A Philosophical Question Regarding the Electoral College

June 7, 2012 at 12:12 am

IMO the main virtue of continuing with the Electoral College system is that any popular vote system virtually requires a national election bureaucracy and a single, uniform voter qualification rule as a condition for it to function without constitutional concerns (for example, equal protection would presumably require Texas felons to have the same right – or lack thereof – to vote for president as a New York felon; the EC system neatly sidesteps this by giving nobody a constitutional right to do anything other than choose presidential electors if they are otherwise qualified to vote in their state).

It’s not a huge virtue, but in this political environment I can’t see any way to establish a national election bureaucracy that wouldn’t immediately be perceived as serving someone’s partisan interests, just as I can’t see state-compiled popular vote totals as sufficiently trustworthy to decide the presidency as every county election administrator in the country would be a potential weak link.

Gustopher

June 7, 2012 at 2:44 am

I’ve never understood the value of states.

They’re large enough to be completely removed from the people they govern, and small enough that they are easily corrupted. Is there anything that they do that would not be better done at the federal or county level?

Stormy Dragon

June 7, 2012 at 3:10 am

@Gustopher:

Is there anything that they do that would not be better done at the federal or county level?

Issues which need to be managed at a level larger than a county, but on which there is not sufficient agreement to impose a national rule are best handled by states so as to provide the regional accomodation necessary to keep a country this large politically stable.

TonyW

June 7, 2012 at 7:33 am

Perhaps discontinuing the EC, say, 20 years after the change is made will provide sufficient cover to take the partisan element away?

superdestroyer

June 7, 2012 at 8:01 am

Getting rid of the electoral college just makes the U.S. a one-party-state faster.

If you are really worried about the future of presidential elections, why not try to break the strangle hold of Iowa and New Hampshire has on choosing the presidents. Popular election of the president means that who ever the Democrats nominate will always win the election. It also means that if the same Democrat wins the Iowa caucus and the New Hampshire primary, then every will not who is going to be the next president a year before the inaugural.

Dean Esmay

June 7, 2012 at 8:56 am

For starters: I’m with Chris Lawrence.

That said, it doesn’t answer your question, which is, what state would I move to in order to make my vote more powerful? And the answer is, I just wouldn’t, but, there have been those who’ve attempted a libertarian movement by going to one of the small New England states, I forget which one.

Here’s my counter-question. If your vote in the Senate is not of equal value to everyone else’s–and it isn’t–why don’t you object to that? If your vote in Congress is not of equal weight (and even that is not), why don’t you object to that?

If you really want to increase the individual power of your vote, there’s only one thing to do: move to the least populous state, Wyoming. Proportionally speaking, they are mighty: a single House seat but that represents less than 600,000 people! And two entire Senate seats and three entire Electoral votes! My God man, think of the power you could wield being a Wyoming voter! You’d be easily worth three or four California voters! (Maybe more, I’m too lazy to try the math at the moment.) If I wanted to shake up politics I would go to that very Republican state and vote Democrat and try to organize the Democratic Party there, now that would be potentially powerful.

But you know really, is the vote worth THAT much, to turn my life so upside-down?

So my counter-question for those who oppose the electoral college is this: why don’t you also propose to do away with the Senate? In fact, shouldn’t that be a much higher priority? The Senate is MASSIVELY less representative than the electoral college. I mean, say what you want about the few occasions where a President has won with a half a percent less or so than someone else, EVERY time we vote for a Senator we’re taking part in a system that makes Texans and Californians MASSIVELY less represented than Alaskans and Wyomingans (Wyomingites? Wyomingers? Whatever.)

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In short the electoral college is meant to make the Presidency MORE popularly representative than the Senate, but LESS popularly representative than the House. It’s a compromise between Republicanism and Democracy.

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All of the above said, I am actually rather radical. I do think we should do away with the Senate. But also think we should do away with the Presidency, or reduce it to a mostly-ceremonial office. I think we should adopt a parliamentary system closer to what they have in Canada (or, better yet, Australia). But my desire to do these things is dashed against the same thing that prevents the electoral college from being changed: the massive effort it would take to change it, and the lack of popular will to same.

Once you start talking about getting rid of the electoral college, you run into the fact that it requires amending the Constitution, and that’s a massive, massive effort. And it puts you instantly into the thorny questions of HOW to replace it. You’re going to have to do what Chris Lawrence suggests above: create a uniform set of voting standards and procedures nationwide. Not easy. You’re pretty much going to have to have the Federal government in charge of vote-counting too.

