Monday, January 4, 2010

Editorial: Resolving The Electoral College Dilemma

Tom122007 With Congress in recess, Obama on vacation, and the Crotch Bomber still dominating the news cycle, I think this is a good to post a major article.  I’ve been planning an editorial on the Electoral College for some time now and, since Lisa G. brought it up in a comment a couple days ago, I decided to do it now.  In the earliest days of our country, Presidents and Vice Presidents were elected by state legislatures, not by voters.  Because of the great distances that had to be traversed on horseback and the time it took to do so, the founding fathers provided for the electoral college, a meeting of representatives from each state convened for the sole purpose of choosing the President and Vice president of the United States in Article V of the US Constitution.  As time passed, voting for Presidents and Vice Presidents replaced choice by state legislatures, and travel time is no longer an issue, but the electoral college remains.
Here is the 2008 electoral college map:
ElectoralCollege2008_svg
And here’s how electors are apportioned among the states.
…The Constitution gives each state a number of electors equal to the combined total of its Senate membership (two for each state) and House of Representatives delegation (currently ranging from one to 52, depending on population). The 23rd Amendment provides an additional three electors to the District of Columbia. The number of electoral votes per state thus currently ranges from three (for seven states and D.C.) to 54 for California, the most populous state.
The total number of electors each state gets are adjusted following each decennial census in a process called reapportionment, which reallocates the number of Members of the House of Representatives to reflect changing rates of population growth (or decline) among the states. Thus, a state may gain or lose electors following reapportionment, but it always retains its two "senatorial" electors, and at least one more reflecting its House delegation…
Inserted from <history.com>
Here is a table with the same data in textual form:
Jurisdiction
Rep
Sen
Total
Alabama
7
2
9
Alaska
1
2
3
Arizona
8
2
10
Arkansas
4
2
6
California
53
2
55
Colorado
7
2
9
Connecticut
5
2
7
Delaware
1
2
3
DC
0
0
3
Florida
25
2
27
Georgia
13
2
15
Hawaii
2
2
4
Idaho
2
2
4
Illinois
19
2
21
Indiana
9
2
11
Iowa
5
2
7
Kansas
4
2
6
Kentucky
6
2
8
Louisiana
7
2
9
Maine
2
2
4
Maryland
8
2
10
Massachusetts
10
2
12
Michigan
15
2
17
Minnesota
8
2
10
Mississippi
4
2
6
Missouri
9
2
11
Montana
1
2
3
Nebraska
3
2
5
Nevada
3
2
5
New Hampshire
2
2
4
New Jersey
13
2
15
New Mexico
3
2
5
New York
29
2
31
North Carolina
13
2
15
North Dakota
1
2
3
Ohio
18
2
20
Oklahoma
5
2
7
Oregon
5
2
7
Pennsylvania
19
2
21
Rhode Island
2
2
4
South Carolina
6
2
8
South Dakota
1
2
3
Tennessee
9
2
11
Texas
32
2
34
Utah
3
2
5
Vermont
1
2
3
Virginia
11
2
13
Washington
9
2
11
West Virginia
3
2
5
Wisconsin
8
2
10
Wyoming
1
2
3
Total
435
100
538
The electoral college system causes several problems.
The first, and most obvious, is that twice the electoral college has elected a President who lost the popular vote, and the last time, it saddled the nation with the worst President in US history.  Imagine where we might be had Gore been awarded the Presidency he won by popular vote in 2000.  Hopefully he would have been conscientious enough to heed the warnings Bush ignored and 9/11, the war in Iraq, torture, etc., could have been avoided.
The second is that all states except two (Maine and Nebraska) apportion their electors on a winner take all basis.  This effectively disenfranchises every voter who does not vote for the winner of that state.  Candidates would receive 15 electoral votes for winning Georgia by one vote and 15 electoral votes for winning New Jersey by 500,000 votes.  This also inclines candidates to ignore states that are solidly for or against them and concentrate their efforts in closely contested ‘swing’ states.  This deprives the voters in non-swing states of exposure to the candidates and businesses in those states the economic boon that campaign visits bring.
The third is completely anti-democratic.  The electoral college skews power to smaller states.  Our Declaration of Independence declares all created equal, but under the electoral college, some voters are clearly more equal than others, because in addition to an elector for each Representative in the House, which is based on population, states also get an extra two electors for their Senators, regardless of population.  On the surface, that appears minimal, but consider these two examples.
  • Wyoming has 3 electors for their population of 532,668.  That’s one elector for every 177,556 people.
  • California has 55 electors for their population of 34,756,666.  That’s one elector for every 631,939 people.
That gives a Wyoming voter 3.6 times the electoral power of a California voter.  While this is the most extreme comparison, the fact remains that the less populous a state is, the more electoral clout each voter has.  In my opinion, that is an injustice.
So I hope we can agree that the system needs to be changed.  The obvious way is to eliminate the electoral college.  That requires a Constitutional Amendment, and the procedures for doing so are as follows:
…There are essentially two ways spelled out in the Constitution for how to propose an amendment. One has never been used.
The first method is for a bill to pass both houses of the legislature, by a two-thirds majority in each. Once the bill has passed both houses, it goes on to the states. This is the route taken by all current amendments. Because of some long outstanding amendments, such as the 27th, Congress will normally put a time limit (typically seven years) for the bill to be approved as an amendment (for example, see the 21st and 22nd).
The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about.
Regardless of which of the two proposal routes is taken, the amendment must be ratified, or approved, by three-fourths of states. There are two ways to do this, too. The text of the amendment may specify whether the bill must be passed by the state legislatures or by a state convention. See the Ratification Convention Page for a discussion of the make up of a convention. Amendments are sent to the legislatures of the states by default. Only one amendment, the 21st, specified a convention. In any case, passage by the legislature or convention is by simple majority.
The Constitution, then, spells out four paths for an amendment:
  • Proposal by convention of states, ratification by state conventions (never used)
  • Proposal by convention of states, ratification by state legislatures (never used)
  • Proposal by Congress, ratification by state conventions (used once)
  • Proposal by Congress, ratification by state legislatures (used all other times)
It is interesting to note that at no point does the President have a role in the formal amendment process (though he would be free to make his opinion known). He cannot veto an amendment proposal, nor a ratification…
Inserted from <usconstitution.net>
Regardless of which method is used, the Amendment could not take effect unless three fourths of the states ratify it.  Since more than half the states have an electoral advantage under the present system, we may rest assured that the Amendment could never get enough states on board to be ratified.
However, all is not lost.  There is a way to leave the electoral college in place and still ensure that the winners of the national popular vote will be elected President and Vice President.  How states apportion their electors is up to the individual states.  It requires 270 electoral votes to elect.  If a group of states with combined electoral votes totaling 270 or more were to pass identical state laws requiring that they award all their electoral votes to the winner of the national popular vote, regardless of how their own state votes, it would guarantee the election of the national popular vote winners.  This could be done with as few as eleven states.   California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, New Jersey, Georgia and North Carolina combined have 271 electoral votes, but any combination with that total could make it happen.
There is already an organization working to implement this plan, The National Popular Vote Bill.  Here is their short description of their bill.
Under the U.S. Constitution, the states have exclusive and plenary (complete) power to allocate their electoral votes, and may change their state laws concerning the awarding of their electoral votes at any time. Under the National Popular Vote bill, all of the state's electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538).
It can work, but if we wait until election time to publicize it and lobby our state legislators, it will be too late.  The electoral college is an injustice we can fix now, if we’re willing to make the effort.  I encourage you to link this, forward this, and otherwise pass this on.

