Why I Like the Electoral College (and Not National Popular Vote Interstate Compact)
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.
Filed under: Democrats • Doug • Government • Politics
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Actually, the NPV compact does have the power to prevent this sort of move. An interstate compact, unlike ordinary statutes, binds future legislatures to follow it “until such time as the state withdraws from the compact in accordance with the compact’s terms.” And the compact’s terms, as mentioned, prevent the states from pulling out of the agreement in the period of the actual election. So no, it is not a “gentleman’s agreement” but rather a fully binding contract.
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). 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.
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.
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.”
“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 National Popular Vote compact is, first of all, a state law. It is a state law that would govern the manner of choosing presidential electors. A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all rule that is currently the law in 48 states.
A secretary of state is indeed bound by state law. But the legislators can change it. If there was indeed a constitutional issue with regards to that change, we’d have a worse situation than in 2000. Instead of two candidates fighting it out, we’d have multiple state legislatures battling.
As I stated above, while that is true, the legislature IS bound by an interstate compact.
An interstate compact, unlike ordinary statutes, binds future legislatures to follow it “until such time as the state withdraws from the compact in accordance with the compact’s terms.” And the compact’s terms, as mentioned, prevent the states from pulling out of the agreement in the period of the actual election. So no, it is not a “gentleman’s agreement” but rather a fully binding contract.