November 05, 2012
How not to abolish the Electoral College
by Jeff Strabone
Another U.S. presidential election is upon us, and once again the electoral college looms large as a threat to the legitimacy of government and people's faith in democracy. On the eve of what may be another split between the electoral college and the nationwide popular vote total, we are no closer to a direct popular election than we were twelve years ago when the winner was decided by the U.S. Supreme Court.
But that may not be such a bad thing for those of us who want to see the electoral college abolished. In fact, the best chance for abolition may lie in sharing the pain by reversing the party polarity of the 2000 split: i.e., for President Obama to win the electoral college and Mitt Romney to win the popular vote. With the likelihood that the electoral college will favor the Democrats for at least the next few elections, our best hope may lie in a split that infuriates Republicans so deeply that they would clamor for reform as Democrats did after 2000.
Perhaps the worst idea out there for ending the reign of the electoral college is an effort called the National Popular Vote Interstate Compact (NPVIC). The NPVIC reminds us of all that's wrong with the clause in the Constitution that leaves the choosing of the electors to the states. The more we mess with the state statutes governing the awarding of electoral votes, the more we may regress to a past when popular votes for U.S. President were not held at all by the states.
In my last column on the electoral college, I tried to overturn, with simple arithmetic, the widely-held myth that small states benefit from the electoral college. One encounters this myth everywhere including, most recently, Andrew Tanenbaum's widely-followed website electoral-vote.com. As I've argued in the past, the more partisan a state's presidential vote happens to be, the more that state will underperform in the electoral college, as opposed to the effect that that state would have on a nationwide popular vote, regardless of the size of the state. Thus, states like Utah, Wyoming, Idaho, and Alaska—usually among the most partisan in recent presidential elections—have a greater impact on the nationwide vote total than they do on the electoral college. Despite the obstacles, the safest, surest way to abolish the electoral college—without causing a host of new problems—is through constitutional amendment, not by the NPVIC, for reasons I will explain.
One thing that many Americans do not realize about presidential elections is that they can be held—and in fact used to be held—without any popular vote whatsoever. That's because the U.S. Constitution explicitly allows each state government to make up any system it likes for awarding its electoral votes. Article II, Section 1, Clause 2 reads:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.The key phrase here is 'in such Manner as the Legislature thereof may direct'. That means, in short, do what you like. Consider some elections from the past and the role that popular votes played in them:
• In 1789, the first presidential election, no state conducted a popular vote. None.
• In 1812, nine of the then eighteen states held popular votes and nine left the decision to the state legislatures. Each state that held a popular vote additionally had its own restrictions on voting according to property and, of course, race and gender.
• Through the 1860 election, South Carolina had never held a popular vote. Every presidential election in South Carolina before the Civil War was determined by its state legislature.
• The last presidential vote held by a state without any popular vote was the 1876 election in Colorado. Having just been admitted to the Union on August 1, 1876, Colorado's legislature decided the state's electoral votes itself on the grounds that they did not have enough time to hold an election. Colorado's three electoral votes went to Rutherford Hayes in an election that was ultimately won by Hayes with 185 electoral votes to Samuel Tilden's 184.
• Two states—Maine and Nebraska—do not use the winner-take-all system used by the other forty-eight states. In a two-way race, a candidate could potentially win a majority of Nebraska's votes yet win only three of its five electoral votes. In a three-way race, a candidate could win a majority of Nebraska's votes and win only two of its electoral votes.
• In 2000, during the confusion between the November election and the Supreme Court's decision in December in Bush v. Gore, Governor Jeb Bush of Florida encouraged the Florida state legislature to bypass both the voters and the courts and to award the state's electoral votes as they, the legislature, saw fit. According to the New York Times for November 30, 2000:
Gov. Jeb Bush of Florida said today that it would be an ''act of courage'' for his state's Legislature to convene a special session to name Florida's 25 electors if Vice President Al Gore persisted in contesting the state's presidential balloting.The Florida legislature would have been entirely within their Constitutional rights to do so, as would any state legislature at any time.
The NPVIC is a campaign to get the various state legislatures to agree, in the event of a nationwide electoral/popular split, to throw out their state vote totals entirely and to instead assign their electors to whichever candidate wins the nationwide popular vote total. As an opponent of the electoral college, I should welcome this scheme, but instead I fear it. Here's how it works.
