Author & Speaker

Messing Around With Your Votes, Part I

Two recent developments illustrate how the democracy we enjoy here in the Citadel of Liberty is both flawed and fragile.  First, a movement is gathering force for a back-door change to the largely indefensible practice of electing our presidents through the electoral college.  Second, a contrary movement is sweeping the states to require tough voter identification on election days, with the unmistakable goal of preventing poor people from voting.

Let’s start with the electoral college.  (I’ll cover Voter ID requirements in my next post.)

Most of the delegates to the Constitutional Convention of 1787 viewed the direct election of the president — that is, by popular votes — with a mixture of horror and outrage.  The electoral college was designed to ensure that wise men (the electors) would choose our presidents without the appalling medium of political parties or the votes of the unwashed public.  The states can choose their electors any way they like.  Indeed, as late as the fifth presidential election in 1804, only 11 of the 17 states allowed the voters to choose the electors; in the other six states, the state legislatures chose presidential electors.

The elector system has two major effects.  First, by giving each state an electoral vote for each of its congressmen and senators, it gives extra weight to the votes cast in less populous states, whose votes are magnified by counting senators (which are not based on population) in the allocation of electoral votes.  This means that, predictably, in some elections the candidate with the most electoral votes will not be the one with the most popular votes.  This has happened three times:  in 1876 (Rutherford Hayes), in 1888 (Benjamin Harrison), and 2000 (George W. Bush).  This is indefensible in a supposed democracy.

Second, it tends to distort the outcome of a race by making it seem that the victor won much more thumpingly than he or she actually did.  Thus, in 2008, Barack Obama won 53 percent of the popular vote, but 67 percent of the electoral vote; in 1868, Ulysses Grant also won 53 percent of the popular vote, but swept 73 percent of the electoral vote.  Some applaud this distortion, claiming it helps give a president a mandate for governing.  I cannot applaud it.  I fear that it further inflates the self-regard of presidents and their advisers, whose self-regard ordinarily is already dangerously over-inflated.

How do we get out of this electoral corner into which the Framers very carefully painted us?  The best course would be to amend the Constitution, and many have proposed it.  Indeed, even President Andrew Johnson proposed such an amendment.  Political reality, however, makes such an amendment a tough sell.  At least one political party is likely to view the electoral college as tilted in its favor, and to oppose abandoning it.  A constitutional amendment must be approved by a two-thirds vote of each House of Congress and approval by three-fourths of the state legislatures.  Tough to do.

So into this bleak picture has wandered an official bright idea, one that might also be too clever by half.  The “National Popular Vote Interstate Compact” would work as follows:

  • State legislatures are to adopt legislation providing that the electoral votes of each such state will be cast for the presidential candidate who wins a majority of the popular vote.
  • BUT, this procedure for casting the state’s electoral votes will not be triggered until states who account for a majority of the nation’s popular votes adopt the legislation.
  • At that point, all of the participating states will cast their electoral votes based on the nationwide popular vote count, and will control the outcome.

A pipe dream, you say?  No one will ever vote for that, you object?  I was skeptical of it a couple of years ago, too.  But seven states and the District of Columbia have enacted it so far, and among them they account for 77 of the 538 electoral votes, or 14%.  (New Jersey, Maryland, Vermont, Washington, the District of Columbia, Illinois, Hawaii, and Massachusetts.)

And the California State Assembly just approved it.  If California (55 electoral votes) and New York (29) adopt it, which is expected, they will more than double the total, to 161.  That’s 30 percent of the electoral votes in the country.

Unsurprisingly, the fight over the National Popular Vote sometimes falls out on partisan lines.  All of the approving states so fare are irredeemably “blue” states.  Republicans are more likely to oppose the proposal, since the less-populous states are more likely to be conservative and Republican, and the electoral college exaggerates the influence of those states. 

Yet the National Popular Vote movement has attracted support from some Republicans, including former Senator Fred Thompson of Tennessee and former Illinois Governor Jim Edgar.  In fact, Republican legislators in Minnesota are pushing the legislation forward in that state.  If enough Republican office-holders are willing stand up for democratic principles, the National Popular Vote Interstate Compact might have a fighting chance.

I am not troubled by most of the objections to the National Popular Vote proposal, such as.

  • Using the popular vote will delay the election results.  Shoot, if you waited for the electoral college to vote, which we technically should do, we would have to wait until mid-December.  And that’s about how long we waited under the electoral college system in 2000, what with Bush v. Gore, hanging chads, and so on.  In most elections, with computerized vote-counting, combined with smart-guy projections of the outcome, this won’t be a problem.  When the election is so close that the final outcome is delayed, well, that’s what happened in 2000, when we waited weeks for the outcome of the Florida recount.
  • Using the popular vote will devalue the weight of votes that are cast in less-populous states.  Yup.  That’s the idea.  Those votes are over-valued now, and that is unfair.
  • Because we can have several candidates for president, the winning candidate may well command less than a majority of
    the votes cast for president.  Although that is a visceral objection,
    it would not mark any change in our politics.  We have had many
    presidents who did not command a majority of the popular vote:  Truman
    (1948), Kennedy (1960), Nixon (1968), Clinton (1992 and 1996), and Bush (2000).  Indeed, Abraham Lincoln won only 37 percent of the vote in 1860. 

Although I fervently support the election of the president by popular vote, my one reservation is with this process.  There is, as I noted in the opening sentence, a “backdoor” quality to this process.  This would involve changing the Constitution without actually amending it.  I think it is constitutionally permissible. 

The Constitution imposes no limits on how the states award their electoral votes.  They can do so based on the number of stars in the sky, or the number of letters in the candidate’s last name.  But it seems, well, a bit sneaky, and I would fear that it sets a poor precedent.  What other techniques might be developed for changing the Constitution through Interstate compacts?  I’m not smart enough to dream those all up now, but I bet there are some.

Perhaps the best outcome would be for the National Popular Vote Interstate Compact to come close enough to reality that the political system — Congress and the state legislatures — to address the issue seriously and amend the Constitution to scrape the barnacle of the electoral college off the body politic. 

In speeches, I often note that our Constitution has been imitated and copied by many other countries, but no one has ever copied the electoral college.  It’s just too weird.  Let’s get rid of it, and do that the right way.

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