41 comments:

Infidel753 said...

Another injustice associated with the Electoral College is that it de-values votes in states with a higher turnout. For example, Oregon and Oklahoma have the same number of electoral votes and roughly similar population size. However, if twice as many people actually vote in Oregon as in Oklahoma, each vote will count for less because Oregon still gets only the same number of electoral votes, even though more actual votes were cast.

Jack Jodell said...

I congratulate you on a well-reasoned and finely detailed, well-laid-out argument for change, TomCat! With analysis and detail like that, you should be practicing law!

Clearly, our Electoral College is flawed and favors the less populated states. That is not good. But I would suggest that the way we even conduct our elections is in need of a major overhaul. Consider these factors:
1). Voting is held the first Tuesday in November, at a time when snow and cold prevent some voters (the elderly or those without reliable transportation) in some areas of the country from voting. I would suggest changing the date to one month earlier, in October.
2). The current method of publicizing candidates, using slickly produced, Hollywood-image-type videos and TV ads, has got to GO. For one thing, it has made running for office hugely expensive. This allows special moneyed interests to heavily influence a candidate through the use of large campaign contributions. For another, voters are given only a preconceived IMAGE of a candidate to respond to, not the real candidates themselves. That is how an absolute moron like George W. Bush was sold to the electorate, and we were severely shortchanged. That is how a total bimbo like Sarah Palin could be sold to us too. This country deserves far better than a defective "product" being sold to it, a product open to special interest manipulation once in office. For products do not need to be qualified for office, but real people (real candidates) do.
3). PACS have GOT TO GO! They lie, distort, and mislead voters for their own benefit. We got a sour taste from the Swift Boat Liars in 2004, and a steady diet of lying pro-insurance company ads all summer and fall in 20089. This distorted and dishonest influence must be removed from the political process altogether.

You're definitely on the right track in calling for a modification or elimination of the Electoral College. But our entire method of holding elections needs a major overhaul as well. This bullcrap of the best-financed candidate usually winning has to be done away with. The candidate's platform should elect the candidate, not the candidate's financial war chest.

Jack Jodell said...

Ooops---I meant 2009 in point 3, not 2089.

Holte Ender said...

In 21st century America the Electoral College must be seen as, having done it's duty for the reasons you and your commenters point out.

Tuesdays in November is a bad day for a General Election, for one, it's a working day, and two, the polls are only open for 12 hours (in my district). With a 50% turnout it was chaos at the last election, I was standing in line for over an hour. Imagine the potential for disturbances if an 80% turnout every happened on a cold, rainy or snowy day.

Choose whatever month you want, but spread the voting over a Saturday and Sunday, the polls could be open over a 48 hour period instead of a measly 12. Then we might see millions more Americans taking part in the electoral process.

The traditional Tuesday, I see as a reason for mediocre turnouts.

Kevin Kelley said...

I wasn't to familiar with The National Popular Vote Bill, but I think it is interesting.

I had never really thought of keeping the electoral college in tact but changing state laws to award their votes to the winner of the popular vote. It makes too much sense to actually be adopted by state legislatures, but I will be writing my representatives about this...

Stimpson said...

I'd be a little more cautious, or 'conservative' if you will. Big changes in an electoral system can mean big problems, so it's best to go slow. At least that's my approach to system changes.

My suggestion is modest and therefore I think it would have a better chance of succeeding: Change the system so that the popular vote winner in each state wins the 2 Senate-allocated EC votes, then apportion the HR-allocated EC votes district by district.

I think that's what some California pols wanted to do within their state, but to be fair the change absolutely must be made country-wide. Otherwise, the GOP would get some of Cali's EC votes but the Dems would get none from Texas, which wouldn't be fair at all.

Anyway, those are my Canadian thoughts on the U.S. system. Feel free to critique them.

Happy New Year, TomCat and readers.

mvymvy said...

The congressional district method of awarding electoral votes (currently used in Maine and Nebraska) would not help make every vote matter. In NC, for example, there are only 4 of the 13 congressional districts that would be close enough to get any attention from presidential candidates. A smaller fraction of the county's population lives in competitive congressional districts (about 12%) than in the current battleground states (about 30%) that now get overwhelming attention , while two-thirds of the states are ignored Also, a second-place candidate could still win the White House without winning the national popular vote.

mvymvy said...

The National Popular Vote bill is currently endorsed by over 1,659 state legislators (in 48 states) who have sponsored and/or cast recorded votes in favor of the bill.

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). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. This national result is similar to recent polls in closely divided battleground states: Colorado-- 68%, Iowa --75%, Michigan-- 73%, Missouri-- 70%, New Hampshire-- 69%, Nevada-- 72%, New Mexico-- 76%, North Carolina-- 74%, Ohio-- 70%, Pennsylvania -- 78%, Virginia -- 74%, and Wisconsin -- 71%; in smaller states (3 to 5 electoral votes): Delaware --75%, Maine -- 77%, Nebraska -- 74%, New Hampshire --69%, Nevada -- 72%, New Mexico -- 76%, Rhode Island -- 74%, and Vermont -- 75%; in Southern and border states: Arkansas --80%, Kentucky -- 80%, Mississippi --77%, Missouri -- 70%, North Carolina -- 74%, and Virginia -- 74%; and in other states polled: California -- 70%, Connecticut -- 74% , Massachusetts -- 73%, New York -- 79%, Washington -- 77%, and West Virginia- 81%. Support is strong in every partisan and demographic group surveyed.

