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More on Electoral College “Reform”

by Gordon S. Joneselectoralcollege

Now that a Virginia state senator has dropped plans to re-work his state’s method of allocating votes in the Electoral College, let’s consider some other proposals for “improving” this venerable, if somewhat creaky, institution.

One, called the National Popular Vote Interstate Compact, comes out of California, home to many nutty ideas, though this particular one has been endorsed by some conservatives as well, including Utah’s always interesting state senator Howard Stephenson. In brief, the Compact would require the Electors of each compacting state to cast their ballot in the Electoral College for the winner of the national popular vote majority.

As of this writing, the Compact has been adopted by California and seven other states (Washington, Illinois, Vermont, Massachusetts, New Jersey, Maryland, Delaware), plus the District of Columbia. The number of EC votes affected amounts to 132 of the 270 that would be needed for an Electoral College majority. Under the terms of the Compact, it does not become effective until states controlling 270 EC votes have joined. Therefore, if states with another 140 EC votes were to join the Compact, it would go into effect, with the result of the practical elimination of the EC, without the trouble of a Constitutional Amendment.

There are a number of practical problems with this scheme, and not a few perverse incentives. On the practical side, there are about 200,000 voting districts in the United States. Recounting any given precinct might change the tally by up to five votes. Normally that makes no practical difference, since a change of five votes in even every precinct in a state is unlikely to change the EC total, but under the Compact, in any election where the margin is under a million votes, there would be a strong incentive to recount every precinct in the country.

On the incentive side, a state could increase its electoral heft by gaming the eligibility rules. The 26th Amendment to the Constitution sets a maximum voting age of 18, but nothing prevents a state from setting a lower limit. The Compact would encourage states to lower the voting age to 16, 14, or even 12, in an effort to increase the relative weight of their electorate with respect to the rest of the nation. Talk about a race to the bottom! (That same incentive would prevail in any direct election of the president scheme.)

Lax state registration standards, including registration of illegal aliens would also become more attractive, as would the usual techniques of voting the graveyard and voting in multiple districts. When registered voters change voting districts, there would be less incentive to purge them from the old district, and more incentive to encourage them to cast multiple ballots.

These practical considerations do not exhaust the problems with the Compact. Consider the actual impact of this scheme as it might work out. Let’s suppose that Mitt Romney had narrowly won the popular vote against Obama last November (though as noted above, we might not know that for weeks or months after the election). Under this “reform,” the 55 electoral votes from California would have been cast for Romney, though Obama won the state by more than three million votes. Granted, under the present EC, Republican efforts in California are desultory at best, and the Compact would have provided more incentive for Romney to campaign there, so let’s assume he might have cut the margin to a million votes. Can you imagine the outcry from Democratic voters in San Francisco whose EC votes went for the Republican? Talk about your Faithless Elector! It’s hard to imagine anything more destabilizing—or de-legitimizing.

In addition to these practical problems, there are still others. To begin with, when would we know that the Compact had “worked”? In addition to the recount problem mentioned above, and the problem of counting absentee and provisional ballots (offering other opportunities to fiddle with national totals), the Electors are chose by the voters in November. In December they convene at the state capital/capitol and cast their ballots, which are sealed and sent to the President of the Senate (the Vice President). In January he opens the ballots (in the presence of the Congress assembled) and they are counted. Only then would we know if the Electors have followed the Compact, as required by state law.

And what if they hadn’t? What is the penalty? Are they going to be taken out and shot for following the Constitution rather than state law? It’s hard to imagine a winning legal strategy a state could pursue. In the meantime, uncertainty reigns.

There are legitimate criticisms to be made of the Electoral College, though there is something to be said for it as well. I will have more to say on the latter point in the future, but for the moment, let me just note that if we don’t like the system the Framers gave us, they provided a mechanism for debating and adopting changes. That method involves a national debate, and the agreement of three-fourths of the states. It does not allow for the imposition of changes by as few as 11 states entering into an Interstate Compact.

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Gordon S. Jones is a senior fellow at Frontiers of Freedom.  Jones is also an adjunct professor at Utah Valley University and Salt Lake Community College. Jones has extensive experience in Congress, in public policy, and elective politics. 

Comments

  1. oldgulph says:

    Most Americans don’t care whether their presidential candidate wins or loses in their state or district . . . 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 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 recent 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%.

    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

  2. oldgulph says:

    The current state-by-state winner-take-all system of awarding electoral votes maximizes the incentive and opportunity for fraud, coercion, intimidation, confusion, 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 vote suppressors or fraudulent voters a better shot at success for a smaller effort?

  3. oldgulph says:

    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 538 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.

  4. oldgulph says:

    There have been 22,991 electoral votes cast since presidential elections became competitive (in 1796), and only 17 have been cast for someone other than the candidate nominated by the elector’s own political party. 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome. Since 1796, the Electoral College has had the form, but not the substance, of the deliberative body envisioned by the Founders. 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.

    The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

  5. oldgulph says:

    Elections carry the risk of conflicts over recounts.

    The current presidential election system makes a repeat of 2000 more likely, not less likely. All you need is a thin and contested margin in a single state with enough electoral votes to make a difference. It’s much less likely that the national vote will be close enough that voting irregularities in a single area will swing enough net votes to make a difference. If we’d had National Popular Vote in 2000, a recount in Florida would not have been an issue.

    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.
    “It’s an arsonist itching to burn down the whole neighborhood by torching a single house.” Hertzberg

    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 57 previous presidential elections if the outcome had been based on the nationwide count.

    The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December. 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. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets.