Over the past several years, there’s been a movement quietly picking up steam to fundamentally change the way Presidents are elected, from the current system of statewide elections choosing slates of electors pledged to candidates into a national popular vote system. Normally, you’d expect such a change would require a constitutional amendment, but the Constitution gives states blanket discretion in how they choose their electors. The proposed mechanism is for a bunch of states (totalling at least 270 EV) to get together and agree to appoint electors pledged to elect the winner of the national popular vote. The movement’s getting a bit of press the last few days, since it appears Massachusetts is about to sign on (joining Maryland, New Jersey, Washington, Illinois, and Hawaii).
In my mind, there are three questions surrounding this proposal:
- Would a national popular vote be preferable to the current system? I doubt it, but I’ll save that argument for a different post.
- Is it technically legal: can the states change the mechanism for electing the President via insterstate compact? Almost certainly.
- Leaving aside Question 1, should states where the legislature favors abolishing the electoral college sign on, or should they refrain and instead call for a constitutional amendment (the constitution permits states to petition Congress to call a convention to propose amendments, and requires Congress to call the convention if enough states so petition)?
I believe the answer to question 3 is no. While the constitution explicitly grants states plenary authority to set whatever procedure they want to select electors (contrained only by later amendments, most notably the various voting rights amendments that limit the ability of states to disenfrancise citizens from voting in any elections that are held, and the Equal Protection clause of the 14th amendment which has been interpretted to require votes within a state to be counted evenly according to a uniform standard), I doubt very much that anyone involved in the authoring or ratification of the amendment thought is plausible that any state would set a procedure for choosing electors that didn’t hinge on elections within that state (either direct popular elections of Presidential electors at-large or by district, or appointment by the state legislature). Indeed, since the Electoral College was part of a compromise to protect the ability of small states to defend their interests against a coalition of a few large states, I think it very likely that the national popular vote interstate compact would have been explicitly disallowed had any of the founders thought of it.
There’s also the philosophical question of whether it’s right for a minority of states representing (approximately) a simple majority of the population to fundamentally change the nature of our system for electing a President. When considering this question, especially if you support abolishing the Electoral College, bear in mind that if the procedure is legitimate on this question, it’s legitimate on other questions as well. The Constitution gives plenary power to the states to pick any method to choose electors, and “plenary” is a very strong word. Instead of appointing electors pledged to the winner of the national popular vote, the rule could be any of the following:
- All electors are appointed pledged to a candidate selected by random drawing.
- All electors are appointed by the incumbant President.
- All electors are appointed pledged to vote for the heir by male-preference primogeniture (subject to the Constitutional requirements of the Presidency) of George Washington as President, and to the next in line as Vice President, effectively turning the Presidency into a heriditary monarchy.
Naturally, these are all very bad and very unpopular rules, while electing the President by national popular vote is arguable a good idea and is certainly rather popular. But what they have in common is that they’re radical changes in how we pick the President, which could be implemented through a simple-majority process that circumvents the intentionally-difficult process of amending the Constitution.
Update: To clarify, the examples of other policies that could theoretically be implemented through an interstate compact concerning allocation of electoral votes is intended purely to prompt deeper consideration of the legitimacy of the process, not to claim that there’s any particular likelihood that adoption the NPVIC would lead to a monarchist interstate compact a century or two down the road.
However, there’s one potentially plausible category of interstate compacts we should legitimately be worried about is a large subset of state agreeing to cast their votes as a block according to the combined popular vote of the states in the block, effectively disenfrancising states outside the block.
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I am now imagining the nightmare of endless recounts in every single state in a close election rather than just one or two.
While that’s what we’d get if we had a constitutional amendment establishing a national popular vote, it’s not what I’d expect from the NPVIC.
Since the NPVIC is by its nature enforced and implemented state-by-state, Ohio can (and probably will) tell Maryland to go fly a kite when the national popular vote is within a few hundred votes, and it’s unclear whether the margin of victory in Ohio was 50,000 or 52,000. What would happen instead is the Governor and Secretary of State in each NPVIC-member state will make a seperate determination as to who the “real” winner of the national popular vote is, which will then get challenged in that state’s courts. And then we wind up with state courts allocating half the country’s electoral votes, and the other half being allcoated the old-fashioned way by the non-NPVIC states.
