Wednesday, 31 October 2012 09:55

Popular Election of President: A Constitutional Consideration (Part 3 of 3)

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As we reported in the earlier installments in this series, ABC News is reporting that scholars and pundits are once again pushing for the abolition of the Electoral College. They insist that the electoral college established by our Founders in the Constitution is outmoded and not in keeping with the realities of contemporary presidential politics. One proposal being promoted by those seeking to scrap the Electoral College is the National Popular Vote (NPV) initiative.

Constitutionalists will at once recognize problems in the National Popular Vote (NPV). First, let us consider the historical issues. That is to say, any democratization of the presidential election process is an affront to the express intent of the Founders. The men who constructed our federal government zealously guarded against permitting the harmful influence of democracy to infect the inner workings of our nation. In the case of the Electoral College, the Founders intended the body of electors to be a deliberative convention of wise men brought together for the sole purpose of soberly choosing a president from among the available candidates.

In Federalist, Number 68, Alexander Hamilton explained how the method chosen by him and his colleagues of electing the president was still influenced by the will of the people.

It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any pre-established body, but to men chosen by the people for the special purpose, and at the particular conjuncture.

Regarding the decision to rely on such a body to make such an important decision, Hamilton wrote:

It was equally desirable, that the immediate election should be made by men most capable of analyzing the qualities adapted to the station, and acting under circumstances favourable to deliberation, and to a judicious combination of all the reasons and inducements that were proper to govern their choice. A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment requisite to so complicated an investigation.

It was peculiarly desirable, to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of government. But the precautions which have been so happily concerted in the system under consideration, promise an effectual security against this mischief.

If the NPVIC continues along its current trajectory, these precautions so “happily concerted” in our Constitution will be eliminated, along with the securities provided thereby to the mischief of democracy.

There is another historical issue at hand. The Electoral College is part of an impressive federal arrangement invented by our Founding Fathers. The government established by them in the Constitution created a federal government with few and defined powers, while leaving the bulk of governing power in the hands of the sovereign states and the people. (As described elegantly in the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”)

Furthermore, the states themselves were to be represented in the new federal government through a balanced bicameral congress composed of one house representing the people (the House of Representatives, where members are chosen according to population) and one house representing the states (the Senate, whose membership is divided equally among the states regardless of size). This intricate system was the result of a compromise known to history as the Connecticut Compromise, wherein the feud between populous states and smaller states was settled by giving to each a means of being represented equally in the legislative branch.

The relationship between the balancing of state interests in Congress and the design of the Electoral College was succinctly and superbly described by John Ryder, a member of the Republican National Committee from the state of Tennessee. In an article published in the Washington Times entitled “Popular Presidential Vote Subverts Constitution,” Ryder wrote:

The Electoral College mirrors this arrangement by giving each state electoral votes equal to its membership in the House plus its two Senators. Thus, California gets 55 electoral votes because of its large population, but no state, even Delaware, has fewer than three electoral votes. It reflects the Founders’ compromise between large states and small states and between electing the president by Congress and electing the president directly by the people.

Bypassing the Electoral College through the proposed compact undermines that balance by effectually erasing states’ boundaries along with those states’ sovereignty.

If each state instead possessed a number of electoral votes equal only to the size of its delegation in the House, then California would have 53 electoral votes instead of 55 and Delaware would have one electoral vote instead of three. But the design conceived by the Founders skews representation in the Electoral College to the benefit of the smaller states, which like the larger states, are sovereign in their own spheres.

As the situation stands today, a successful candidate is required to build a coalition of electoral support from across the country. The frequent trips to Iowa, New Hampshire, and other less populous states witness this campaign reality. To be elected, a candidate cannot simply woo voters in urban areas while ignoring those citizens living between the two coastal megalopolises.

Should the National Popular Vote measure become the de facto law of the land, a candidate could simply spend time, money, and attention on the large cities in order to ensure garnering a plurality of votes on election day. As further explained by Ryder: “Under such an arrangement, presidential candidates would have no incentive to campaign anywhere except the major media markets in a few states. The country would, in essence, cede our presidential elections to the largest metropolitan areas, whose concerns are different from those of other areas of the country.”

Then, there is the issue of voter fraud. As Election Day draws nearer, many are coming to realize that voter fraud is more than just a "myth." NPVIC would have the effect of rewarding voter fraud in large cities because every vote cast in such densely populated areas would be exponentially more valuable under the terms of the compact. As the situation stands today, however, fraudulently cast votes have an impact only on the outcome of the election in which it is illegally cast, leaving the elections in sister states wholly untainted. This would not be the case under NPV, as the popular vote would be the sine qua non of who is chosen to occupy the Oval Office.