• Since 2007, eight state governments and the District of Columbia have passed into law new statutes that assign their electoral votes to the nationwide popular vote winner. They are, in order of passage, Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, DC, Vermont, and California. Together, they control 132 electoral votes. (The astute reader will notice that they are all reliably blue states.)
• Only when the NPVIC law has been passed by enough states to control 270 or more electoral votes will it go into effect.
The problems with this scheme are nothing short of terrifying. Let's say, for the sake of argument, that 100% of voters in California vote for Candidate A, who wins the electoral college but loses the national popular vote total to Candidate B. California's electoral votes would then automatically go to Candidate B, thereby nullifying every vote cast in the state of California. Does anyone think that twenty-first-century voters would sit quietly while their entire state's votes were thrown out under an arcane state law that few understand? Furthermore, do we want to encourage the geniuses who sit in our state legislatures to start mucking with their election laws?
Nor would the states in the NPVIC be bound by it when push comes to shove, if it ever does. Just as the NPVIC is enacted by state statute, it can be overturned by state statute at any time. Let's say an electoral/popular split occurs in an election and a state legislature decides to repeal its NPVIC law before the electoral college is seated in order to prevent the nationwide popular vote winner from becoming president. Just as Jeb Bush threatened state legislative action to decide Florida's winner in 2000, there would be nothing to stop a state from re-writing its laws at any point. In the end, NPVIC would probably be a formula for overturning an electoral/popular split won by a Democrat but not for overturning a split won by a Republican.
Worst of all would be if a presidential outcome were determined by NPVIC and then the Supreme Court ruled, as speedily as in Bush v. Gore, that NPVIC was unconstitutional. What's to stop them? Would anyone have faith in our elections, our laws, or the Supreme Court after such an outcome?
NPVIC shows us what's wrong with schemes to circumvent the electoral college without amending the Constitution. What hope is there then for change if reason and math continue to hold no sway? While we wait for the small states to realize that the electoral college is not their numerical friend—or for a popular movement to gather sufficient steam—we may live to see the electoral college reformed for another reason: Republicans may discover that the electoral college has become the friend of the Democrats.
Although 2000 yielded an electoral/popular split that benefitted Republican George W. Bush, that election was too bizarre and complicated to be used as a precedent one way or the other (not to mention the fact that many of us believe Gore actually won Florida). For one thing, there were not one but two third-party candidates who affected state outcomes: Ralph Nader and Patrick Buchanan. Nader got more votes than Bush's margin of victory not just in Florida but also in New Hampshire. Likewise, Buchanan cost Bush New Mexico by getting more votes than Gore's margin of victory over Bush there.
Had John Kerry carried Ohio in 2004, he would have won the electoral college despite losing the nationwide popular vote. Bush's margin of victory in Ohio was 118,601 votes, or 2.11%. As reported at the time, Ohio's voting machines were distributed by the Republican-controlled state government such that heavily Democratic districts faced lines, according to the New York Times for November 7, 2004, up to nine hours long on election day. Were that and other vote-suppressing factors enough to make up Kerry's 118,601 official deficit? Maybe, maybe not. But the point remains: Kerry almost won an electoral/popular split in 2004.
2008 was, by post-Reagan standards, a landslide. This year, however, with Obama way ahead in electoral college projections but just barely ahead of Romney in the national polls, we could see a split that favors Obama. To be blunt, in the current climate it's hard to imagine any of the blue states going red. As long as the blue states stay blue, not to mention the western states trending towards blue and Texas getting progressively browner, a Republican victory in the electoral college may no longer be possible.
And there may lie our best hope for a constitutional amendment to abolish the electoral college. If the electoral/popular split had gone the other way in 2000—i.e., if Gore had won the electoral college and lost the popular vote—does anyone doubt that Republicans would have screamed for reform and not stopped until they got it? And if Obama does it, they will scream even louder.
So then, will I, as a Democrat in New York, be voting for Romney in order to contribute to the electoral/popular split that I'm hoping for? Don't bet on it. People died so that we could all have the right to vote, and I am not about to play games with my vote. But if we do see a split this week, we may get the constitutional amendment that neither reason nor math has been able to achieve. I predict that the day Republicans feel the pain of such a split will be the day the electoral college dies. And Al Gore will have the last laugh.
Click here for part one of this two-part series.
