I’ve come out in favor of the Electoral College before (see here). Among other things, the EC ensures that Presidents get broad support as opposed to simply the most support, it gives minorities a bigger voice, and it makes vote fraud much more difficult. See here for an FEC paper on the origins of the EC, and it makes for very informative reading, especially on the reason that the Founders decided not to go with a direct popular vote for the President. (The paper was last updated in 1992, but the history is what’s important.)
In Wednesday’s "Best of the Web Today" column, James Taranto takes on the National Popular Vote Interstate Coalition. What they’re trying to do is get enough states, accounting for at least the 270 electoral votes needed to win, to agree to direct their electors to vote for whoever wins the national popular vote, regardless of how the vote in their particular state went.
Taranto notes that the states currently supporting it, or who’s legislatures have at least passed a bill on to their governor, all voted Democratic in at least the last 5 elections, usually by double-digit margins. Taranto surmises (though, not really having to make a big logical leap):
It’s no mystery why this idea appeals to Democrats. They are still bitter over the disputed 2000 presidential election, in which Al Gore "won" the popular vote but George W. Bush won the actual election. Changing the rules wouldn’t necessarily benefit Democrats, but you can see why trying to do so might make them feel good.
After all, it was after the 2000 election that the NPVIC got it’s start. Again, not much of a leap.
But there are problems with this, not even related to the question of popular vote vs electoral vote. While the measure would be indeed constitutional, Taranto contends it would be unenforceable.
Think about that old Philosophy 101 question: If God is omnipotent, can he make a rock so big that he can’t lift it? It seems like a puzzle, but the answer is clearly no. The premise that God is omnipotent leads to the conclusion that he can both make and lift a rock of any size. "A rock so big that he can’t lift it" is a logically incoherent construct, not a limitation on God’s power.
The NPVIC is based on the similarly illogical premise that lawmakers with plenary powers can enact a law so strong that they can’t repeal it. In truth, because a state legislature’s power in this matter is plenary, it would be an entirely legitimate exercise of its authority to drop out of the compact anytime before the deadline for selecting electors–be it July 21 of an election year or Nov. 9.
Call it the problem of faithless lawmakers–somewhat akin to the question of faithless electors. Legal scholars differ on whether state laws requiring electors to vote for the candidate to whom they are pledged are constitutional. But because the power of legislatures to choose the method of selecting electors is plenary, there is no question that the Constitution would permit faithless lawmakers to exit the NPVIC.
If one or more states did so, and it affected the outcome of the election, the result would be a political crisis that would make 2000 look tame. Unlike in that case, the Supreme Court would be unable to review the matter because it would be an exercise in plenary lawmaking authority. Challenges in Congress to the electoral vote count would be almost inevitable. Whatever the outcome, it would result from an assertion of raw political power that the losing side would have good reason to see as illegitimate.
The problem here is that we’d be giving the election of our President over to what amounts to a gentleman’s agreement; an agreement that not even the Supreme Court would be able to work out, since they wouldn’t have jurisdiction.
I’m still entirely behind the Electoral College system, and please read the link for the details (and especially the FEC paper; history is important). But Taranto winds up with something to think about, should this gentleman’s agreement get put in place.
Since the NPVIC would be legally unenforceable, only political pressure could be brought to bear to ensure that state legislatures stand by their commitments to it. Would this be enough? Let’s put the question in starkly partisan terms: If you’re a Republican, do you trust Massachusetts lawmakers to keep their word, and to defy the will of the voters who elected them, if by doing so they would make Sarah Palin president?
Consider this.
Doug Payton blogs at Considerettes.
17 users commented in " Why I Like the Electoral College (and Not National Popular Vote Interstate Compact) "
Follow-up comment rss or Leave a TrackbackDear Doug,
I can see that you’ve thought carefully about this, but I think you’ve missed the forest for the trees.
The complexities of this issue do not alter the simple fact that an electoral college (or anything except direct popular election of the president) makes one person’s vote worth more than another’s.