Let’s try to imagine Election 2000 over again if it were a popular vote. For all the wailing that George W. Bush supposedly lost the popular vote, we don’t actually know that to be true. In many states, once it was clear that Gore or Bush had won the state, they simply stopped counting a lot of ballots. Possible irregularities happen in every state in every election; imagine if, instead of simply fighting over Florida in 2000, both the Bush and Gore campaigns had gone on a NATIONWIDE hunt looking for any precincts where they could get recounts that might have favored them. This almost certainly would have gone on for months. It is DISTINCTLY possible that Gore DID NOT win the 2000 popular vote; the margin was so close that a nationwide recount and a nationwide look for every precinct everywhere where there might be irregularities might have given a different result. A friend of mine who was a Republican election monitor in Michigan was eyewitness to MASSIVE voter fraud there, with elected officials LITERALLY filling out thousands of ballots on their own in downtown Detroit, and when he objected he was ejected. This should have been a huge scandal but Republicans in Michigan didn’t bother fighting it, they knew they had lost Michigan regardless and concentrated their efforts on Florida.

If it were purely on the popular vote, odds are the recounting would have gone on so long nationwide that the vote would have been thrown to the House.

So if you’re going to do away with the electoral college, bear in mind you’re going to need:

1) A Constitutional amendment and the political will to pull that off
2) Nationwide uniform voting standards
3) Nationwide uniform counting standards
4) Nationwide election monitoring
5) Be prepared for it to take weeks after election day to determine who won any time the vote is even remotely close, and probably still many weeks before the vote count is official.

If you’re ready for all that, then I say good luck, because I do think it’s flawed. I’d just also ask you to please consider getting rid of the Senate or making it propertional-representation-based too. 😉

Dean Esmay

June 7, 2012 at 9:02 am

By the way, to go a completely different direction (do I contradict myself? Yes. “I am large, I contain multitudes.”) I do think we should reform the electoral college, because it *is* broken. I don’t think it’s broken because not all votes are equal, because that’s a structural problem with the House, the Senate, AND the Electoral College. It’s a problem with ALL of them.

I do not buy the “it’s not fair” arguments.

However, the current structure of the college effectively means only a dozen or so states really get much Presidential attention.

CGP Grey (who has a series of videos that are ALL wonderful) managed to give the most effective presentation on why the electoral college is broken. I don’t consider most of his arguments all that strong, for reasons I’ve already stated above. HOWEVER, he puts his fnger on the real problem, which is that the electoral college DOESN’T do what it’s supposed to do (balance small-state power against large-state power–IT DOES NOT) and because there’s a HUGE hole it in that would allow someone to cheat the system and win the Presidency with only a small number of states and with well under 25% of the popular vote.

No really. Not only does the Electoral College result in a dozen or so medium-to-large states determining the election, BUT, you can win the Presidency with less than half the states and less than a quarter of the popular vote. Watch him demonstrate, it’s brilliant:

http://www.youtube.com/watch?v=7wC42HgLA4k

Watch it. It’s brilliant.

Jen

June 7, 2012 at 9:04 am

I’m from New Hampshire. The electoral college is just about the only thing that would enable a tiny little state such as ours, with our four measly little electoral college votes, to actually be considered a swing state worth paying attention to in a tight election year like this one.

IMHO, the electoral college is one of the very few reasons protecting a small state from being completely ignored. If we didn’t have it, the only states that would get any attention during the election cycle (and frankly that leads to things like federal funding for highways) would be the large states with high populations.

Basically, eliminating the electoral college would turn any small state with a low population into a total funding backwater. Nothing would get funded.

john personna

June 7, 2012 at 9:09 am

I’d be fine with a national vote. Better a national party vote, and parliamentary system.

If you want states though, why don’t you adjust them? At some point in the past California and Wyoming had similar numbers of voters. Now they don’t. etc.

(I think Chris’ concern is a little left-field. We have Social Security numbers. Combine them with felony databases, and we have a voter log.)

Dean Esmay

June 7, 2012 at 9:11 am

By the way, superdestroyer’s mistaken that getting rid of the electoral college would move us to a one-party state. Because of our system–whether we do away with the electoral college or not–we will ALWAYS have a two-party system unless we completely redesign the system.

Two-party is a STATISTICAL CERTAINTY, and can’t be broken without fundamental electoral reform. Once again, CGP Grey demonstrates why. And this doesn’t just apply to the US, it applies to every system that uses our same basic voting method (first past the post):

john personna

June 7, 2012 at 9:12 am

@Jen:

Right, or consider New Hampshire. If balanced states are the goal, why not grow Maine southward?

Steven L. Taylor

June 7, 2012 at 10:08 am

@Chris Lawrence: That’s an interesting point and I take the practical implications of what you are saying.

However, speaking in the realm of the theoretical, the notion of standardizing voting strikes me as a good thing–voting is a fundamental (and foundational) right in a representative democracy which should be enjoyed equally throughout a given democratic country.