The National Popular Vote bill has passed 29 state legislative chambers, in 19 small, medium-small, medium, and large states, including one house in Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, North Carolina, and Oregon, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, Vermont, and Washington. The bill has been enacted by Hawaii, Illinois, New Jersey, Maryland, and Washington. These five states possess 61 electoral votes -- 23% of the 270 necessary to bring the law into effect.

See http://www.NationalPopularVote.com
http://www.facebook.com/group.php?gid=2208145434#

Lisa G. said...

Wow, all this because I mentioned the electoral college sucked. This has been quite an education and I agree with all the posters here. The EC has served its purpose and needs to go. I would also like to see the voting day changed to a Saturday and Sunday in October, only because I think more people would vote. And if you don't vote, then you don't get to bitch.

You are absolutely right TC - the smaller states hold the larger states hostage, and the states that award all their electoral votes based on the winner of the popular votes is just plain wrong; that is anti-democratic to its core by essentially eliminating the popular vote in that state.

It served its purpose - now it is time for it to go. Many thanks to TC and all the other posters for their thoughts as well. I just thought it was patently unfair - I had no idea just how unfair it was. Now, I hate the idea of it even more. And thanks to all!

Lisa G. said...

And Jack, clearly it was your dog that changed your post to say 2089, because obviously, he counts in dog years. :-)

TomCat said...

Good point, Infidel. Thanks.

Thanks Jack. I am concerned about those other issues as well, but felt that this one was more than enough for one day's work. Is that date in dawg years? ;-)

Holt, I agree, and will deal with those other issues another time.

Thanks Kevin. That's what we all need to be doing.

Stimson, I like your ideas, but doing it your way would run afoul of the Constitutional Amendment problem. The only effect the solution I am proposing could have is to ensure that the ticket with the most popular votes wins.

Welcome mvy, and thanks for all the info. Am I correct that you represent the group I endorsed?

Lisa, you have that right. It's all your fault. ;-) Dang it! You beat me to the doggie comment!!

Trent England said...

The National Popular Vote proposal that mvymvy supports would allow a winner with however small a plurality (while encouraging more and more candidates to run, rather than incentivizing the creation of two big-tent coalitions as the Electoral College does).

And you are just flat wrong about why we have the Electoral College; transportation difficulties were never mentioned at the time even though they are continually assumed nowadays by people who assume rather than research. Check out the debates at the Constitutional Convention and the explanation in The Federalist. There is more about the Electoral College and National Popular Vote at www.SaveOurStates.com.

Lisa G. said...

Trent,
While we all appreciate commenters, there really is no reason to be rude, especially to the host of the blog. If you were a regular reader of this blog, you would know that TC spends a lot of time researching to make sure that his facts are correct and accurate.

It's fine that you have a different point of view; if we all agreed on everything, the world would be a very boring place. However, try to be more civil in your discourse. Calling people out like that has a tendency of making people disregard your thoughts and/or comments in their entirety.

MadMike said...
This comment has been removed by the author.
MadMike said...

We need to change our system, but I agree with Stimpson in that it needs to be done gradually. This is probably the best analysis I have read in years, without being forced to read a book. I think I am going to use it in my political science class TC, if you don't mind of course:-)

mvymvy said...

After more than 10,000 statewide elections in the past two hundred years, there is no evidence of any tendency toward a massive proliferation of third-party candidates in elections in which the winner is simply the candidate receiving the most votes throughout the entire jurisdiction served by the office. No such tendency has emerged in other jurisdictions, such as congressional districts or state legislative districts. There is no evidence or reason to expect the emergence of some unique new political dynamic that would promote multiple candidacies if the President were elected in the same manner as every other elected official in the United States.

Based on historical evidence, there is far more fragmentation of the vote under the current state-by-state system of electing the President than in elections in which the winner is simply the candidate who receives the most popular votes in the jurisdiction involved.

Under the current state-by-state system of electing the President (in which the candidate who receives a plurality of the popular vote wins all of the state's electoral votes), minor-party candidates have significantly affected the outcome in six (40%) of the 15 presidential elections in the past 60 years (namely the 1948, 1968, 1980, 1992, 1996, and 2000 presidential elections). The reason that the current system has encouraged so many minor-party candidates and so much fragmentation of the vote is that a presidential candidate with no hope of winning a plurality of the votes nationwide has 51 separate opportunities to shop around for particular states where he can affect electoral votes or where he might win outright. Thus, under the current system, segregationists such as Strom Thurmond (1948) or George Wallace (1968) won electoral votes in numerous Southern states, although they had no chance of receiving the most popular votes nationwide. In addition, candidates such as John Anderson (1980), Ross Perot (1992 and 1996), and Ralph Nader (2000) did not win a plurality of the popular vote in any state, but managed to affect the outcome by switching electoral votes in numerous particular states.