And, in any case, frankly, all the arguments you make about broad support (vs more support) and minorities (and protecting them) strike me as arguments AGAINST the electoral college.
But it doesn’t matter. Either you believe in democracy and “one person, one vote” and favor direct popular election of the president, or you believe that some people’s votes should count more than others.
Steve
P.S. Your statement says that “Al Gore ‘won’ the popular vote but George W. Bush won the actual election.” But it seems to me that you got the scare quotes in the wrong place. There is good evidence that — and it looked to much of the rest of the world as if — more Floridians tried to vote for Gore than for Bush, and that it was thus voter harrassment, fraud, and a partisan court that made Bush president. In other words, some would say “Al Gore won (no scare quotes) the popular vote — but George W. Bush ‘won’ the actual election”. In any case, the 2000 election made it difficult for us to be a voice for democracy in the world, and the Electoral College is one reason why.
I have to not only disagree with your conclusion regarding the national popular vote movement but also about some of your initial assumptions.
You state, as if fact, that the current system “ensures that Presidents get broad support”. I don’t know what map you are looking at, but I don’t see any semblance of broad or balanced support. In neither 2004 nor 2008 was there a single red state in the sea of northeastern blue. The only blue states in the south were Florida and North Carolina and the Democrats carried those (2008 only) by a total of less than 3%. There is no red on the west coast and no blue in the heartland.
You also mention that the Electoral College gives minorities a bigger voice. If this were the case, why would the NAACP and other minority rights groups endorse the national popular vote proposal? Simple, the overwhelming majority of minorities in this country do not live in swing states. Given that the only states that matter are the swing states, minority voters are essentially rendered irrelevant. A huge Latino vote and influence in Texas doesn’t mean much if no-one campaigns in Texas.
Taranto labels the states supporting the national popular votes as Democratic states. That may be true. However, the other thing they have in common is that they are flyover states. No-one campaigns in Maryland, or Hawaii, or Massachusetts for that matter. That is the common thread. 22 of the 27 Republicans voting in the New York Senate (including 20 endorsed by the Conservative Party) supported the national popular vote bill for just those reasons.
Lastly, the national popular vote law is not a “gentleman’s agreement”. It is a legal and binding contract between states that the Constitution and the Supreme Court have upheld at every turn (interstate compact is the technical mechanism). State’s may change their mind and opt out, but not until the campaign is complete and the new President is sworn into office.
The question for me is simple, why should a voter in Ohio matter more than I do simply because I live in Norman, Oklahoma in one of the reddest states in the country? Candidates ignore me and issues that are important to Oklahoma to instead shill for votes and make promises to the swing state voters in Florida, Pennsylvania, and Ohio. My vote should be as important as theirs.
The current system of electing the president ensures that the candidates, after the primaries, do not reach out to all of the states and their voters. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind. The reason for this is the state-by-state winner-take-all rule (not mentioned in the U.S. Constitution, but now used by 48 states), under which all of a state’s electoral votes are awarded to the candidate who gets the most votes in each separate state.
Presidential candidates concentrate their attention on only a handful of closely divided “battleground” states and their voters. In 2008, candidates concentrated over two-thirds of their campaign events and ad money in just six states, and 98% in just 15 states (CO, FL, IN, IA, MI, MN, MO, NV, NH, NM, NC, OH, PA, VA, and WI). Massachusetts (the 13th largest population state, with 12 electoral college votes) and 19 of the 22 smallest and medium-small states (with less than 7 electoral college votes) were not among them. Over half (57%) of the events were in just four states (Ohio, Florida, Pennsylvania and Virginia). In 2004, candidates concentrated over two-thirds of their money and campaign visits in five states; over 80% in nine states; and over 99% of their money in 16 states, and candidates concentrated over two-thirds of their money and campaign visits in five states and over 99% of their money in 16 states.
Two-thirds of the states and people have been merely spectators to the presidential elections.