It seems to me that this scheme sets a screwy set it rewards for vote fraud.
If one state permits enough fraud that everyone effectively votes twice, then instead of being contained to that state, it directly affects the Presidency. It effectively sets up a race to the bottom.
How would this work anyway? Say the national vote is <.02% different, but no state is <2% different. Won't most state laws prohibit recounts as not cost effective? Will compact states be able to sue non-compact states to force recounts? Will compact states have any standing in non-compact states BECAUSE of the compact?
And what about states (such as California, if I recall) that suspend counting absentee ballots and such once their electoral votes are allocated. If they are not part of the compact, can they be forced to complete a count that, according to their laws, is not required?
What if non-compact states only announced percantages (winner / loser), not total votes caste? The states are only required to announce electoral votes, right? Can compact states force disclosure of statewide vote totals of non-compact states? What if non-compact states just gave total votes caste and the winner’s percantage, rounded to the nearest %, and did not seperate the runner up, Mickey Mouse’s votes, Beavis and Butt Heads votes (i.e., Candidate A, with 54% of 11,200,000 votes won our 40 EV). What could the Compact states do?
Historically, it sounds like the way popular election of Senators came about. First some states implemented it, then there was an amendment.
Yours,
Wince
Historically, virtually all of the major changes in the method of electing the President (for example, ending the requirement that only men who owned substantial property could vote), including current state-by-state winner-take-all laws, have come about by state legislative action, without federal constitutional amendments.
The Founding Fathers only said in the U.S. Constitution about presidential elections (only after debating among 60 ballots for choosing a method): “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”
Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.
In 1789, in the nation’s first election, the people had no vote for President in most states, Only men who owned a substantial amount of property could vote.
In 1789 only three states used the state-by-state winner-take-all rule to award electoral votes.
There is no valid argument that the winner-take-all rule is entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The current 48 state-by-state winner-take-all rule (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all rule.
The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state’s electoral votes.
As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all rule is used by 48 of the 50 states.
The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.
The potential for political fraud and mischief is not uniquely associated with either the current system or a national popular vote. In fact, the current system magnifies the incentive for fraud and mischief in closely divided battleground states because all of a state’s electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state.
Under the current system, the national outcome can be affected by mischief in one of the closely divided battleground states (e.g., by overzealously or selectively purging voter rolls or by placing insufficient or defective voting equipment into the other party’s precincts). The accidental use of the butterfly ballot by a Democratic election official in one county in Florida cost Gore an estimated 6,000 votes ― far more than the 537 popular votes that Gore needed to carry Florida and win the White House. However, even an accident involving 6,000 votes would have been a mere footnote if a nationwide count were used (where Gore’s margin was 537,179). In the 7,645 statewide elections during the 26-year period from 1980 to 2006, the average change in the 23 statewide recounts was a mere 274 votes.
Senator Birch Bayh (D–Indiana) summed up the concerns about possible fraud in a nationwide popular election for President in a Senate speech by saying in 1979, “one of the things we can do to limit fraud is to limit the benefits to be gained by fraud. Under a direct popular vote system, one fraudulent vote wins one vote in the return. In the electoral college system, one fraudulent vote could mean 45 electoral votes, 28 electoral votes.”
Bad idea for 10 different reasons:
This, of course, is in response to Bush v. Gore 2000, where the thought that Gore got more popoular votes, but didn’t get the presidency, doesn’t sit well with our friends from the left.
The problem is that these folks fail to understand the structure of our gov’t — the name of the country is The United States of America — the name of our country is not “America.” The States are separate sovereign units — they have a say (a big say, in my view) in how the Federal is formed. They have a big say in how we elect our president via the Electoral College. This should not be a revelation to folks who graduate high school civics in the past 50-100 years.
In addition, there is a nascent movement to cast aspersions against the Senate — it is not democratic! It is not fair that 2 Senators from Wyoming (pop. 544,000) have equal power with 2 Senators from California (pop. 35 Million)!
