we’re gonna need every vote we can get, so we think it’s a real good idea to swing through these states and spend some money there.”

    I.e., in an election where the popular vote is determinative, a vote in Montana or North Dakota is worth exactly as much as a vote in New York or California. And maybe the election doesn’t even need to be that close. Every vote is worth as much as every other vote. And, indeed, I can envision a group of small states being extremely important to the outcome of an election.

  34. Rick says:

    .@sam
    “And no one has successfully rebutted, in my opinion, my contention that those on the losing side in a state, under our current winner-take-all EV system, are ‘disenfranchised’ (your word).”

    To the victor go the spoils. The current system of the Electoral College provides (with the exception of two states) that the winner of the popular vote at the state level receives the Electoral Votes from that state. In an NPV scheme votes from the more populated states are worth more than those from less populated states.

    For example in 2008 Obama won the national popular vote by 9,549,105 votes. California and New York accounted for 5,314,866, nearly 56% of the difference.

    In 2000 Gore won the national popular vote by 543,816, the net gain in votes from California and New York alone was + 2,998,307 votes for Gore. .

  35. In an NPV scheme votes from the more populated states are worth more than those from less populated states.

    This is a utter misunderstanding of the situation. The point of using the national vote total as the determiner of the winner is to make every single vote count the same. A vote in CA is worth the same as a vote in WY.

    One of the problems at the moment is that votes in CA are actually worth a bit less than a vote in WY because of the way that EV’s are allocated (#of House Seats + # of Senate seats–CA gets 2 EVs for its Senate seats, as does WY, despite radically different populations).

    Further, under the current system the millions who vote Rep in CA end up not mattering to the national totals because, as you note “to the winner goes the spoils”.

  36. sam says:

    @Rick

    @me: “And no one has successfully rebutted, in my opinion, my contention that those on the losing side in a state, under our current winner-take-all EV system, are ‘disenfranchised’ (your word).”

    @Rick: To the victor go the spoils.

    QED

  37. Rick says:

    @Steven:

    So the fact that Wyoming has 3 electoral votes is unfair to California which had 55?

    That is interesting since the United States of America is a representative republic, and the founders took great pains to devise a system which doesn’t allow for direct election of the President but was deemed equitable for all states.

    Roughly seven weeks in to the Constitutional Convention in 1787, the question of representation nearly derailed the debates. After Mr Sherman proposed what became known as the Great Compromise, Benjamin Franklin submitted his thoughts in writing (they were read aloud by Mr. Wilson .

    “The greater States Sir, are naturally as unwilling to have their property left in the disposition of the smaller, as the smaller are to have theirs in the disposition of the greater. An honorable gentleman has, to avoid this difficulty, hinted a proposition of equalizing the States. It appears to me an equitable one, and I should, for my own part, not be against such a measure, if it might be found practicable.”

    You can read the whole letter in James Madison’s notes from the Federal Convention on June 11th 1787.

  38. Rick says:

    @sam:

    “And no one has successfully rebutted, in my opinion, my contention that those on the losing side in a state, under our current winner-take-all EV system, are ‘disenfranchised’ (your word).”

    How is losing the popular vote at the stae level different than losing the popular vote at the national level?

  39. @Rick

    “the United States of America is a representative republic”

    this is true–and the fundamental definition thereof has nothing to do with the EC, per se. Nor, as it often assumed, is federalism an integral part of a “representative republic.”
    .
    The representational issues of which you speak were primarily about the House, btw. The Great Compromise was about representation in the Senate, not the EC. Indeed, the debate over how to elect the president didn’t take place until well after the timeframe you are citing.

    Beyond that: it was a political compromise of necessity, not God sending tablets down from the mountain. It is, in fact, unfair that a voter in Wyoming has slightly more voting power than one in CA. Further, there is no longer any practical reason it should remain that way save “we have always done it that way.”

  40. Rick says:

    @Steven:

    I understand the term “Electoral College” was not written in to law until 1845, this does not diminish the fact that the framers were careful to create a method of election the president without allowing the citizens a direct vote and ensuring there was some equitable distribution of electors.

    Arguing that the NPV Initiative is attempting to circumvent Article II, Section 1 of the Constitution without following the proper procedures for Constitutional amendment is not the same as arguing “we have always done it that way”

    You have focused your attention on the notion that a voter in Wyoming has “slightly more voting power” than a voter in California, by only looking at the Electors apportioned for the Senators. If we took the Senate allocations out of play, then California would have 53 Electoral Votes and Wyoming just one. Is that your idea of fair? That is why I began the discussion on the representative republic and the apportionment of representatives and senators to the federal government; at no time did I imply that federalism was a component of a representative republic, please try not to assume I am arguing from an ill-informed position.