I am so tired of this bunch always trying to do away with the constitution,our rights, religion, rights to bare arms.Not to mention intimadation and cheating at the polls.I am sick of politicians period.That’s why all of them,GOP,DEM, OR WHATEVER THEY ARE,should have been replaced in the 2008 elections.They get power and money hunger and don’t care or remember who pays their saleries.They get the good ins.the rest of us get stuff that isn’t worth the paper it’s wrote on.We have one in our state that was going to help the Vets before the last election.He is now claiming to do it again.Don’t think so.My husband has been battling all kinds of health problems ever since Viet Nam. Do you think they care?? H*** no. He could have went to Can.and been better off.Am I bitter??? You better believe it!!! He loved his country too much to do that,so instead my children did without their Dad for the marjority of their growing years.He worked all the time to get tired enough so when he slept maybe he wouldn’t dream about all the things he had seen and been thru.We didn’t know about PTSD then or what Agent Orange would do to you.The POLITICIANS didn’t want us to know either. They were making too much money.I’m sorry that I have ranted on so much but it makes me so angry,it’s either that or cry.There are a lot of men with the same problems.And they at VA get thousands of dollars in Bonuses and aren’t getting the claims processed. How does this make sense???? jmo
Steve:
Either you believe in democracy and “one person, one vote” and favor direct popular election of the president, or you believe that some people’s votes should count more than others.
If you read the FEC document on the history, the Founders indeed considered this. But they were concerned that candidates would mere be chosen by the bigger states.
Indeed, in the intervening years, we’ve overcome the problem of not enough information, but as Taranto notes, we would still have the same problem; 11 states alone could choose the President.
Either you believe in democracy and “one person, one vote” and favor direct popular election of the president, or you believe that some people’s votes should count more than others.
As did the Founding Fathers, the office of the President — one person in charge of the entire executive branch of this large and diverse country and Commander-in-Chief of the military — needs to have, as much as possible, the specter of favoritism removed from his/her election. you seem to think that the dictionary definition of "democracy" includes "one man, one vote". All it is is the rule of the majority. Our Founding Fathers wanted to ensure that this was a broad majority, not a thin enough slice to get past the gate. And they wanted to make sure that the emphasis was on "broad", not on "majority", so the method even includes the possibility that a bare majority is not enough to govern. I believe they were right.
aFounding Fathers Fan:
You state, as if fact, that the current system “ensures that Presidents get broad support”. I don’t know what map you are looking at, but I don’t see any semblance of broad or balanced support.
You don’t believe that Obama had broad support at his election? Either way, he has to get broader support that with a strict popular vote. He can’t just campaign to the large population centers.
You also mention that the Electoral College gives minorities a bigger voice. If this were the case, why would the NAACP and other minority rights groups endorse the national popular vote proposal? Simple, the overwhelming majority of minorities in this country do not live in swing states.
Well, that’s your opinion. My opinion is that I agree with Taranto that this is mostly an initiative in states that generally vote Democrat who think that this will give an edge to Democratic candidates. The overwhelming majority of the NAACP’s constituents vote Democrat.
However, the other thing they have in common is that they are flyover states. No-one campaigns in Maryland, or Hawaii, or Massachusetts for that matter. That is the common thread.
And they think candidates will show up when the popular vote gives them even less impact than those 3 electoral votes do? I think that’s a fig leaf covering up the political reasons.
Don’t know how old you are, but a map graphic made the rounds after the 2000 election. Click here to see it. It showed, county by county, how the vote came out. This does not look like the map from a close election. It’s just that Al Gore concentrated his support in the most highly populated area; a very narrow portion of the country. If he could win with just those areas in blue, we’ve just made flyover country even bigger.
Lastly, the national popular vote law is not a “gentleman’s agreement”. It is a legal and binding contract between states that the Constitution and the Supreme Court have upheld at every turn (interstate compact is the technical mechanism). State’s may change their mind and opt out, but not until the campaign is complete and the new President is sworn into office.
Fair enough. My question would then be, by what means is this enforced? If, as in Taranto’s example, Massachusetts becomes what he termed "a faithless legislature", how are they held accountable?
Kohler:
Presidential candidates concentrate their attention on only a handful of closely divided “battleground” states and their voters.