PJ

June 7, 2012 at 10:15 am

@Dean Esmay:

Two-party is a STATISTICAL CERTAINTY, and can’t be broken without fundamental electoral reform. Once again, CGP Grey demonstrates why. And this doesn’t just apply to the US, it applies to every system that uses our same basic voting method (first past the post)

The UK and Canada beg to differ.
The Liberal Democrats in the UK have been being represented in the Parliament since 1992 (and since 1983 if you count the alliance with the SDP), getting between 18% and 23% of the votes.
In Canada, the third largest party has won 18.91%, 18.18%, 17.48%, 15.68%, 19.35%, 18.84%, 16.04%, 20.38%, 18.81%, and 17.88% in the ten latest elections.

Steven L. Taylor

June 7, 2012 at 10:16 am

@Dean Esmay:

Thanks for the responses.

A couple of quick thoughts:

1. Actually, I would prefer massive reform to the Senate, but that’s a whole other discussion. But if your point is that you want me to have some intellectually consistency on this subject, rest assured that I do: I find it highly problematic that Wyoming and California, with populations of just over half a million and ~38 million respectively, have identical legislative power in a chamber that has not only full veto power over legislation, but enhanced veto power over legislation given the way the filibuster is used.

Of course, as unlikely as EC reform is, Senate reform is light-years beyond that in difficulty. I can envision EC reform, I really can’t envision Senate reform.

2. I think that the monitoring and administration issue is not as complex as you make it out to be, as really it wouldn’t be all that different than it is now: voting in precincts, contained in counties, contained in states. Some of the rules would be different, but the basic mechanics would be the same. We already tally the popular vote now–the issue isn’t the counting, it is what we do with the count.

3. This is no re-inventing the wheel. Lots of countries around the world elect presidents via the popular vote.

Steven L. Taylor

June 7, 2012 at 10:17 am

@Dean Esmay:

By the way, superdestroyer’s mistaken that getting rid of the electoral college would move us to a one-party state

It is best to ignore SD on this topic. To him, everything leads to a one-party state. Popcorn, sunsets, you name it.

Steven L. Taylor

June 7, 2012 at 10:20 am

@Jen: The thing is, thought, in a close electoral contest instead of creating swing states you make every voter more important.

Beyond that, let me ask about the following:

Basically, eliminating the electoral college would turn any small state with a low population into a total funding backwater. Nothing would get funded.

And observation and a question.

The observation is: the president doesn’t directly make decisions on spending.

The question: what is it that you think New Hampshire has gotten in the past via the federal budget that they only received (funding-wise) because they were a swing state in a given presidential contest?

Steven L. Taylor

June 7, 2012 at 10:36 am

@Dean Esmay: BTW, were I starting from scratch, I would prefer a parliamentary system as well. I might keep the Senate, but use a model like German federalism in which bills that directly affect the states as states require both chambers to agree and where the first chamber can override the second with bills that are national in scope. See here for some basics.

This, of course, is never going to happen.

However, as I noted in another post, I do think that a confluence of events could lead to a push to reform the EC. (But I concur that probabilities are low).

However, to summarize the linked post, if Obama were to loss the popular by a million and yet win the EC (a possible, if unlikely, outcome), I think a lot of Reps would want to reform the EC.

Two elections with a pop vote losers wining the EC might (and I stress might) change some minds.

Steven L. Taylor

June 7, 2012 at 10:40 am

@Gustopher: As a general proposition, a country of our size needs some form of localized rule. I think that federalism is needed, but I also don’t worship the states as being special unto themselves. As I often note: it is impossible, I would argue, to separate the interests of states from the people who live in those states. The ultimate unit should be the individual.

On that last point: this is why I find so-called libertarians who stress states’ rights to be odd intellectual creatures, because the issue for a libertarian should be the systematic choices that most enhance individual liberty, whether that choice is made by the central or local governments. As such, libertarians who would empower states to the detriment of individual rights are being intellectually inconsistent.

Jen

June 7, 2012 at 10:42 am

@Steven L. Taylor: Fair question.

I cannot point to a direct item that was funded simply because of our position as a swing state in a presidential contest–and of course I know that the president doesn’t make decisions on spending!

All I can really do is point to the logic that we have about 1 million people in this state, and the current appearance of the electoral college map makes this a close race based on electoral college votes, therefore our 4 little votes might actually matter. If we didn’t have the electoral college, the campaign focus wouldn’t be on gaining our 4 votes. It would be making sure to get as many votes as possible in voter-dense states, like California, Texas, and so on. Those states receive attention and funding due to their size. Wasn’t this the whole point of the electoral college and giving every state two senators regardless of population? To level the playing field somewhat? (I see from the comment above that you favor reforming this system, but I don’t think I could disagree more on the Senate issue. The House has representation by population and that is where the spending power/budget lies. I think the balance is both necessary and elegant. For me, the real need for reform is in the redistricting process. If every district or most districts were competitive, representatives would need to moderate their views rather than the primaries being the “real” contests in many districts. Totally separate issue, I know.)

