June 16, 2006
The National Popular Vote proposal.
Working around the Electoral College -- which is impervious to constitutional amendment -- through state-by-state legislation. I think it's unconstitutional and doubt that its supporters foresee the strange effects it would have. What would presidential campaigns be like if candidates were basically trying to win through the Electoral College, but also had to worry that some big state that they had no shot at winning might mobilize a high turnout and tip the popular vote?
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Well, as I believe I have asked you before, if you wanted to move the country from the electoral-college to more of a popular vote, what are the steps you would advise?
Legally and politically, what would the best strategy be? What would you do tactically in terms of finding cases to bring before courts, or creating legislation?
I like instant runoff voting, which would seem to be a constitutional way of avoiding much of the unrepresentative problems with the electoral college by more closely aligning voters preferences and their electoral college representatives.
What is your take on the constitutionality of instant runoff voting, and how would you advise its supporters?
I couldn't help noticing that little box next to the story called Fast Facts, presumably provided for those too busy to read the short story.
An unfortunate choice of words, as John Anderson's prior job, as reported, is factually inaccurate.
Supporters of the plan - including Democrat Birch Bayh, a former Senator, and John Anderson, a former GOP Senator and 1980 presidential candidate - argue it would allow long-ignored states to get attention again in presidential campaigns.
Anderson was never a member of the United States Senate.
To dave, because small states like the overwhelming power it gives them and so those states would be extremely unlikely to ratify any amendment taking it away. Since you need, I believe a 2/3rds majority in Congress and then 3/4s of the states to ratify, amending away the electoral college seems to be a complete non-starter.
It seems though that the problems of the electoral college might be mitigated through the adoption of instant runoff voting and similar techniques to the point where the electoral college is reformed or doesn't matter as much.
Jacques: I think we should respect the Constitution, not look for ways to sleaze around it. There are some parts to it that you're going to want respected, so I'd resist discounting the parts you don't like. Amend it or deal with it.
Dave: Do you realize how hard it is to amend the Constitution with respect to anything? If one house of the legislatures of 13 states votes no, it fails. Now, how could you possibly succeed in changing something that would affect the relative power of individual states and would also -- harder to see, but true -- threaten the two party system?
Internet Ronin: The article is also terribly written. It's too short and nevertheless padded. It's written on a low level, yet it's hard to understand. It points to a constitutional problem but doesn't begin to say what it is.
"You could say the French elect their president directly," he says. "I'm thinking that will get people running away from any support: If the French do it, is it really right for the U.S.?"
'nuff said!
Seriously. Once again, we are presented with a solution where a problem doesn't exist - or at least where the solution will not "fix" anything.
As pointed out within the article, the proposal could mean that dyed-in-the-wool Deomocracts may be asked to vote for a Republican. That won't work - either way.
This seems to be another attempt to dumb down our system because some feel the Amercian people are too stupid to understand.
If this agreement between the states is okay, what would stop these states with 270 electors from agreeing to all cast their votes for the candidate who got the most popular votes within just those states? That would effectively disenfranchise the remaining states completely. What argument could you make that one of these agreements would be constitutional, but the other not?
In what manner is instant runoff voting sleazing around the constitution? Please be direct and to the point and try to avoid innuendo in place of an actual argument (a connected series of statements intended to establish a proposition.)
The Electoral College was created by the original Constitution, and altered somewhat by the Twelfth Amendment, which was ratified in 1803. It was changed again, in 1961, to give electoral votes to the District of Columbia. Although other amendments have been regularly offered to modify or eliminate it, none have been successful.
The composition of the Electoral College was intended to mirror that of Congress; each state would have a number of electors that is equal to the number of representatives and senators it has in Congress.
This set up was not very contentious at the time the Constitution was drafted. Most delegates to the convention had figured that the President would be simply selected by Congress as a whole, in the manner that England had used to select a Prime Minister. After some discussion, it was decided to set up a parallel structure in the form of the Electoral College, because of concern that it would be much easier for, say, a foreign power, to fix an election among Congressmen than among bunches of electors whose identities would not be known until shortly before they were to act (see Federalist 68 (Hamilton)). But the important point is that, whether the President be selected by Congress as a whole, or by the Electoral College, each state would have the same number of electors dealing with the question.
We forget too easily that the basic concept was that the states were electing a President, not "the people." That may be a bad idea in today's world, or it may not (states as such do have a useful role, I think). But our Constitution contemplates that the states, in some fashion, are doing the selecting. If we don't like that, we should change it. While it is pretty clear that the states with much to lose will not go along at this time, that's the deal we made long ago. We should treat it with respect.
"We should treat it with respect."