Regardless of the dire warnings of those seemingly interested in setting aside the Constitution — National Journal, for example, declares: "The Possibility of a Popular, Electoral Vote Split is Very Real" — there are sound reasons to ignore these predictions of calamity and reject the movement toward a popularly elected president.

Our Constitution erects barriers around the states protecting them from usurpations on the part of federal authority and from the tyranny posed to them by coalitions of other states that would rob them of their sovereignty and effectual representation in the federal government. These barriers are under attack from the NPV and its advocates. Our nation is a republic, if we can keep it, and one way to avoid losing it is to reject the National Popular Vote initiatives when they are presented to us and to encourage our state legislators to do likewise.

Related articles: Will a Close Election Put Electoral College on the Chopping Block? (Part 1 of 3)

National Popular Vote: Progress or Problem? (Part 2 of 3)

10 comments

  • Comment Link toto Friday, 02 November 2012 12:10 posted by toto

    Dividing more states’ electoral votes by congressional district winners would magnify the worst features of the Electoral College system.

    If the district approach were used nationally, it would be less fair and less accurately reflect the will of the people than the current system. In 2004, Bush won 50.7% of the popular vote, but 59% of the districts. Although Bush lost the national popular vote in 2000, he won 55% of the country's congressional districts.

    The district approach would not provide incentive for presidential candidates to campaign in a particular state or focus the candidates' attention to issues of concern to the state. With the 48 state-by-state winner-take-all laws (whether applied to either districts or states), candidates have no reason to campaign in districts or states where they are comfortably ahead or hopelessly behind. In North Carolina, for example, there are only 2 districts (the 13th with a 5% spread and the 2nd with an 8% spread) where the presidential race is competitive. In California, the presidential race has been competitive in only 3 of the state's 53 districts. Nationwide, there have been only 55 "battleground" districts that were competitive in presidential elections. With the present deplorable 48 state-level winner-take-all system, 80% of the states (including California and Texas) are ignored in presidential elections; however, 88% of the nation's congressional districts would be ignored if a district-level winner-take-all system were used nationally.

    Awarding electoral votes by congressional district could result in third party candidates winning electoral votes that would deny either major party candidate the necessary majority vote of electors and throw the process into Congress to decide.

    Because there are generally more close votes on district levels than states as whole, district elections increase the opportunity for error. The larger the voting base, the less opportunity there is for an especially close vote.

    Also, a second-place candidate could still win the White House without winning the national popular vote.

    A national popular vote is the way to make every person's vote equal and matter to their candidate because it guarantees that the candidate who gets the most votes in all 50 states and DC becomes President.

  • Comment Link Pocacahontas Friday, 02 November 2012 00:52 posted by Pocacahontas

    It's not as if the National Popular Vote Movement is the only way to change the allocation of electoral votes. Instead of winner-take-all, other states could do what Maine does: Two electoral votes based on the statewide winner of the popular vote, and one electoral vote to the candidate who gets the most votes in each congressional district. Or, two electoral votes to the statewide winner of the popular vote, with the remaining electoral votes allocated in proportion to the popular vote for, say, the top two vote getters. Or. . . .

  • Comment Link toto Thursday, 01 November 2012 17:03 posted by toto

    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, 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.

  • Comment Link toto Thursday, 01 November 2012 17:02 posted by toto

    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.

  • Comment Link toto Thursday, 01 November 2012 16:59 posted by toto

    The precariousness of the current state-by-state winner-take-all system of awarding electoral votes is highlighted by the fact that a shift of a few thousand voters in one or two states would have elected the second-place candidate in 4 of the 13 presidential elections since World War II. Near misses are now frequently common. There have been 6 consecutive non-landslide presidential elections (1988, 1992, 1996, 2000, 2004, and 2008). 537 popular votes won Florida and the White House for Bush in 2000 despite Gore's lead of 537,179 (1,000 times more) popular votes nationwide. A shift of 60,000 voters in Ohio in 2004 would have defeated President Bush despite his nationwide lead of over 3 million votes.

  • Comment Link toto Thursday, 01 November 2012 16:58 posted by toto

    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?

  • Comment Link toto Thursday, 01 November 2012 16:57 posted by toto

    The National Popular Vote bill would end the disproportionate attention and influence of the "mob" in the current handful of closely divided battleground states, such as Florida, while the "mobs" of the vast majority of states are ignored.

