How not to abolish the Electoral College

by Jeff Strabone

ECmap2012

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.

Al gore

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