Wednesday, April 16, 2014

Electoral College Myth: A constitutional amendment is not required to switch to a direct popular vote | Tara Ross

Electoral College Myth: A constitutional amendment is not required to switch to a direct popular vote | Tara Ross

Electoral College Myth: A constitutional amendment is not required to switch to a direct popular vote

Myth number 6 in my series on Electoral College myths. Please don’t miss the earlier myths, posted here, here, here, here, and here.  Do you have a myth that you’d like addressed? Please post it in the comment field, and I will do my best!
Myth: The anti-Electoral College NPV effort is not an “end-run” around the constitutional amendment process because the winner-take-all method of distributing electoral votes is not in the Constitution.
Fact: National Popular Vote is a group that asks states to change the manner in which they allocate their electoral votes. Today, most states rely upon a winner-take-all method of elector allocation within state borders. The winner of a state’s votes gets that state’s electors. NPV asks states to change this, instead awarding electors to the winner of the national popular vote. States sign a compact to this effect. The compact goes into effect when states with a majority of electoral votes (270) have agreed to its terms. So far, eight states plus D.C. (132 electoral votes) have approved NPV.  In other words, NPV is nearly halfway to its goal with only 8 states (plus D.C.) on board.  By contrast, a formal constitutional amendment would require the approval of 38 states.
UPDATE (April 2014): The number of states currently stands at 9, plus D.C.  (136 electoral votes).  The New York legislature, with 29 more electoral votes recently approved the legislation.  The Governor’s signature will bring NPV up to a total of 165 electoral votes on board with the plan.
If NPV’s proposal goes into effect, the Electoral College will be effectively eliminated, replaced with a national direct election system. Presidential candidates will no longer strive for a majority of states’ electoral votes, as they do today. A plurality of individuals’ votes will be the goal.
NPV blithely asserts that its compact is constitutional, even as that very same compact turns the American presidential election system on its head. Voters should take NPV’s arguments with a grain of salt.  Or perhaps a whole box of salt.
The Constitution was the product of much give and take. It never would have been ratified, at least by the small states, but for the compromises that were made at the Constitutional Convention. Indeed, the small states explicitly objected to a national direct election for President; they feared that voters in the large states would trump them each and every presidential election year. Moreover, the delegates deliberately created a difficult constitutional amendment process (requiring approval from 2/3 of Congress and 3/4 of the states). This tough process exists, at least in part, to protect the small states from tyranny by the large states. Finally, the Constitution values federalism and the ability of states to act on their own behalves. NPV attempts to undercut all of these protections, yet claims to be in line with the Founders’ intent. Such a claim is disingenuous, at best.
NPV wants Americans to believe that its compact is simply a unique way of using constitutional provisions, but the compact is far more than that. It will certainly be contested in court. For more detail on the legal arguments that will be made against NPV, please also see my 2010 white paper here.

3 comments:

  1. With the Electoral College and federalism, the Founders meant to empower the states to pursue their own interests within the confines of the Constitution. The National Popular Vote is an exercise of that power.

    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.

    The current state winner-take-all method of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), under which all of a state's electoral votes are awarded to the candidate who gets the most votes in each separate state, ensured that the candidates, after the conventions, in 2012 did not reach out to about 80% of the states and their voters. 10 of the original 13 states were ignored. Candidates had no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they were safely ahead or hopelessly behind.

    80% of the states and people were just spectators to the presidential election. That's more than 200 million Americans.

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

    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.

    Under National Popular Vote, every voter, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count.

    When states with a combined total of at least 270 electoral votes enact the bill, the candidate with the most popular votes in all 50 states and DC would get the needed majority of 270+ electoral votes from the enacting states. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes.

    States have the responsibility and power to make all of their voters relevant in every presidential election and beyond.

    Unable to agree on any particular method, the Founding Fathers left the choice of method for selecting presidential electors exclusively to the states by adopting the language contained 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 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 have, changed their method of awarding electoral votes over the years.

    The normal process of effecting change in the method of electing the President is 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.

    Federalism concerns the allocation of power between state governments and the national government. The National Popular Vote bill concerns how votes are tallied, not how much power state governments possess relative to the national government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, or national lines (as with the National Popular Vote).

    ReplyDelete
  2. With the current state-by-state winner-take-all system of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a bare plurality of popular votes in only the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with a mere 23% 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 have included 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.

    In 2004, among the 11 most populous states, in the seven non-battleground states, % of winning party, and margin of “wasted” popular votes, from among the total 122 Million votes cast nationally:
    * Texas (62% Republican), 1,691,267
    * New York (59% Democratic), 1,192,436
    * Georgia (58% Republican), 544,634
    * North Carolina (56% Republican), 426,778
    * California (55% Democratic), 1,023,560
    * Illinois (55% Democratic), 513,342
    * New Jersey (53% Democratic), 211,826

    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).

    ReplyDelete
  3. Anyone concerned about the relative power of big states and small states should realize that the current system shifts power from voters in the small and medium-small states to voters in the current handful of big states.

    With National Popular Vote, when every popular vote counts equally, successful candidates will find a middle ground of policies appealing to the wide mainstream of America. Instead of playing mostly to local concerns in Ohio and Florida, candidates finally would have to form broader platforms for broad national support. Elections wouldn't be about winning a handful of battleground states.

    Now political clout comes from being among the handful of battleground states. 80% of states and voters are ignored by presidential campaigns.

    State winner-take-all laws negate any simplistic mathematical equations about the relative power of states based on their number of residents per electoral vote. Small state math means absolutely nothing to presidential campaigns and to presidents once in office.

    In the 25 smallest states in 2008, the Democratic and Republican popular vote was almost tied (9.9 million versus 9.8 million), as was the electoral vote (57 versus 58).

    In 2012, 24 of the nation's 27 smallest states received no attention at all from presidential campaigns after the conventions.- including not a single dollar in presidential campaign ad money after Mitt Romney became the presumptive Republican nominee on April 11. They were ignored despite their supposed numerical advantage in the Electoral College. In fact, the 8.6 million eligible voters in Ohio received more campaign ads and campaign visits from the major party campaigns than the 42 million eligible voters in those 27 smallest states combined.

    Now with state-by-state winner-take-all laws (not mentioned in the U.S. Constitution, but later 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.

    Kerry won more electoral votes than Bush (21 versus 19) in the 12 least-populous non-battleground states, despite the fact that Bush won 650,421 popular votes compared to Kerry’s 444,115 votes. The reason is that the red states are redder than the blue states are blue. If the boundaries of the 13 least-populous states had been drawn recently, there would be accusations that they were a Democratic gerrymander.

    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%, NH--69%, NE - 72%, NM - 76%, RI - 74%, SD- 71%, UT- 70%, VT - 75%, WV- 81%, and WY- 69%.

    Among the 13 lowest population states, the National Popular Vote bill has passed in nine state legislative chambers, and been enacted by 4 jurisdictions.

    ReplyDelete