Take a look at the graphic I referred FFF to. You would be replacing battleground states with battleground cities; even smaller areas. Most of New York State would become part of flyover country. This is better?
And none of you have discussed the voter fraud issue. Massive voter fraud efforts in large population areas are required in multiple states to swing the electoral votes. Winner-takes-all means your efforts only go so far in trying to rig the system. After a point, it’s moot.
Not with NPV. Instead of just trying to steal electoral votes, a few cities can try to steal an entire election.
While I favor the notion behind the NPV (one man/one vote), I’d have to agree that methodolgy being pushed is seriously flawed.
The NPV site argues against the “myth” of vote fraud and claims the actual numbers are small enough to be insignificant. I don’t have the actual stats so I’ll take their word for it. What they ignore however, is that in any given election between 2 and 3% of all votes cast are never counted. (Testimony to that effect was given by several electoral scholars during the Bush V. Gore USSC case.)
In our nation’s history we’ve had a whopping total of four elections where the EC votes played a questionable role. One of those was prior to a national voting standard and several of the States held no popular elections at all. That leaves three where there were actual state-level popular votes conducted and ballots tabulated. (1876, 1888 and 2000)
In all of those three cases the winning margin in the total popular vote counts was lower than the minimum 2% of votes that were never counted so even a NPV wouldn’t have resolved the issue. All three would have resulted in endless nation-wide recounts. In fact 16 of the elections since 1876 would have ended with a President who would have won by a margin that was less than the uncounted vote total. Instead of three disputed elections, we would have had 16.
Again, the NPV supporters claim (in the “Myths” section on their WWW site) that endless recounts won’t happen because there are deadlines set in law for final vote counts. But as we saw in 2000, the courts are faced with questions of competing legal requirements (laws that set dates for counts to be finalized against laws that set counting standards, etc…) the courts are left to decide which law prevails and, as the FL courts did in 2000, the deadline can and has lost out before. Would the same people who cried to “Let the recounts continue!” in 2000 and now support the NPV be willing to accept a loss in the future based on a date set in law? I doubt it.
Kohler, in his/her post earlier said “The current system of electing the president ensures that the candidates, after the primaries, do not reach out to all of the states and their voters. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind.”
The NPV, for all the hype, doesn’t change this scenario much. You can simply substitue “County” for “State” and that will be the net effect of a NPV. Yeah, some major cities across the country will suddenly get attention from candidates. The smaller communities in the suburbs and in rural areas will never see them. I suppose those rural voters will get what they need to know by watching TV, right? After all, all of the major media outlets are in the bigger cities…
No, instead of focusing on 12 or 13 states the candidates will focus on a handful of major cities. Here’s a piece of food for thought – the top 15 metro areas in the U.S. hold just over 50% of the total U.S. population. Assuming the percentage of eligible voters is fairly equeal across the entire U.S. population in all regions, those 15 areas are all any candidate needs to win. Not only will most states still be ignored, many regions with those states that do get attention will be ignored as well.
The NPV, while laudable in it’s ideals, fails to fix the very problem is is intended to fix and creates a real possibility of even larger problems.
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.”
The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities (going as obscurely far down in name recognition as Arlington, TX) is only 19% of the population of the United States.
When presidential candidates campaign to win the electoral votes of closely divided battleground states, such as in Ohio and Florida, under the state-by-state winner-take-all rules, the big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami certainly did not receive all the attention or control the outcome in Ohio and Florida in 2000 and 2004.
Likewise, under a national popular vote, every vote everywhere will be equally important politically. There will be nothing special about a vote cast in a big city or big state. When every vote is equal, candidates of both parties will seek out voters in small, medium, and large towns throughout the states in order to win. A vote cast in a big city or state will be equal to a vote cast in a small state, town, or rural area.
For example, in California state-wide elections, candidates for governor or U.S. Senate don’t campaign just in Los Angeles and San Francisco, and those places don’t control the outcome (otherwise California wouldn’t have recently had Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger). A vote in rural Alpine county is just an important as a vote in Los Angeles.
If the National Popular Vote bill were to become law, it would not change the need for candidates to build a winning coalition across demographics. Any candidate who yielded, for example, the 21% of Americans who live in rural areas in favor of a “big city” approach would not likely win the national popular vote. Candidates would still have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as voters in Ohio.
The influence of minority voters has decreased tremendously as the number of battleground states dwindles. For example, in 1976, 73% of blacks lived in battleground states. In 2004, that proportion fell to a mere 17%.
The Asian American Action Fund, Jewish Alliance for Law and Social Action, NAACP, National Latino Congreso, and National Black Caucus of State Legislators endorse a national popular vote for president.
There have been 22,000 electoral votes cast since presidential elections became competitive (in 1796), and only 10 have been cast for someone other than the candidate nominated by the elector’s own political party. The electors are dedicated party activists of the winning party who meet briefly in mid-December to cast their totally predictable votes in accordance with their pre-announced pledges. Faithless electors are not a practical problem, and most states have complete authority to remedy any problem there could be, by means of state law.
If a Democratic presidential candidate receives the most votes, the state’s dedicated Democratic party activists who have been chosen as its slate of electors become the Electoral College voting block. If a Republican presidential candidate receives the most votes, the state’s dedicated Republican party activists who have been chosen as its slate of electors become the Electoral College voting block. The winner of the presidential election is the candidate who collects 270 votes from Electoral College voters from among the winning party’s dedicated activists.
The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).
“Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”
Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void. Such an attempt would also violate existing federal law. Compliance would be enforced by Federal court action
The U.S. Constitution, existing federal statutes, and independent state statutes guarantee “finality” in presidential elections long before the inauguration day in January.
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.
In addition, in almost all states, state statutes already impose independent (typically earlier) deadlines for finalizing the count for the presidential election. The U.S. Supreme Court has also ruled that state election officials and the state judiciary must conduct counts and recounts in presidential elections within the confines of existing state election laws.
It may be argued that the schedule established by the U.S. Constitution may sometimes rush the count (and possibly even create injustice). However, there can be no argument that this schedule exists in the U.S. Constitution, federal statutes, and state statutes; that this schedule guarantees “finality” prior to the meeting of the Electoral College in mid-December. This existing constitutional schedule would govern the National Popular Vote compact in exactly the same way that it governs elections under the current system.
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.
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).
Dear Doug,
Thanks for responding to my post. You’ve created a useful forum here and we’ve seen some interesting discussion. But I think you’re still missing the forest for the trees.
In your response, you said “you seem to think that the dictionary definition of ‘democracy’ includes ‘one man, one vote’. All it is is the rule of the majority.” Actually, I don’t think there is such a thing as “THE dictionary definition”; there are many dictionaries, and (as Wikipedia notes) “there is no specific, universally accepted definition of ‘democracy’.” And, while it is interesting to consider those definitions (in fact, Wikipedia also says “in a representative democracy, every vote has equal weight”), my point does not depend on dictionary definitions. Definitions are trees; here’s forest (as I see it) — Either you believe in “one person, one vote” and favor direct popular election of the president, or you believe that some people’s votes should count more than other’s.
You may have good reasons for favoring the Electoral College. By the way, I’ve read your posts, links, and the responses here, though, and I don’t find your reasons persuasive. But, as I said, that doesn’t matter (to me, those reasons are trees, not the forest). Either one believes in the rule of the majority and favors direct popular election of the president, or one believes (for whatever reasons) that some people’s votes should count more than other’s.
You refer to a “broad majority”, but it’s not any kind of majority if the presidential candidate who receives more popular votes than his or her opponent does not become the president.
It’s also interesting to hear all this talk about “the Founding Fathers”. It’s useful to consider their intentions (and their disagreements), but given the fact that some of them owned slaves and that they intended that women should not be allowed to vote, their imputed intentions don’t carry a lot of weight with me. Again, it doesn’t matter. The Electoral College still means that some people’s votes count more than other’s.
Steve
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