Ahh respect. Given the tone of some, that concept seems to be lost in the dustbin of history. We live in the day when we better get things our way else. If you don't agree with me, you're a(n) (fill in your favorite vulgarity).
Themes of the posts today include "in-your-face-schooling" and "journalistic challenging of the government at every turn". If you don't like the rules - or can't win by them - change them or ignore them.
Sad.
I think that, in terms of structure, the original Constitutional design had it right, a view I hold to so strongly that I would repeal the Seventeenth Amendment, and thus, a fortiori I would oppose the abolition or sidelining of the Electoral College. To the extent that there are defects in the structural aspects of the Constitution - and there are, most signally, the absence of term limits - they are incidental to the fundamental operation of the system, which is wise and beneficial. To disturb that design, I think, is extremely unwise.
I am going to be joining a new group blog in the imminent future, and pursuant to that, I had already been writing a more lengthy post on this subject, and so I think I'm largely going to hold my peace on this for now, so as not to pre-empt that.
Another Democrat-led effort to subvert the Constitution, and march us towards a tyrrany of the majority.
Their motto: We dislike the results of the election, therefore we should dissolve the people and elect another.
With one exception:
John:
"if the state of Texas legislature decided to save itself the cost of presidential elections and just cast its electoral college votes for the Republican candidate (whomever that may be), you would consider that to be constitutional?"
The unamended Article II gives the appointment power exclusively to the legislatures of the states. The legislatures may certainly establish binding elections as the means for choosing electors, but they are not required to do so. Today, all have done so, and so the instant question is whether that power, once conceded, can be revoked. For there to be a Constitutional problem with a legislature choosing to replace popular election (which, one notes, was not always the norm in the early Republic, see McPherson v. Blacker, 146 U.S. 1, 29-34 (1892)) with appointment directly by the legislature, that problem must stem from a provision of a later amendment. You thus have twenty-seven choices; which do you suggest is violated, and why?
I agree with dew.
If you must muck with a system that works, then the simplest alternative that doesn't require a constitutional amendment or massive collaboration is "proportional voting". Specifically, a state legislature puts in place a process to divide its votes proportionately based on the statewide count. so a close state might go 14 for the winner and 12 for the loser.
Alternately, and just a doable from a management of change perspective. allocate most state electoral votes based on the congressional district winner take all counts and the 2 senate based electoral votes based on state wide winner. Therefore my district went for Kerry and Kerry gets 1 electoral vote, and my state went for Bush (2 votes).
Word Verification badpyx, what a Brownie camera takes
Marghlar,
You're sort of provoking me to get into the very debate I want to postpone here. LOL.
Burke wasn't friendly towards change, but he recognized that sometimes, standing athwart it yelling "stop" is counterproductive. He recognized that society is a mobile entity; to be sure (and I'm sure to the frustration of modern liberals), it moves at a glacial pace, but like a glacier, trying to hold it back will not only fail, but may do all the more damage for trying to do so. To that extent, I am not sure Burke would approve of my position.
You say that "[t]here are plenty of modern democracies that are successful with alternative systems . . . [and] most are more successful in embodying the national will into a governing body," but that of course presumes that the "national will should be the arbiter of the Presidency, which is precisely the system that the Framers declined to implement. America is, always has ben, and in my view should remain, a Federal Republic, and so I must reject what I take to be your characterization of Federalism as "represenational defects". I do not see the electoral college or indirect election of Senators as "represenational defects," I see them as fortuitous and highly beneficial buttresses of a federal structure.
I don't go so far as does Jason Mazzone, who has argued that Article V permits only amendments (that is, amendments strictly defined as a change that "remove[s] the faults or errors") rather than wholesale change, but what Mazzone (I think falsely) elevates to a Constitutional command, I think certainly holds true as a normative presumption. Indeed, my view that the basic structural design of the Constitution should not be tampered with in anything other than the most vitally significant and overridingly important circumstances (I am not, therefore, complaining about the Fourteenth Amendment) is part of the calculus that leads me to reject the FMA.
I realize that it would be better to confront this head on, it's just that I've got something going into something much closer to the necessary depths to discuss this properly already in the pipeline.
Having thought about either of my alternatives a bit farther, neither is likely to be implemented in the environment we are in today. why?
They would make the allocation of votes more fair (democratic), but on't be implemented in the state legilatures because it will be against the ruling party's self interest.
Let's take my birth state of California. Written off by the GOP, its huge number of votes is a sure thing for Dems.
Hence Calif, doesn't get much election attention, few campaign promises and no TV money.
However, there are many parts of the state where the GOP can carry Congressional districts and in either of my alternatives would get a major chunk of votes, say 20-25 electoral votes.