I can’t make too impassioned a case for the electoral college topic, only a lukewarm one based on a gut sense that the smaller you are, the easier you are to ignore.

al-Ameda

June 7, 2012 at 10:46 am

what state would you need to move to get you to change your party affiliation/vote for the candidate opposite from the one you are currently likely to vote for?

Well, I am a Democrat, and I live in California a state that sends more income tax dollars to Washington DC than it gets back in federal program and project dollars – I believe the figure is 84% these days.

These days there is not a chance I would change my party affiliation based on a move to another state. Perhaps 20-30 years ago I’d have moved to Connecticut or Vermont if I wanted to be a Republican.

Steven L. Taylor

June 7, 2012 at 10:49 am

@Jen:

The House has representation by population and that is where the spending power/budget lies.

Actually, they have the power to initiate new spending, but that’s it in terms of their powers over this matter. All spending is ultimately approved by both chambers with co-equal influence.

I can’t make too impassioned a case for the electoral college topic, only a lukewarm one based on a gut sense that the smaller you are, the easier you are to ignore.

I would argue that you are influenced by the mindset that the states themselves are getting some sort of representation via the EC. They do get some disproportionate influence (NH certainly does because of the way that votes are assigned) and swing status does confer attention. However, the degree to which policy decisions are made because of the EC is dubious unless other factors are included, including size (which matters no matter what). Florida’s significance is enhanced because it is a swing state with size and this influence US-Cuban relations because of a very specific and peculiar circumstance with the Cuban-American community.

But I would return to the notion that beyond one’s gut, it is worth considered what the actual benefits/costs are to this question of the EC in terms of one’s own state, and the system as a whole.

James Joyner

June 7, 2012 at 11:58 am

@Steven L. Taylor:

It is best to ignore SD on this topic. To him, everything leads to a one-party state. Popcorn, sunsets, you name it.

That’s because it’s a zero sum game.

James Joyner

June 7, 2012 at 12:01 pm

@Chris Lawrence: @Steven L. Taylor: The related argument, raised quite a bit after the 2000 election debacle, is the prospect of a national recount in close elections and the possibilities for mischief caused at the precinct level if partisan counters know how many votes they need to steal. But we could set up the rules in such a way as to make the need for recounts non-existent. Even in 2000, Gore’s margin should have been sufficient to just declare him the winner were we running a national election.

Steven L. Taylor

June 7, 2012 at 12:22 pm

@James Joyner:

That’s because it’s a zero sum game.

Oh, dear. That sparked a hearty LOL (sorry, everyone, inside joke).

But we could set up the rules in such a way as to make the need for recounts non-existent. Even in 2000, Gore’s margin should have been sufficient to just declare him the winner were we running a national election.

This is an important point. Typically full recounts (as a general proposition require extremely close elections in the aggregate.

Also: if we had a run-off, the odds of such a close election become smaller.

Dodd

June 7, 2012 at 12:44 pm

I simply don’t understand the EC hate. Or why we have to beat this horse on a regular basis.

But, then, I like the EC. We are not, as everyone discussing this issue already knows, a democracy; we’re a representative republic. If the Founders had wanted a democracy, they’d have formed one. Their wisdom in not doing so has been well-proven.

The USA was designed to be a federation. Power was to reside at the lowest feasible level, as close to the people from whom it derives as possible. EC reform arguments necessarily presuppose (without usually saying so) that the grotesquely metastasized federal government and the far-reaching powers it has appropriated to itself are irreversible and proper. They’re not. Abolishing the EC would be a dreadful nail in the coffin of federalism. That would be bad.

Nor are parliamentary systems preferable to republicanism. They lack the checks and balances we have. But, again, if one desires more power at the federal level, they’re certainly attractive for just that reason. They’re so much more effective and efficient at making use of (and expanding) that overweening power. Tom Friedman would no doubt agree. Repealing direct election of Senators so as to revivify its designed ‘reflective chamber’ status is a much better idea.

The EC is a component of that fundamental structure of checks and balances. Those were quite consciously intended, as a whole, to safeguard our rights and liberties by hampering the ability of men attracted to power (and therefore the least to be trusted with it) to abuse it. And we’ve had quite enough dilution of those safeguards already, thank you. So unless you can propose a complete overhaul that replaces the whole structure with an equally well thought-out, effective set of such protections, kindly leave the EC alone.

Steven L. Taylor

June 7, 2012 at 12:48 pm

@Dodd:

We are not, as everyone discussing this issue already knows, a democracy; we’re a representative republic. If the Founders had wanted a democracy, they’d have formed one. Their wisdom in not doing so has been well-proven.

Ok, here I go: a) what does it mean to you that we are a “representative republic” rather than a “democracy”? b) name me a country that is a “democracy” by your definition (and what makes it such?), and c) do you see a difference between a “representative republic” and a “representative democracy”?

And, d) how do you square the democracy/republic distinction with Madison (my argument at the link)?

There is also the problem that the EC doesn’t even work as intended, thus making it a function of the wisdom of the Framers rather problematic.