Posted by Jeff Strabone at 12:25 AM | Permalink
Comments
No, you're wrong! A constitutional amendment to abolish the EC wouldn't be good enough! What happens when we have the power to institute quantum-mcguffin voting, and your precious amendment stands in the way? Obviously, the only adequate solution is a time machine to convince the founders to fix the original constitution!
In other words, without the sarcasm: the biggest problem with this article is that it seems to end up on the side of intellectual contrarianism and jaded cynicism over solidarity and activism.
But that's not my only response. There are certainly some good things about this article. It's worthwhile to remember that the EC formula for voting power per person — EC votes, divided by population, divided by percentage vote margin — doesn't in practice favor the smallest states.
But when it comes to critiquing the NPVIC, this article stumbles badly. Yes, in theory, a state could renege on the compact at the last minute. But neither of the specific scary examples given actually work. If California votes 100% Democratic, yet the popular vote is for a Republican... that must mean the Republican candidate ran up California-sized margins in other states, and can therefore easily win the EC even if California reneges on the NPV compact. And then the article suggests that only Republicans would be so ruthless and evil as to renege on the NPV compact... which is great news if the NPV goes into effect through blue states. In general, if you actually build a full scenario where the NPV actually matters, you'll see that it is still the swing states where adherence to the compact actually matters; and these are the very states where both parties will have the power to keep each other honest.
Furthermore... what is the best way to get the constitutional amendment that you favor? Obviously, for the NPVIC to pass, and people to get so used to the new system that they decide to solidify it into the constitution.
And that's without even considering how much easier an interstate compact is than a constitutional amendment. That's possible precisely because of the structure of the EC; and it's useful not just for this popular vote reform, but also for future improvements to voting, such as approval voting.
So: I think you're wrong in most particulars. But more importantly, you're wrong in letting (your vision of) the best reform become the enemy of a existing reform that has considerable momentum.
Posted by: Jameson Quinn | Nov 5, 2012 11:53:21 AM
While I agree with your premise that it isn't necessarily small states that benefit from the Electoral College, I have not seen you provide an argument to convince the actual beneficiaries: small cities and suburban and rural communities in swing states. It is these areas that receive undue attention and have disproportionate power, and these that would suffer the most if the president was popularly elected. In the first presidential election decided by popular vote, where would the candidates spend all of their time and money? The largest cities, of course, because those are the greatest concentrations of votes in the country. Or is that your intention, Jeff? Are your arguments little more than a distraction from your real goal to favor your hometown (and other superblue cities like it) at the expense of lesser municipal creations? I suspect I may be onto something. If so, shame on your stereotypical city-liberal elitism. Shame indeed.
Posted by: Quinn Jameson | Nov 5, 2012 3:19:47 PM
"Quinn Jameson" isn't me. It's also an incoherent troll.
Posted by: Jameson Quinn | Nov 5, 2012 6:01:24 PM
Nice to see your follow-up, and just in time! :) My thoughts are the same as Jameson though, I don't think you've made a good case against the NPVIC.
Posted by: billy | Nov 5, 2012 7:06:44 PM
There were a million things I wanted to include in the follow-up to my first piece on the electoral college, but I eventually realized that it was becoming impossible to finish at article length. I will give serious thought to writing a book on the subject next year.
I do understand the appeal of the NPVIC, but I also think that its supporters don't realize its attendant dangers. Legislators in Maryland and New Jersey have already tried to repeal it. Furthermore, whether one thinks it's constitutional or not, we would surely wind up at the same place as in 2000: a decision by the Supreme Court as to whether they like the outcome or not. And if the wrong majority is on the Court at the time, NPVIC will be ruled unconstitutional because that's how the Court works these days.
I also think the campaign for NPVIC opens a Pandora's box of tinkering with state laws governing the electors. Now that repealing the Seventeenth Amendment's guarantee of direct election of U.S. Senators has become a talking point among far-right members of Congress, how soon before restoring the state legislatures' original role in choosing electors becomes 'normal' in political discourse?
Thinking about this narrowly—perhaps too narrowly for some—I find that NPVIC is no substitute for a bona fide constitutional amendment. An amendment cannot be overturned by any court or legislature. How far are we from ratifying such an amendment? On November 5, 2012, very far indeed. If on November 6, 2012 the election produces an electoral/popular split, we may suddenly be a whole lot closer. When Texas becomes Democratic in less than a decade's time due to its growing Latino population, it will no longer be possible for Republicans to win the electoral college. Demographics aside, the Republican Party in a decade's time may look a lot different than it does today.