Marva said...

I have nothing to add except my total agreement. Let's see. I've been bitching about the Electoral College for about 40 years now. Guess I don't have much influence.

Excellent editorial, TC.

Oso said...

Lisa,
Good for you !

Lisa G. said...

Oso,
I thought I was quite polite to the troll, not that he deserved it. My first instinct was to call him an asshole and be done with it. But, I don't like feeding trolls, so I didn't. :)

Oso said...

Lisa-there's always the nuclear option.

Yes, we're talking about The Mom Voice.

Lisa G. said...

Oso,
You and Otis (the husb) had quite the entertaining conversation the other day. And I don't use the mom voice on him - he's a foot taller than me, twice my weight, and he has a brand new black belt. People like that, you don't want to piss off, not that he ever would touch me. His ex-wife punched him in the face once; she is both stupid and crazy.

However, he does sleep VERY soundly and he knows better. He doesn't want to wake up with any critical body parts missing.

He is a recovering Republican though, so we don't always agree. (I still have not forgiven him for voting for Bush twice! Dude, the guy can't even speak a coherent sentence!) This is a work in progress.

We've been married less than a year - but have been together for about 4 years now. If he can make it this long, I'm pretty sure he'll survive. If not, the chipper-shredder is in the shed; I bought it and I know how to use it. He'll make some nice garden mulch for the veggies. He thinks that I don't know that the carburetor is messed up - that's easily remedied. :)

Besides, he's afraid of my youngest; he's not only very smart, but evil like his mom. :) If he had to go live with his father, well, Otis wouldn't stand a chance. He'd have to go into the Witness Protection Program in a foreign country or maybe another planet.

Jeffersonian said...

Trent-

Interesting plurality argument, but fatally flawed. The current winner-take-all system requires a simple plurality to win (think Bush and Clinton). In addition, it relegates 2/3's of the country to fly-over status, meaning they have no voice in electing our President. I'm a strict constructionist. I like the Electoral College. I support the exclusive state power to allocate electors. That's why I can support National Popular Vote.

National Popular Vote preserves the Electoral College. It protects the 10th Amendment right of states to allocate Electors in a way that reflects the best interest of the state. And, National Popular Vote retains the state check on the federal "magistrate".

National Popular Vote ensures that a vote in North Dakota (for example) counts as much as a vote in Ohio and it does it in a Constitutionally appropriate way.

Having been to your Web site, not sure you grasp the principle of federalism here. You seem to confuse winner-take-all for a constitutional principle. Winner-take-all statutes are state statutes, not Constitutional principles. Just an FYI.

Oso said...

Lisa,
Good luck with the rehab !

Wood chippers and the Lorena Bobbit thing would definitely keep me in line. I voted Nader/Peltier/Nader the last three elections.

Otis is a very lucky man.

ivan said...

Your electoral college is like our Canadian Senate. You get in by appointment only. You don't get in through votes.

Stimpson said...

Wow, this was an awesome discussion. Everyone contributed thoughtful points (even Mr. England). And it was all because of your well-written editorial, Tom!

Trent England said...

Lisa, you gave me quite a chuckle. The point you quibble with has nothing to do with POV, but with historical facts that anyone can go and read. I grant that the blog author may not have been the one making the assumption, but he obviously relied in his research on someone who did. Again, this is not my opinion, it's history that I have taken the time to read. Alas, I suspect the good author here has thicker skin than some of the comment authors.

As to "fly over" or "safe" states, they are the places that already overwhelmingly support one candidate or the other. Why shouldn't we have a system that incentivizes candidates to campaign in the most evenly divided states, rather than working to make his safe states even more lopsided? And as anyone who has campaign experience should know, electoral strategy is always about dividing voters into groups, including by geography, and ignoring some and focusing on others. That's a dictate of scarce resources that will be true under any system.

The Electoral College isn't perfect, but it has the virtue of being tested. And it is one reason why this country is remarkably stable (and thus free and prosperous) given our vast geography and unparalleled diversity.