Steven L. Taylor

June 7, 2012 at 12:50 pm

@Dodd: Let me break out and expand on d:

The EC is a component of that fundamental structure of checks and balances. Those were quite consciously intended, as a whole, to safeguard our rights and liberties by hampering the ability of men attracted to power (and therefore the least to be trusted with it) to abuse it. And we’ve had quite enough dilution of those safeguards already, thank you. So unless you can propose a complete overhaul that replaces the whole structure with an equally well thought-out, effective set of such protections, kindly leave the EC alone.

The problem is, this s fundamentally untrue.

See my post: Looking to the Design of the Electoral College.

The notion that the EC is an integral part of a carefully designed machine is a story we tell ourselves to rationalize a rather strange method for selecting the president.

john personna

June 7, 2012 at 2:35 pm

The parliamentary system reduces the odds of two-party squeakers as well.

Steven L. Taylor

June 7, 2012 at 2:49 pm

@john personna: Actually, it isn’t parliamentarism itself that increases the likelihood of mulitpartism as much as it is that most parliamentary systems also use some form of proportional representation to elect members.

The UK, though it does have a handful of third parties, has been a pretty much two party dominant system (the current coalitional government between the Conservative and the LDP is an anomaly).

Also: our primary system helps reinforce bipartism (by containing factional competition within the mainline parties. See, e.g., the GOP and the Tea Party).

Steven L. Taylor

June 7, 2012 at 2:51 pm

@Steven L. Taylor: Make that “ISN’T” (rather important). I will go back and edit, but for those who get these via e-mail first, I thought I make a note.

toto

June 7, 2012 at 3:06 pm

@Chris Lawrence:

There is nothing incompatible between differences in state election laws and the concept of a national popular vote for President. That was certainly the mainstream view when the U.S. House of Representatives in1969 supported a national popular vote by a 338–70 margin. It retained state control over elections.

It was endorsed by Richard Nixon, Gerald Ford, Jimmy Carter, and various members of Congress who later ran for Vice President and President such as then-Congressman George H.W. Bush, then-Senator Bob Dole, and then-Senator Walter Mondale.

The American Bar Association also endorsed it.

It provided that the popular-vote count from each state would be added up to obtain the nationwide total for each candidate. The National Popular Vote compact does the same.

Under the current system, the electoral votes from all 50 states are comingled and simply added together, irrespective of the fact that the electoral-vote outcome from each state was affected by differences in state policies, including voter registration, ex-felon voting, hours of voting, amount and nature of advance voting, and voter identification requirements.

Under both the current system and the National Popular Vote compact, all of the people of the United States are impacted by the different election policies of the states. Everyone in the United States is affected by the division of electoral votes generated by each state. The procedures governing presidential elections in a closely divided battleground state (e.g., Florida and Ohio) can affect, and indeed have affected, the ultimate outcome of national elections.

The Equal Protection Clause of the 14th Amendment only restricts a given state in the manner it treats persons “within its jurisdiction.” The Equal Protection Clause imposes no obligation on a given state concerning a “person” in another state who is not “within its [the first state’s] jurisdiction.” State election laws are not identical now nor is there anything in the National Popular Vote compact that would force them to become identical. Indeed, the U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers in the U.S. Constitution permit states to conduct elections in varied ways. The National Popular Vote compact is patterned directly after existing federal law and preserves state control of elections and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President.

toto

June 7, 2012 at 3:11 pm

Equal representation of the states in the U.S. Senate is explicitly established in the U.S. Constitution. This feature cannot be changed by state law or an interstate compact.

In fact, equal representation of the states in the U.S. Senate may not even be amended by an ordinary federal constitutional amendment. Article V of the U.S. Constitution provides:
“No State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Thus, this feature of the U.S. Constitution may only be changed by a constitutional amendment approved by unanimous consent of all 50 states.

In contrast, the U.S. Constitution explicitly assigns the power of selecting the manner of appointing presidential electors to the states. The enactment by a state legislature of the National Popular Vote bill is an exercise of a legislature’s existing powers under the U.S. Constitution.

The National Popular Vote bill preserves the constitutionally mandated Electoral College and state control of elections. It ensures that every vote is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

The National Popular Vote bill would change existing state winner-take-all laws that award all of a state’s electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but since enacted by 48 states), to a system guaranteeing the majority of Electoral College votes for, and the Presidency to, the candidate getting the most popular votes in the entire United States.

Under National Popular Vote, every vote, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count. The candidate with the most popular votes in all 50 states and DC would get the 270+ electoral votes from the enacting states. That majority of electoral votes guarantees the candidate with the most popular votes in all 50 states and DC wins the presidency.

National Popular Vote would give a voice to the minority party voters in each state. Now their votes are counted only for the candidate they did not vote for. Now they don’t matter to their candidate.