In short, a lot of things could happen to make a constitutional amendment not as impossible as it seems today. Because I think NPVIC comes with a lot of attendant risks, I would rather push for the real thing in our lifetime: a simple direct-election constitutional amendment. And if we don't get one, it will be the Republicans who'll be the ones cutting off their nose to spite their face because the electoral college—in two of the last three elections and more to come—favors the Democrats.
Posted by: Jeff Strabone | Nov 5, 2012 7:24:02 PM
"Does anyone think that twenty-first-century voters would sit quietly while their entire state's votes were thrown out under an arcane state law that few understand?"
Their votes aren't "thrown out"...California's voters would have used their power to negotiate toward something that is in the state's voters' interests: to have the election decided by popular vote. And by the way, if it did happen that the state's votes went to the Republican (since the Republican candidate won the popular vote, and probably still would have won without the compact in effect), that isn't "throwing away" the votes...remember, there actually are republican voters in California. In any case, your whole logic here is screwy. The point is to have the election decided by popular vote, and this does the trick. Yes there are cases where it will result in things that will be undesirable to one side or the other. In your case, though, you didn't really describe an undesirable outcome, just an supposedly undesirable thing that happens in between the voting and the outcome. So what if a state's electoral votes go somewhere "worse," if the end result is that the election is decided by popular vote.
As Jameson says, there is much that is interesting in this article, but the main gist of it is very wrongminded. I'll just repeat Jameson's words because he said it perfectly: "you're wrong in letting your vision of the best reform become the enemy of a existing reform that has considerable momentum."
Posted by: rob brown | Nov 5, 2012 8:02:14 PM
While I am open to the criticism that the perfect is the enemy of the good, there is a point I was making that is getting lost in the discussion and that point is legitimacy. Government loses legitimacy in the people's eyes when elections are decided in funky ways. The electoral college is definitely funky, but so is NPVIC.
While I'm all in favor of the popular winner becoming president, NPVIC will raise an unexorcisable spectre of illegitimacy. And at best we would have a fifty-fifty chance that the Supreme Court would allow it to stand. The crisis of legitimacy that would follow such a decision by the Court would be more catastrophic than that of Bush v. Gore.
Posted by: Jeff Strabone | Nov 5, 2012 8:17:16 PM
Ok, well I find it highly unlikely that this will cause any sort of crisis. If it appears likely to kick in (if enough states enter the compact)....don't you think the question of its legitimacy will be resolved before the election actually takes place? I think if this does reach the 270, it will probably be fairly quickly followed by a constitutional amendment...an amendment that would otherwise never happen because those people/parties/states who gain an unfair advantage from the electoral college will not let it happen.
Posted by: rob brown | Nov 5, 2012 8:50:37 PM
I can't say that I see how NPVIC reaching critical mass, i.e. 270 electoral votes, would lead to amendment per se. I can see how it would lead to litigation. The number of states needed to ratify an amendment is thirty-eight. It takes considerably fewer states to reach 270. Those thirty-eight states will ultimately have to be swayed, but I don't see that NPVIC would play an automatic role in that.
Posted by: Jeff Strabone | Nov 5, 2012 10:51:28 PM
What I meant by "fairly quickly" was within the next decade or two. That's not overnight, but it's a lot quicker than an amendment would happen otherwise.
The reason I think that would happen is that the NPVIC, if it is actually in action (i.e. > 270), takes away the incentive of those who are advantaged by the electoral college, to argue argue against an amendment. Once they've lost their advantage, they have no reason to fight against what is obviously a more democratic system than what we have today (and a more straightforward one than staying with the NPVIC).
Like you say, there is a lower barrier to the NPVIC than to an amendment. That's why we need it as a stepping stone.
Posted by: rob brown | Nov 6, 2012 1:47:24 AM
To abolish the Electoral College would need a constitutional amendment, and could be stopped by states with as little as 3% of the U.S. population.
The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law. The U.S. Constitution gives "exclusive" and "plenary" control to the states over the appointment of presidential electors.
Historically, virtually all of the previous major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation's first election in 1789. However, now, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.
In 1789, only 3 states used the winner-take-all method (awarding all of a state's electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all method is now currently used by 48 of the 50 states.
In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the 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, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state.
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.
Posted by: toto | Nov 6, 2012 12:23:46 PM
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.
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.