Umm, if I may paraphrase the young, hip crowd — that’s a feature, not a bug.
We built the Republic on bicameralism — a pure democratic House, a somewhat aristocratic Senate. Yes, we didn’t want Kings and propertied Dukes running our country, but we also didn’t want mindless mobs or rabble rousers with guns either. So, we struck a balance between the people + States.
The efforts by some on the left to abolish the Electoral College and abolish the Senate upsets this balance.
I say keep the Electoral College, keep the Senate, keep the filibuster.
My 2 cents
-HB
The U.S. Constitution (Article II, section 1, clause 4) provides:
“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.”[Spelling as per original]
The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December.
Under both the current system and the National Popular Vote approach, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the common nationwide date for the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets.
Neither the current system nor the National Popular Vote compact permits any state to get involved in judging the election returns of other states. Existing federal law (the “safe harbor” provision in section 5 of title 3 of the United States Code) specifies that a state’s “final determination” of its presidential election returns is “conclusive”(if done in a timely manner and in accordance with laws that existed prior to Election Day).
The National Popular Vote compact is patterned directly after existing federal law and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President. No state has any power to examine or judge the presidential election returns of any other state under the National Popular Vote compact.
Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the “canvas”) in what is called a “Certificate of Ascertainment.” You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site at
http://www.archives.gov/federal-register/electoral-college/2008/certificates-of-ascertainment.html
The question of recounts comes to mind in connection with presidential elections only because the current system so frequently creates artificial crises and unnecessary disputes.
A nationwide recount would not happen. We do and would vote state by state. Each state manages its own election. The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires. The larger the number of voters in an election, the smaller the chance of close election results.
Recounts in presidential elections would be far less likely to occur under a national popular vote system than under the current state-by-state winner-take-all system (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in each separate state).
In fact, if the President were elected from a single nationwide pool of votes, one would expect a recount once in 332 elections, or once in 1,328 years.
Based on a recent study of 7,645 statewide elections in the 26-year period from 1980 through 2006 by FairVote, the probability of a recount is 1 in 332 elections (23 recounts in 7,645 elections). Thus, with 420 statewide races on the ballot in 2006, there was one statewide recount (the Vermont State Auditor’s race). Similarly, there was one recount in 2004 (the Washington state governor) and one in 2008 (the U.S. Senate race in Minnesota).
Under the current state-by-state winner-take-all system, there are 51 separate opportunities for recounts in every presidential election. Thus, our nation’s 56 presidential elections have really been 2,084 separate state-level elections. In this group of 2,084 separate elections, there have been five seriously disputed counts. The current system has repeatedly created artificial crises in which the vote has been extremely close in particular states, while not close on a nationwide basis. Note that five seriously disputed counts out of the 2,084 separate state-level elections is closely in line with the historically observed probability of 1 in 332.
A national popular vote would reduce the probability of a recount from five instances in 56 presidential elections to one instance in 332 elections (that is, once in 1,328 years).
The possibility of recounts should not even be a consideration in debating the merits of a national popular vote. No one has ever suggested that the possibility of a recount constitutes a valid reason why state governors or U.S. Senators, for example, should not be elected by a popular vote.
A single national pool of votes is the way to drastically reduce the likelihood of recounts and eliminate the artificial crises produced by the current system.
I want to go back to state legislatures electing Senators myself.
We can improve the Senate without a constitutional change, too.
Break up the populous states. I’m wildly in favor of this. The big states have too many people for the good of their people.
Yours,
Wince
In 1966, Delaware led a group of 12 predominantly low-population states (North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, Pennsylvania) in suing New York in the U.S. Supreme Court, arguing that New York’s use of winner-take-all effectively disenfranchised voters in their states. The Court declined to hear the case (presumably because of the well-established constitutional provision that the manner of awarding electoral votes is exclusively a state decision). Ironically, defendant New York is no longer a battleground state (as it was in the 1960s) and today suffers the very same disenfranchisement as all but one of the 1 3 smallest population states that are also ignored in presidential elections.
California’s definitely too big. At least, California’s government is.
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