TomCat said...

Welcome, Trent. You speak of incentivizing the creation of two big tent coalitions as though that were a good thing. I'm not sure that it is. On the reasons why we have the electoral college, I am my own source. It is common knowledge that I have heard repeated over and over again since I was in grade school. It is well within the possibility that I could be mistaken on that point. However, the reason I did not research it is that I included it for background only, as it has no bearing on the meat of the topic. Since you took the liberty to advertise your site here, I took the liberty of checking you out. I cannot say that encountering the Coultergeist as the first thing I saw there encouraged me. Further research led me to your parent organization, the Evergreen Freedom Foundation out of Washington state, a prominent teabagger group financed with millions of dollars from foundations who also contribute to such organizations as the AEI and Freedomworks. On his Seattle web page, Glen Beck advertises that people can get involved with him by contacting your EFFWA site. Now I would not question your right to accept funding from or associate with anyone you choose, but my readers deserve this information so they can assess your credibility accordingly.

Lisa, people from the extreme right wing fringe (now the mainstream) tend to see things in absolute terms. They do not consider it rude express their views forcefully.

Mike, that's fine. What do you suggest as a more gradual change? I don't mind you using this in class. I'm sure Jack doesn't either. ;-)

Mvy, I agree. The smallest plurality now wins any state. The National Popular Vote would tend to prevent such a situation from overturning an election against the popular will.

Thanks Marva. I appreciate that.

Amen, Oso.

Easy Lisa. We treat people with respect here regardless of their views.

Amen, Oso.

Lisa, Otis seems like a nice enough guy that I would be very critical if you were to go into Lorena Bobbitt mode with him. That he is a recovering Repuglican shows that there is hope for others so deluded.

Welcome, Jeffersonian. That's a well thought out point. Thank you.

Oso, I can forgive you for Peltier. Too bad he lost. I agree about Otis.

LOL, Ivan!!

Thank you Stimpson.

Trent, I have a pretty thick skin, and I hope you do as well. Watch out for Lisa's attack bunny. Your allocation of resources argument missed the point that the current system artificially skews the value of votes in swing states, making them more valuable to candidates than those in safe states. A National Popular Vote simply equalizes the value of every vote, as should be the case in a democratic republic. We can agree on one thing. The electoral college has been tested. In 2000, it failed the test miserably, and I can't help but believe that our nation would be far more stable today had the winner of that election become President instead of the worst President in US history.

Bill Walker said...

The National Popular Vote bill may be "popular" but it is not constitutional. The reason is because the states in question acted without Congressional approval to create a compact. When the issue come before the courts, and it will, it will be determined to be unconstitutional for that reason.

The only constitutional way the electoral college can be effected is by constitutional amendment which means an Article V Convention. As public record shows all 50 states have submitted 750 applications for an Article V Convention some 20 times the number required to compel a convention call. Congress refuses to obey the Constitution and call such a convention.

The texts of the applications can be read at www.foavc.org. Many of the applications by the states are for the specific purpose of either altering or eliminating the college all together.

mvymvy said...

Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.85

The U.S. Constitution provides:

"No state shall, without the consent of Congress,… enter into any agreement or compact with another state…."86

Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can "not be read literally." In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission,87 the Court wrote:

"Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

"The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee.88 His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta."89

Specifically, the Court's 1893 ruling in Virginia v. Tennessee stated:

"Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States."90 [Emphasis added]

The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…."91

In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:

"The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States"92 [Emphasis added]

The National Popular Vote compact would not "encroach upon or interfere with the just supremacy of the United States" because there is simply no federal power—much less federal supremacy—in the area of awarding of electoral votes in the first place.

mvymvy said...

The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law. The U.S. Constitution gives "exclusive" and "plenary" control to the states over the appointment of presidential electors.

Historically, virtually all of the previous major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation's first election in 1789. However, nowadays, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.

In 1789, only 3 states used the winner-take-all rule (awarding all of a state's electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all rule is now currently used by 48 of the 50 states.

In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all rule) 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, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state.

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.

What the current U.S. Constitution says is "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."

Trent England said...

There is nothing magical about direct democracy; no one is "righter" or "wronger" because they get 50% plus one vote or 50% minus one vote. What matters is whether a system protects individual rights (that is to say, if compelled to choose: would you rather live where a majority tyrannizes one or more minority groups in a directly democratic system or under a despot who protects the rights of all?)