In state polls of voters each with a second question that specifically emphasized that their state's electoral votes would be awarded to the winner of the national popular vote in all 50 states, not necessarily their state's winner, there was only a 4-8% decrease of support.
Question 1: "How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current Electoral College system?"
Question 2: "Do you think it more important that a state's electoral votes be cast for the presidential candidate who receives the most popular votes in that state, or is it more important to guarantee that the candidate who receives the most popular votes in all 50 states becomes president?"
Support for a National Popular Vote
South Dakota -- 75% for Question 1, 67% for Question 2.
see http://tinyurl.com/3jdkx7x
Connecticut -- 74% for Question 1, 68% for Question 2.
see http://tinyurl.com/3nv8djt
Utah -- 70% for Question 1, 66% for Question 2.
see http://tinyurl.com/3vrfxyh
Posted by: toto | Nov 6, 2012 12:24:59 PM
The National Popular Vote bill says: "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 method that is currently the law in 48 states.
There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.
In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:
“When enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”
In 1999, the Commonwealth Court of Pennsylvania stated in Aveline v. Pennsylvania Board of Probation and Parole:
“A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”
In 1952, the U.S. Supreme Court very succinctly addressed the issue in Petty v. Tennessee-Missouri Bridge Commission:
“A compact is, after all, a contract.”
The important point is that an interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.
Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.
Posted by: toto | Nov 6, 2012 12:26:16 PM
In six years since being introduced, the National Popular Vote bill has passed 31 state legislative chambers, in 21 small, medium-small, medium, and large states, including one house in AR (6), CT (7), DE (3), DC (3), ME (4), MI (16), NV (6), NM (5), NY (29), NC (15), and OR (7), and both houses in CA (55), CO (9), HI (4), IL (20), NJ (14), MD (10), MA(11), RI (4), VT (3), and WA (12). The bill has been enacted by 9 jurisdictions possessing 132 electoral votes -- 49% of the 270 necessary to bring the law into effect.
Posted by: toto | Nov 6, 2012 12:33:53 PM
Thanks, toto. So, Jeff, ready to change your mind on this?
Posted by: Jameson Quinn | Nov 6, 2012 4:45:29 PM
Very well said Toto. Jeff, we hope you reconsider your views on this. Toto really shot down most all your arguments.
Posted by: rob brown | Nov 6, 2012 5:48:50 PM
Toto is wrong on many of the facts.
Part 1
Toto says:
'Historically, virtually all of the previous major changes in the method of electing the President have come about by state legislative action.'
This is dead wrong. The major changes wrought by the states are holding a popular election–a privilege that any state can take back at any time (and that Florida almost did in 2000, as shown above)–and lowering the property bar so that white men generally can vote.
The only way to prevent a state from getting rid of its popular vote at will is by constitutional amendment.
To say that constitutional amendments have not wrought the major changes in our election law, as Toto says, is loudly wrong.
Consider the following amendments:
• The Twelfth Amendment calls for separate elections for president and vice-president.
• The Fourteenth Amendment reduces the representation in Congress of any state that abridges the rights of males over the age of twenty-one to vote. Essentially, it bars voting prohibitions against all men and explicitly includes elections for presidential electors.
• The Fifteenth Amendment provides that the right to vote shall not be abridged due to race, color, or previous servitude.
(• The Seventeenth Amendment, while having no bearing on presidential elections, provides for direct popular election of U.S. Senators.)
• The Nineteenth Amendment extends to women the right to vote.
• The Twentieth Amendment controls when the president's term begins and ends.
• The Twenty-second Amendment limits the president to two terms or, in the case of a vice-president who replaces a sitting president, ten years.
• The Twenty-third Amendment includes the District of Columbia in the electoral college.
• The Twenty-fourth Amendment prohibits poll taxes.
(• The Twenty-fifth Amendment, while not about elections, per se, further defines presidential succession.)
• The Twenty-sixth Amendment lowered the voting age to eighteen.
I do not know how Toto can say, 'The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law.' It is a statement so wrong, as the above evidence shows, that I am baffled that anyone would utter it.
Posted by: Jeff Strabone | Nov 6, 2012 7:28:20 PM
Toto is wrong on many of the facts.
Part 2
Although NPVIC stands for National Popular Vote Interstate Compact, not everything that calls itself a compact is necessarily a compact as defined by Article I, Section 10 of the Constitution, which reads, in relevant part:
'No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.'