BUT, the legislature is controlled by Dem's, who while complaining both about being ignored and not rewarded, recognize that any change to either of my alternatives would be against their long term self interest by giving up 20 electoral votes.
Hence. No change. In fact, I would think that any proportional voting scheme tends to favor the GOP, because it tends to split counts in urban, high vote states, typically democratic already.
Half of Wyomings 3 votes isn't as good as 45% of California's 60.
John,
"It always seems to me that there are many more people who talk about the Constitution than read it."
How interesting that you use those words to conclude a post wherein you claim:
"*IF* a state chooses to hold an election for Prez, there are certain hoops it must jump through at the FEC. But that is entirely different from just deciding not to hold an election. Ditto Reps and Senators. They are elected by popular vote because of state, not federal laws. There is no requirement that either of them be popularly elected either." (Emphasis added)
As I have mentioned above, I certainly agree with you about the Presidential election (although I think your discussion of runoff misses Marghlar's point), but you are assuredly wrong to say that Senators and Representatives are elected because of state laws. "The House of Representatives shall be composed of Members chosen every second Year by the People of the several States," Art. I §2, and for almost a century now, Senators have been elected pursuant to the Seventeenth Amendment, which provides explicitly that "[t]he Senate of the United States shall be composed of two Senators from each State, elected by the people thereof."
You, too, John, might be well-served by less talking and more reading.
The story and the idea of tinkering with the Electoral College is first and foremost a mathematical riddle and really not a legal question.
For that reason, I say the Drill Sgt nailed it. No pun intended.
If you're assuming the small states are the ones with the advantage, you should read John F. Banzhaf III, One Man, 3.312 Votes: A Mathematical Analysis of the Electoral College, 13 Vill. L. Rev. 304, 315-16 (1968). He found that individual voters in the large states have the most influence. It's complicated, but imagine an equally split electorate in California and the one person who breaks the tie. That hypothetical person has a huge effect. So many electoral votes are at stake that the people who determine the outcome are much more important than the people who determine the outcome in a small state. The small state does have the extra votes due to their Senators (the "constant two"). This gives them the psychological solace of feeling important, while the large states actually have disproportionate power to determine the outcome.
Here's my article that revisits the calls for reform that came after the 1968 election. Here's the cite: ELECTORAL COLLEGE REFORM: Deja Vu, 95 Nw. U.L. Rev. 993 (2001). (It's not on line.)
Speaking of Burke, as some commenters above have, Alexander Bickel wrote a book about the Electoral College, in which he quoted Burke. I review Bickel's book in my article. Here's a quote from my article:
"For all Bickel's assertion of interest in the political fate of urban minorities, reading his book, one senses a writer with a deeply conservative instinct. When a society is 'young and pliant, relatively small, containable, and readily understandable,' he writes, 'men can see the scenery shift without losing their sense of direction.' But we - a mature society - would do better to leave in place even institutions that fail to meet the terms of abstract principle (like one-person, one-vote) and that have long disappointed the original intent of the framers; these structures 'challenge our resilience and inventiveness in bending old arrangements to our present purposes with no outward change.' As for the notion that democracy is a 'mystery,' Bickel adapted it from James I's assertion that the king's power is a mystery. To use the old structure, even one little more than an accident, for whatever new needs may arise is far better than to reform the structure. 'Bending old arrangements to present purposes with no outward change' is a wonderful 'secret,' taught by the English, that 'has lent stability to our society and has built strength and confidence in our people.'
"[Footnote] Bickel, as this discussion suggests, was an admirer of Edmund Burke. In his later book The Morality of Consent, Bickel quoted a passage from Burke's Reflections on the Revolution in France (1790): '[It is] with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society.' That passage clearly resembles the argument Bickel himself made about the electoral college. Bickel goes on to defend Burke: 'This is conservatism, no doubt, but what is behind it is not wish, or tired old age, or romantic delusion, or moral obtuseness, or class interest, but good practical wisdom.' Perhaps Bickel meant implicitly to defend himself."
"The way I understand this to read is that IF there is a popular election for member of the legislature, there must be a similar election for reps (and, now, Senators)"
"Everyone is entitled to their own opinion, but not their own facts." The full section does not modify the import of its first section; the House is elected directly by the people. What you are suggesting is that a state could extinguish the ability of the people to select their members of Congress through the narrowing of the franchise (something that is in any event largely foreclosed by the 15th, 19th, 24th and 26th Amendments), something that is truly a radical, disturbing and entirely unprecedented suggestion when you think about what you're actually saying. And for that proposition, you most certainly will need to cite some support.