And now votes, beyond the one needed to get the most votes in the state, for winning in a state are wasted and don’t matter to candidates. Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

With National Popular Vote, elections wouldn’t be about winning states. No more distorting and divisive red and blue state maps. Every vote, everywhere would be counted equally for, and directly assist, the candidate for whom it was cast.

Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states. The political reality would be that when every vote is equal, the campaign must be run in every part of the country.

toto

June 7, 2012 at 3:19 pm

@Dean Esmay:

The National Popular Vote bill preserves the Electoral College and state control of elections. It changes the way electoral votes are awarded in the Electoral College.

The Electoral College is now the set of dedicated party activists, who vote as rubberstamps for presidential candidates. In the current presidential election system, 48 states award all of their electors to the winners of their state. This is not what the Founding Fathers intended.

The Founding Fathers in the Constitution did not require states to allow their citizens to vote for president, much less award all their electoral votes based upon the vote of their citizens.

The presidential election system we have today is not in the Constitution, and enacting National Popular Vote would not need an amendment. State-by-state winner-take-all laws to award Electoral College votes, were eventually enacted by states, using their exclusive power to do so, AFTER the Founding Fathers wrote the Constitution. Now our current system can be changed by state laws again.

Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in section 1 of Article II of the U.S. Constitution– “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.”

The constitution does not prohibit any of the methods that were debated and rejected. Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation’s first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century.

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 method) 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, and only three states used the state-by-state winner-take-all method to award electoral votes.

The current 48 state-by-state winner-take-all method (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 entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. It 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 method.

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 method is used by 48 of the 50 states. States can, and frequently have, changed their method of awarding electoral votes over the years. Maine and Nebraska do not use the winner-take-all method– a reminder that an amendment to the U.S. Constitution is not required to change the way the President is elected.

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 abnormal process is to go outside the Constitution, and amend it.

toto

June 7, 2012 at 3:22 pm

@Dean Esmay:

In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%,, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%.

Most Americans don’t care whether their presidential candidate wins or loses in their state. . . they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was directly and equally counted and mattered to their candidate. Most Americans think it’s wrong for the candidate with the most popular votes to lose. We don’t allow this in any other election in our representative republic.

More than 2,110 state legislators (in 50 states) have sponsored and/or cast recorded votes in favor of the bill.

The National Popular Vote bill has passed 31 state legislative chambers in 21 small, medium, and large states. The bill has been enacted by 9 jurisdictions possessing 132 electoral votes – 49% of the 270 necessary to go into effect.

NationalPopularVote
Follow National Popular Vote on Facebook via NationalPopularVoteInc

toto

June 7, 2012 at 3:25 pm

@Dean Esmay:

With both the current system and National Popular Vote, 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.

The U.S. Constitution requires the Electoral College to meet on the same day throughout the U.S. (mid-December). This sets a final deadline for vote counts from all states. In Bush v. Gore, the Supreme Court has interpreted the federal ‘safe harbor’ statute to mean that the deadline for the state to finalize their vote count is 6 days before the meeting of the Electoral College.

In addition, in almost all states, state statutes already impose independent (typically earlier) deadlines for finalizing the count for the presidential election.

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.’ They list the electors and the number of votes cast for each. The Congress meets in joint session to count the electoral votes reported in the Certificates 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.

The U.S. Constitution, existing federal statutes, and independent state statutes guarantee ‘finality’ in presidential elections long before the inauguration day in January.

toto

June 7, 2012 at 3:27 pm

@Dean Esmay:

The current state-by-state winner-take-all system of awarding electoral votes maximizes the incentive and opportunity for fraud and voter suppression. A very few people can change the national outcome by adding, changing, or suppressing a small number of votes in one closely divided battleground state. With the current system all of a state’s electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state. The sheer magnitude of the national popular vote number, compared to individual state vote totals, is much more robust against manipulation.

National Popular Vote would limit the benefits to be gained by fraud or voter suppression. One suppressed vote would be one less vote. One fraudulent vote would only win one vote in the return. In the current electoral system, one fraudulent vote could mean 55 electoral votes, or just enough electoral votes to win the presidency without having the most popular votes in the country.

The closest popular-vote election in American history (in 1960), had a nationwide margin of more than 100,000 popular votes. The closest electoral-vote election in American history (in 2000) was determined by 537 votes, all in one state, when there was a lead of 537,179 (1,000 times more) popular votes nationwide.

For a national popular vote election to be as easy to switch as 2000, it would have to be two hundred times closer than the 1960 election–and, in popular-vote terms, forty times closer than 2000 itself.

Which system offers voter suppressors or fraudulent voters a better shot at success for a smaller effort?

toto

June 7, 2012 at 3:28 pm

@Dean Esmay:

The idea that recounts will be likely and messy with National Popular Vote is distracting.