    Moreover you ask readers to look past the Electoral College votes, but there is no guarantee that all states will adopt the NPV Initiative, so the proponents are targeting enough states to make a difference in the Electoral College by having a large enough bloc of electoral votes dependent upon the national vote totals.

    A constitutional convention and ratification of the proposed amendment by 38 states makes it the law of the land in a much cleaner process. However it is rather inconvenient for proponents of the NPV Initiative to follow the Constitution when there is not enough support to pass a Constitutional amendment.

  41. . If we took the Senate allocations out of play, then California would have 53 Electoral Votes and Wyoming just one. Is that your idea of fair?

    Actually, yes, as it is closer to a 1:1 ratio of voters (citizens) to electoral votes. How could that not be fair(er)? Indeed, my preference (as noted in the post) would be to go to a straight popular vote with a run-of provision. I believe that every voter’s vote ought to have the exact same weight in the process.

    BTW, even the 53:1 ratio of EVs for CA:WY would still favor Wyoming, as it has less residents in the whole state than does any one of California’s 53 House districts. The principle I am defending here is the notion of democratic equality of citizens in an election. BTW, I do recognize that the odds of EC reform are close to zero–making this an abstract debate at best.

    I would, in fact, prefer a constitutional amendment to the NPV process. My responses in this thread have been attempts to explain rather than to defend, per se, the NPV approach.

  42. floyd says:

    “” I believe that every voter’s vote ought to have the exact same weight in the process.””

    Would you then choose to eliminate the Senate and completely reduce the states to the status of counties.

  43. @floyd:

    These are different debate, but I have my qualms about the Senate, yes, in terms of representation.

    However, even if you went to total equality of representation in the Congress, that would not reduce states to mere counties, as there would still be a federal system with divided policy authorities–you are conflating the nature of representation in the Congress and the division of policy authorities between the feds and the states. The power of the states to,for example, have their own criminal codes has nothing whatsoever to do with how seats are allocated in the Senate.

  44. sookie says:

    This will be OK, until a Republican stand to get the majority of the popular vote. Then Mass (and others) will back pedal as quickly as they can.

  45. sam says:

    @Rick

    “How is losing the popular vote at the state level different than losing the popular vote at the national level?”

    Well, I think one could argue that at the state level, under the EV regime, your vote is really a vote on whether you vote will count in the national election. If you’re on the losing side, it doesn’t.

    However, let’s assume, arguendo, that they do not differ. How would that impact your argument?

  46. floyd says:

    Steve;
     we have county ordinances.

  47. @Floyd:

    we have county ordinances.

    Which are not the same thing as state laws in terms of scope or character.  This is simply not a valid comparison.

  48. TMLutas says:

    There are a few objections that have been missed so far:
    1. The states may select electors in any way that they wish. If they do not permit them a free vote, as this scheme envisions, then they are not electors at all, but rather puppets. Faithless electors have existed in the past and there is very much a prisoner’s dilemma for NPV state electors. What if they, en masse, are faithless to NPV but true to their state vote? Does anybody really think that sharp operators like the Obama crew wouldn’t press electors to go this route?
    2. The NPV initiative runs afoul of the constitutional guarantee that each state will have a republican form of government. State positions are determined by the relevant electorate within the state. But not in the case of the NPV.
    3. This, in effect, gets around the constitutional amendment requirement. If you don’t like the electoral college, amend the constitution. If you don’t have the strength to do it, perhaps your amendment really shouldn’t pass. We have high barriers to amendments for a reason, stability. If NPV succeeds, I have zero doubt that other attempts will be made to ram through changes in a similar end run fashion. How do you stop that? It’s unclear.

  49. The NPV initiative runs afoul of the constitutional guarantee that each state will have a republican form of government

    No, it doesn’t.  This is both an academic expertise of mine and a pet peeve when people use that term incorrectly.  The whole notion of a republican form of government is that idea that the power to govern derives from the people, and basic manifestation of that is voting in elections (it is, in basic terms, what we call “representative democracy” in the modern era).

    The NPV notion, regardless of what else one may think of it, is profoundly within the realm of republican government.

  50. Rick says:

    @sam:

    The point of my question regarding the difference between losing at the state level vs losing at the national level is that in both instances it is winner take all.

    The difference comes in when the more populated states have a margin of victory for one party or the other that is greater than the total number of votes cast in several of the smaller states.

    That is the crux of the issue the founders struggled to deal with, not allowing the more populated states to force their will upon the smaller states.

  51. The difference comes in when the more populated states have a margin of victory for one party or the other that is greater than the total number of votes cast in several of the smaller states

    ???

    This dynamic is true in the electoral college, too.  Indeed, as has been noted, it amplifies their significance.  If you had a true national popular vote (set aside the NPV idea) that would no longer be the case.