And so the question is, what are the incentives created by a given system? How has the Electoral College effected the ordering of our current political system, particularly its outputs as regards individual rights, and how would the system reorder itself and these outputs change if the Electoral College was modified or replaced. This is a very serious question; nations end, civil wars happen, poverty is the average human condition, freedom is a rare thing even today. America, as we have it today, is exceptional; but it is not inevitable.

mvymvy said...

National Popular Vote did not invent popular elections. Having election results determined by the candidate getting the most individual votes is not some scarey, untested idea loaded with unintended consequences.

Now voters in a handful of closely divided battleground states, such as Florida, get disproportionate attention from presidential candidates, while the voters of the vast majority of states are ignored. 98% of the 2008 campaign events involving a presidential or vice-presidential candidate occurred in just 15 closely divided "battleground" states. Over half (57%) of the events were in just four states (Ohio, Florida, Pennsylvania and Virginia). Similarly, 98% of ad spending took place in these 15 "battleground" states. It is a simple matter that your vote should count as much as anyone elses, as it does in elections for other offices.

The National Popular Vote bill simply guarantees that the presidential candidate who receives the most votes in all 50 states will win the Presidency. Adding up votes of all voters and winning with the most popular votes is the method that is used in virtually every other election in the country.

mvymvy said...

About the concern for minority groups . . .

The Asian American Action Fund, Jewish Alliance for Law and Social Action, NAACP, National Latino Congreso, and National Black Caucus of State Legislators endorse a national popular vote for president.

The influence of minority voters has decreased tremendously as the number of battleground states dwindles. For example, in 1976, 73% of blacks lived in battleground states. In 2004, that proportion fell to a mere 17%.

TomCat said...

Welcome Bill. I'm glad Mvy stopped by to point out the flaws in your argument. Otherwise, I would have had to research the matter myself, and I'm pooped! :-)I'm not surprised that Congress had ignored its Constitutional duty, as it remains the best Congress money can buy... and has bought. That makes this process all the more appealing.

Thanks Mvy. You restated most of what I said and added good document for support.

Trent, when you boil your argument down, your position appears to be that it preserves freedom to apportion the vote of one as more valuable than the vote of another. I will not agree with that, because equality under the law is the only basis for true freedom.

Jeffersonian said...
This comment has been removed by the author.
Jeffersonian said...

Trent:

System input: George W. Bush needs to secure the support of mini-van driving Mom's in suburbs of Dayton Ohio, in order to win ALL OF OHIO'S ELECTORAL VOTES (winner-take-all). If he wins this key "political constituency" he wins the Presidency.

System output: No child left behind, the grandest attempt to federalize education in American history.

An output of the system that runs counter to my conservative federalist principles and desires and I would think yours.

I know a few things about elections and how they get won. Having won them. That's the story of no child left behind and it is a direct result of winner-take-all statutes.

Again, NPV preserves the Electoral College. It simply gives legislatures and Governors - on a state-by-state basis - a Constitutionally granted option to allocate those Electors.

If you understand this thing - really - you should be for it.

TomCat said...

Jefferson, though we are on different sides of the political spectrum, the facts remain unchanged. Even worse than No Child Left Behind is the output of Bush's only successful program: No Millionaire Left Behind.

Trent England said...

TomCat, my argument is that a system is better if it tends to preserve liberty more. When you boil your argument down, your position appears to be that only the inputs matter. Stated more cynically: you seem to care more about the aesthetics of the system than what it actually does. And to both you and Jeffersonian, arguments about Bush on this issue are emotion over logic. Without the Electoral College, we might have something a lot worse than the last eight years (maybe even worse than the current four). Seriously, take some time to think about how to think about tissues like this. It isn't just another policy issue, this is the structure of the system, the mostly unseen incentives that push and pull us along. The Electoral College is a powerful incentive toward national unity and coalition building; it may be part of the key to our national success.

TomCat said...

Trent, I will agree that if a system preserved liberty more, it would be superior. Coalition building and national unity are also good things. But you have failed to offer a scintilla of evidence, that a system which places more value on some votes than others contributes to liberty, coalition building or national unity. Its failures demonstrate the opposite is true.

Jeffersonian said...

@ TomCat - I'm not taking the bait.

@ Trent - I've thought about this a lot. Definitely think you are wrong. Not stupid, just wrong.

TomCat said...

That's OK. We'll just agree where we can.