The 2000 presidential election was an artificial crisis created because of Bush’s lead of 537 popular votes in Florida. Gore’s nationwide lead was 537,179 popular votes (1,000 times larger). Given the miniscule number of votes that are changed by a typical statewide recount (averaging only 274 votes); no one would have requested a recount or disputed the results in 2000 if the national popular vote had controlled the outcome. Indeed, no one (except perhaps almanac writers and trivia buffs) would have cared that one of the candidates happened to have a 537-vote margin in Florida.

Recounts are far more likely in the current system of state-by-state winner-take-all methods.

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.

We do and would vote state by state. Each state manages its own election and is prepared to conduct a recount.

The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires.

Given that there is a recount only once in about 160 statewide elections, and given there is a presidential election once every four years, one would expect a recount about once in 640 years with the National Popular Vote. The actual probability of a close national election would be even less than that because recounts are less likely with larger pools of votes.

The average change in the margin of victory as a result of a statewide recount was a mere 296 votes in a 10-year study of 2,884 elections.

No recount would have been warranted in any of the nation’s 56 previous presidential elections if the outcome had been based on the nationwide count.

With both the current system and the National Popular Vote, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the meeting of the Electoral College.

toto

June 7, 2012 at 3:34 pm

@Jen:

The National Popular Vote would not eliminate the Electoral College.

The candidate with the most popular votes in all 50 states and DC would get the 270+ Electoral College votes from the enacting states. That majority of Electoral College votes guarantees the candidate with the most popular votes in all 50 states and DC wins the presidency.

Now with state-by-state winner-take-all laws (not mentioned in the U.S. Constitution, but since enacted by 48 states), presidential elections ignore 12 of the 13 lowest population states (3-4 electoral votes), that are non-competitive in presidential elections. 6 regularly vote Republican (AK, ID, MT, WY, ND, and SD), and 6 regularly vote Democratic (RI, DE, HI, VT, ME, and DC) in presidential elections. Voters in states that are reliably red or blue don’t matter. Candidates ignore those states and the issues they care about most.

Support for a national popular vote is strong in every smallest state surveyed in recent polls among Republicans, Democrats, and Independent voters, as well as every demographic group. Support in smaller states (3 to 5 electoral votes): AK -70%, DC -76%, DE –75%, ID -77%, ME – 77%, MT- 72%, NE – 74%, New Hampshire–69%, NE – 72%, NM – 76%, RI – 74%, SD- 71%, UT- 70%, VT – 75%, WV- 81%, and WY- 69%.

A survey of New Hampshire voters showed 69% overall support for a national popular vote for President.
Support was 80% among Democrats, 57% among Republicans, and 69% among independents.
By age, support was 65% among 18-29 year olds, 66% among 30-45 year olds, 69% among 46-65 year olds, and 72% for those older than 65.
By gender, support was 76% among women and 57% among men.

In the lowest population states, the National Popular Vote bill has passed in nine state legislative chambers, and been enacted by 3 jurisdictions.

Of the 25 smallest states (with a total of 155 electoral votes) 18 received no attention at all from presidential campaigns after the conventions. Of the seven smallest states with any post-convention visits, Only 4 of the smallest states – NH (12 events), NM (8), NV (12), and IA (7) – got the outsized attention of 39 of the 43 total events in the 25 smallest states. In contrast, Ohio (with only 20 electoral votes) was lavishly wooed with 62 of the total 300 post-convention campaign events in the whole country.

toto

June 7, 2012 at 3:36 pm

@Jen:

With the current state winner-take-all system of awarding electoral votes, winning a bare plurality of the popular vote in the 11 most populous states, containing 56% of the population, could win the Presidency with a mere 26% of the nation’s votes!

But the political reality is that the 11 largest states rarely agree on any political question. In terms of recent presidential elections, the 11 largest states include five “red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.

Among the 11 most populous states in 2004, the highest levels of popular support, hardly overwhelming, were found in the following seven non-battleground states:
* Texas (62% Republican),
* New York (59% Democratic),
* Georgia (58% Republican),
* North Carolina (56% Republican),
* Illinois (55% Democratic),
* California (55% Democratic), and
* New Jersey (53% Democratic).

In addition, the margins generated by the nation’s largest states are hardly overwhelming in relation to the 122,000,000 votes cast nationally. Among the 11 most populous states, the highest margins were the following seven non-battleground states:
* Texas — 1,691,267 Republican
* New York — 1,192,436 Democratic
* Georgia — 544,634 Republican
* North Carolina — 426,778 Republican
* Illinois — 513,342 Democratic
* California — 1,023,560 Democratic
* New Jersey — 211,826 Democratic

To put these numbers in perspective, Oklahoma (7 electoral votes) alone generated a margin of 455,000 “wasted” votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

toto

June 7, 2012 at 3:45 pm

@Steven L. Taylor:

Policies important to the citizens of ‘flyover’ states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

Florida (a “swing” state) under Presidents of both parties. President Obama took more interest in the BP oil spill, once it reached Florida’s shores, after it had first reached Louisiana. Some pandering policy examples include ethanol subsidies, Steel Tariffs, and Medicare Part D. Policies not given priority, include those most important to non-battleground states – like comprehensive immigration reform, water issues in the west, and Pacific Rim trade issues.