Lest I be accused of evasion, though, let me refer you to Federalist 52, to III J. Story, Commentaries §§570-610, Wesberry v. Sanders, 376 U.S. 1 (1964) ("construed in its historical context, the command of Art. I, 2, that Representatives be chosen "by the People of the several States" 9 means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's" - which assumes as a baseline that elections happen at all), and of course the fact that what you suggest has never been done in over two centuries of practise. This is a losing battle for you.
Marghlar: I don't have a properly structured argument that it is unconstitutional, and I would look at Compact Clause in much more detail before I would compose my argument, but quite aside from that clause, I think it's unconstitutional.
The Constitution directs the states to set up a method to appoint the electors. The National Popular Vote idea does more than appoint them. It tells them how to vote.
Moreover, it openly attempts to change the system into a popular vote, which isn't what the Constitution provides for.
I note that in U.S. Term Limits the states were not allowed to vary the constitutional system for composing the national government. The states that had adopted term limits argued that they hadn't really changed the qualifications for office (which are fixed in the Constitution); they had merely regulated which names could appear on the ballot. (You could still write in the name of the candidate who'd served beyond the term limit.) The Supreme Court made short work of that argument, and I think it would and should similarly reject this new attempt by the states to work around something in the Constitution that displeases them.
There were 4 dissenters in U.S. Term Limits, but their dissent was based on the fact that the states that adopted term limits were only hurting themselves and only affecting which individuals their own citizens could send to Congress. But in the National Popular Vote proposal, we're all affected. That is the most basic kind of federalism problem, and I think even Justices would are strong enforcers of federalism values would reject this attempt to subvert the Constitution by state statutes.
Marghlar: "Would it be enough just to pick very partisan electors, who will vote for their candidate no matter what?"
That doesn't make sense. Read the article. The state is trying to direct the electors to vote for the other side.
You're right that we've currently lost touch with the idea of the electors thinking about who to vote for, but I don't see how that means the state legislature got the power to direct them to vote for someone other than the candidate they represented on the ballot.
BTW, there's an immense practical problem. Currently, we don't fuss over the returns in any state where it's not enough to change who gets the electoral votes. But if the popular vote mattered, you'd need recounts and litigation in all 50 states. Perhaps in any election the distance between the votes would be close enough to make it worth searching for uncounted votes nationwide. The current system confines the craziness to one or a few states and only in some elections.
Marghlar: A short answer is that the cure may be worse than the disease. You're not giving the current system credit for many positive effects, such as the maintainance of a two party system, the prevention of extremist candidates, the exclusion of a regional strategy, and keeping the President from further aggrandizing his power.
Marghlar: "Indonesia and Brazil both have direct presidential elections, I believe. Both are young systems, but I don't believe either has come crashing down due to inherent problems with a large national election. With modern technology, I think scale is not a big impediment."
What about with American-style litigation potential?
The specific proposal is unconstitutional, not necessarily because it would direct that a state party to the NPV compact bind their electors to not necessarily vote for the candidate that won that state's vote, but because it is a compact. Making a compact with another state, without the consent of Congress, is one of the rights the states gave up as part of Article I, Section 10.
It seems to me that the proposal might violate the Republican Guarantee Clause.
Fern: You need to look more closely at who is benefitted by the two systems. Look especially at New York, California, and Illinois, two states with a lot of people that give a lot of electoral votes to the Democrats.
Frankly, I think both parties have to be afraid of the change. All the strategies would have to change. Different people would be motivated to vote too. All those upstate New Yorkers, etc. Don't presume you know how this would fall out. It would radically change the political parties. That might be fun, but I dread changes like this.
Marghlar & Ann--the Republican Guarantee Clause has nothing to do with the Republican political party. It requires the states to maintain the republican system of government (i.e. a representitive system. If states were to grant their electoral votes according to the national popular vote, that would create a democratic, not republican, form of government. The best argument against the RGC not applying to this case is that it was meant only to control the states' own government and not the states' interaction with the federal system.
Here is the clause directly quoted from the Constitution:
The United States shall guarantee to every State in this Union a Republican Form of Government...
And there is a decent analysis at Wikipedia.
Fern: My discussion of the two parties is about who would vote to amend the Constitution. I think I mistakenly put your name on that comment though, which was addressed to something someone else had said. Anyway, the Guarantee Clause is something I teach as a lawprof, and I think the argument you're stretching for is bad. For one thing, the courts don't enforce the clause. For another, it refers to the composition of the state government, not the federal government. Finally, the federal government is structured according to specific other clauses of the Constitution, which is what a court would rely on if they were to hold these statutes unconstitutional.
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