(Emphasis added.)
Right there, the Constitution requires an interstate compact to have the approval of Congress. Without that, any such compact may be ruled unconstitutional. (And if you think that Virginia v. Tennessee, 148 U.S. 503 (1893) means NPVIC could not be challenged on these grounds, that is, shall we say, wishful thinking.)
This is also why Toto is wrong when he says:
'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[.]'
Constitutionally, NPVIC would be controlled by the Compact Clause, not the Contract (Impairment) Clause.
Toto points out that:
'The National Popular Vote bill says: "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."'
And so it may, but by what authority would this be enforced? NPVIC—perhaps especially sans Congressional approval—would only be a state law in each state that passed it. And, of course, another state law can repeal it at any time. A statute that says This statute cannot be repealed is a lie. Any statute can be repealed at any time by the body that enacted it.
This is why I find irrelevant Toto's point that '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 method that is currently the law in 48 states.' Toto is correct, but I am more concerned that a legislature could repeal its own NPVIC statute at will for reasons argued above.
Toto is right, as far as I know, but off the point when he says:
'There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.'
I'm assuming that what Toto has in mind here are Congressionally-approved interstate compacts like the Connecticut River Valley Flood Control Commission, whose member states are Connecticut, Massachusetts, New Hampshire, and Vermont.
In order for NPVIC to become a true interstate compact, it would need Congressional approval, as I showed above. Would Congress ever bestow such power to a bunch of state governments so that they can circumvent the electoral college? I do not believe that this would ever happen. You can believe otherwise if you're so inclined.
To be clear, my point about NPVIC, which was not the only point of my article, opens up a new set of problems without reliably solving the old ones. NPVIC is constitutionally shaky at best. Even if enough states joined it, I would find it too constitutionally and politically shaky to rely on when the electoral shit hits the fan again, as it surely will someday, perhaps today.
Posted by: Jeff Strabone | Nov 6, 2012 7:55:29 PM
Jeff,
I like your arguments and share your desire to see the end of the electoral college. I'm afraid, though, that we are all being represented by a most eloquent spokesman for our cause, Donald Trump, who just tweeted: "The electoral college is a disaster for democracy."
Posted by: sw | Nov 7, 2012 12:47:52 AM
It's already starting: this election is a GOP freakout over the electoral college, and it will only get worse for them.
Posted by: Jeff Strabone | Nov 7, 2012 12:53:09 AM
** 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.
** The National Popular Vote compact actually establishes the people’s right to vote for President in compacting states. Article II of the compact states.
“Each member state shall conduct a statewide popular election for President and Vice President of the United States.”
** 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.
Posted by: toto | Nov 7, 2012 3:09:30 PM
Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.
The U.S. Constitution provides:
"No state shall, without the consent of Congress,… enter into any agreement or compact with another state…."
Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can "not be read literally." In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:
"Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.
"The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta."
Specifically, the Court's 1893 ruling in Virginia v. Tennessee stated:
"Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States."
The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…."
In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
"The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States"
The National Popular Vote compact would not "encroach upon or interfere with the just supremacy of the United States" because there is simply no federal power -- much less federal supremacy -- in the area of awarding of electoral votes in the first place.
In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states' action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that:
"the test is whether the Compact enhances state power quaod [with regard to] the National Government."
The Court also noted that the compact did not
"authorize the member states to exercise any powers they could not exercise in its absence."
Posted by: toto | Nov 7, 2012 3:10:50 PM
The presidential election system that we have today was not designed, anticipated, or favored by the Founding Fathers but, instead, is the product of decades of evolutionary change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws, not mentioned, much less endorsed, in the Constitution.
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. 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.
Posted by: toto | Nov 7, 2012 3:15:33 PM
I will review Virginia v. Tennessee (1893) and get back to you. In the meanwhile, if you think a Supreme Court that would want, at the critical moment, to overturn NPVIC as much as the otherwise states-rights Rehnquist Court wanted to anoint George W. Bush president would be blocked by case law, then you do not understand the ideological commitment to so-called 'originalism' of the right-wingers on the Court.
All I'm trying to say here is that NPVIC would not be secure against a constitutional challenge with an election outcome on the line.
Posted by: Jeff Strabone | Nov 7, 2012 8:58:01 PM
Add your signature to abolish the electoral college! http://wh.gov/9VOm
Posted by: Adam | Nov 11, 2012 1:16:56 PM
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