More examples just reported:
Six heavily traveled Cabinet members, have made more than 85 trips this year to electoral battlegrounds such as Colorado, Florida, Nevada, North Carolina, Ohio and Pennsylvania, according to a POLITICO review of public speeches and news clippings.
http://dyn.politico.com/printstory.cfm?uuid=D956A81F-3573-4902-BD5D-E0CCAB867CF6

“The purple state balance of the Obama administration’s [No Child Left Behind] exemptions appears to be based on a “no swing state left behind” calculation. Four of the six arguably purple states (Florida, Indiana, North Carolina and Ohio) are critical to Mr. Obama’s re-election prospects. The popular vote in those states favored Mr. Obama in 2008 by less than 5%, a characteristic shared with only three other states. . . .Maybe it is just a coincidence that most of the battleground states decided by razor-thin margins in 2008 have been blessed with a NCLB exemption.”
http://online.wsj.com/article/SB10001424052702303640104577440803786176064.html#articleTabs=article

During the course of campaigns, candidates are educated and campaign about the local, regional, and state issues most important to the handful of battleground states they need to win. They take this knowledge and prioritization with them once they are elected. Candidates need to be educated and care about all of our states.

toto

June 7, 2012 at 3:50 pm

@Dodd:

The current system does not provide some kind of check on the “mobs.” 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 now are dedicated party activists of the winning party who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges.

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 bloc. 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 bloc.

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

André Kenji de Sousa

June 7, 2012 at 10:54 pm

The problem aren´t big or small states. I live in medium sized city that is less than 120 miles from São Paulo, the biggest city in Brazil. I live in the biggest state in the country, that accounts for one fifth of the country´s population, and I did not see any presidential campaigning in the city that I lived or in the city that I worked, another medium sized city that´s closer to São Paulo. But I saw lot of campaigning when I traleved to São Paulo.

It´s true that almost all of the people that went to the presidential run off since the reintroduction of general elections in 1989 made their political careers in the State of São Paulo(Dilma Rousseff, one of the only two exceptions, was the successor of a popular president that made his career here). But most candidates concentrate their forces in São Paulo and Rio de Janeiro, doing some campaign event or another in some other major cities. But that what it is.

Considering the differences with the US I bet that Presidential Candidates would do almost all of their campaigning in the suburbs of Chicago, of the Northeastern Corridor and maybe in Los Angeles. But they would not go to the less dense areas of the biggest states. The point here is about density, not about states size. And Chris is right. Here in Brazil all elections are very centralized, from the bureaucratic standpoint.

Trumwill

June 8, 2012 at 7:31 pm

Even as a “states guy” who takes great exception to the asterisk, it’s pretty hard to justify the EC. When the election essentially comes down to seven states, that’s indicative of a problem and a distortion of massive levels. Those of us concerned about the representation of the smaller states still have the senate and our individual state governments with a fair (maybe not enough for my liking, but still a pretty fair) amount of autonomy.

Greg Shannon

June 9, 2012 at 11:17 pm

Why states? Because states do have a different “flavor” even if one does not change party affiliation when moving. Texas may look like the reddest of red, but it’s more an issue that Texans don’t (in general) look to the gvernment for solutions. Call it “rugged individualism” or “self-reliance” (but not in a Thoreau way) that makes the majority in Texas stand by “help yourself” and don’t ask for more. Surely the current EC plays better for the majority of Texans who favor this style and can outvote the liberal urban minority of Austin. People are moving here to find that lifestyle and to move to a national vote would seem to prefer a “state” system that is simply 50 entities that are approximately equal in population and have no connection to geographic psychology. I’m not sure how one would combine Alaska with any part of the lower 48 to achieve population parity AND a connection of mindset. Didn’t Alaskans move their to find gold, adventure, freedom, a place to view Russia? Where then does one move to find the community of like-minded individuals? Something that is happening, especially if you believe “The Big Sort.”

I believe that the EC was put into place not to reward states, but to distance voters from control. That may not be quite the way it works given party loyalty, but we haven’t lost all of the state identity that we started with. Don’t misunderstand, I am not a supporter of the current EC, but I see lots of resistance to a change from more than just the “over-represented” small states.

On another note, New Hampshire may get more attention for elections and not legislation because of its weighty importance in the primary contest and lack of significance the rest of the time, but states in general will only get significant election attention if they are close races and the candidate sees a clear return on investment, a possibilility to win. And density may NOT be the issue (also from Grey Explains) when there are not enough votes in the significant major cities of the U.S to really win in the EC. Density is certainly favorable for ROI in calculating TV spots, etc.