    The current system does not provide some kind of check on the "mobs." There have been 22,453 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).

    With National Popular Vote, big cities would not get all of candidates’ attention, much less control the outcome.
    The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities (going as far down as Arlington, TX) is only 15% of the population of the United States.

    Suburbs and exurbs often vote Republican.

    If big cities controlled the outcome of elections, the governors and U.S. Senators would be Democratic in virtually every state with a significant city.

    A nationwide presidential campaign, with every vote equal, would be run the way presidential candidates campaign to win the electoral votes of closely divided battleground states, such as Ohio and Florida, under the state-by-state winner-take-all methods. The big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami do not receive all the attention or control the outcome in Ohio and Florida.

    The itineraries of presidential candidates in battleground states (and their allocation of other campaign resources in battleground states) reflect the political reality that every gubernatorial or senatorial candidate knows. When and where every vote is equal, a campaign must be run everywhere.

  • Comment Link toto Thursday, 01 November 2012 16:53 posted by toto

    With the Electoral College and federalism, the Founding Fathers 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, not an attack upon it.

    The Electoral College is now the set of dedicated party activists who vote as rubberstamps for their party’s presidential candidate. That is not what the Founders intended.

    The current state-by-state winner-take-all method of awarding electoral votes (not mentioned in the U.S. Constitution, but since 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, ensures that the candidates, after the conventions, in 2012 will not reach out to about 80% of the states and their voters. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind.

    80% of the states and people have been just spectators to the presidential elections. That's more than 85 million voters, 200 million Americans.

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

    National Popular Vote would give a voice to the minority party voters in each state. Now their votes are counted only for the candidate they did not vote for. Now they don't matter to their candidate.

    And now votes, beyond the one needed to get the most votes in the state, for winning in a state are wasted and don't matter to candidates. 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).

    With National Popular Vote, elections wouldn't be about winning states. No more distorting and divisive red and blue state maps. Every vote, everywhere would be counted equally for, and directly assist, the candidate for whom it was cast.

    Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states. The political reality would be that when every vote is equal, the campaign must be run in every part of the country.

    When and where voters matter, then so are the issues they care about most.

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

    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).

  • Comment Link toto Thursday, 01 November 2012 16:51 posted by toto

    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 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.
    The National Popular Vote bill has passed 31 state legislative chambers in 21 states. The bill has been enacted by 9 jurisdictions possessing 132 electoral votes - 49% of the 270 necessary to go into effect.

    The National Popular Vote bill would change existing state winner-take-all laws that award all of a state’s electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but since enacted by 48 states), to a system guaranteeing the majority of Electoral College votes for, and the Presidency to, the candidate getting the most popular votes in the entire United States.

    The bill preserves the constitutionally mandated Electoral College and state control of elections. It ensures that every vote is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

    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. The candidate with the most popular votes in all 50 states and DC would get the 270+ electoral votes from the enacting states. That majority of electoral votes guarantees the candidate with the most popular votes in all 50 states and DC wins the presidency.

    National Popular Vote has nothing to do with pure democracy. Pure democracy is a form of government in which people vote on policy initiatives directly. With National Popular Vote, the United States would still be a republic, in which citizens continue to elect the President by a majority of Electoral College votes by states, to represent us and conduct the business of government in the periods between elections.


    NationalPopularVote

  • Comment Link Luther Weeks Wednesday, 31 October 2012 10:53 posted by Luther Weeks

    Cobbling the National Popular Vote on an already flawed system adds to the risks and increases the chances of close elections ending in the Supreme Court or in Congrass, Consider:
    - There is no official national popular vote number available in time for when electors must be designated. Electors are chosen before states are required to send in their Certificates of Attainment
    - There no national audit or recount law. About half of states have audits and about half recount, but recounts are based on close vote counts in each state, there is no law or body to call for a national recount.
    - Given the state by state election system, unlike today, fraud or error in each state can change the national result
    - If the Compact approach is taken the flawed system will remain, with worse effects.There are many reasons candidates and citizens could sue and delay results past required dates based on officials using incorrect, unverified, or different sets of numbers.
    - Finally all votes are not equal, state to state. The franchise is different, the ease of voting is different, and there is voter suppression.
    To do the NPV correctly, as a prerequisite, we need a system where every vote and voter is equal, is counted in a way we can trust, with national audits and recounts etc.

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