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Vote of Confidence (Hoover Digest, 2011 No. 4) October 12, 2011

Posted by daviddavenport in Newspaper Columns/Essays.

Another presidential season, another attempted end run around the Electoral College. Let’s be careful. Even now, it has its uses.

While candidates are busy raising money and positioning themselves for the first primaries, one early maneuver in the 2012 presidential campaign is taking place in state legislatures: consideration of the National Popular Vote Bill. California recently became the eighth state to enact this legislation, which would form an interstate compact requiring member states to cast their electoral votes for the winner of the national popular vote, effectively eliminating the Electoral College without the transparency and burden of amending the U.S. Constitution.

But those who are frustrated by the Electoral College—especially Democrats who feel Al Gore unfairly lost the presidency in 2000—overlook the real benefits it provides, as well as its importance to our federalist system. State legislatures should count the cost very carefully before overthrowing the Electoral College in favor of a national popular vote.

For starters, a single national popular vote would alter the way presidential campaigns are conducted. Under the Constitution, there are really fifty-one separate state elections (plus the District of Columbia), and candidates compete aggressively in any state where they might win electoral votes. In the last week or two of a presidential campaign, candidates are likely to cross the country, seeking to win electoral votes in ten to fifteen key battleground states. This keeps the campaign alive in virtually every geographic region and in contested states both large and small. Candidates are forced to address regional issues and local voters as they seek to win the necessary electoral margin.

By contrast, a campaign that is based solely on the national popular vote would be conducted very differently. Candidates would concentrate their efforts in large metropolitan areas, where voters are highly concentrated, and the premium on impersonal media campaigning, whether through older media such as television or new media such as Facebook and Twitter, would greatly increase. Can one really argue that spending more money to capture digital media followers, and conducting more televised events in New York or Los Angeles, creates a better campaign for voters?

The problem of recounts, alone, should give a state legislator pause about voting for the National Popular Vote Bill. Votes must be counted and reported at some stage, and doing so at the state level means the extent of any recount is thereby limited. In 2000, for example, the Florida recount was difficult and lengthy, but nevertheless contained to one state. Imagine the likelihood, then, of a nationwide recount if state electoral votes were essentially irrelevant, as they would be under the National Popular Vote legislation. A national recount would certainly take many months to complete, creating uncertainty about identifying and seating a new president on a timely basis. Given the litigious nature of recent elections, such a prospect is hardly remote.

A national popular vote would demand a national recount. Imagine how long and uncertain that could be.

Ironically, one of the arguments in favor of the National Popular Vote Bill is that it would make every vote count and, in that sense, be fairer than the present system. But in the end, the new approach essentially trades one kind of fairness for another. Imagine, for example, a Virginia voter who is a Democrat and her state is carried by the candidate of her party. But if the Republican candidate wins the national popular vote, the elector in her state will actually cast “her” vote in favor of the Republican. What is fair, or even representative, about that? Such are the vagaries of tinkering with the two-hundred-year-old electoral system.

In a larger sense, this end run around the Electoral College would also kick down an important pillar of our system of federalism. The U.S. Constitution does not establish a pure democracy, but rather a federal republic. The genius of a republic is that while not every element is purely democratic, several checks and balances, as well as intentional balances of power, work together to make certain that the “cool deliberate sense of the community” is carried out, as it says in Federalist No. 63. Roles are assigned to both the people and the states. For example, the U.S. House of Representatives is based upon population and is referred to as “the people’s House,” but the U.S. Senate is based upon state representation. Similarly, in electing a president, there is a role for the people (the popular vote) and a role for states (the electoral vote). These checks and balances of constitutional federalism should not be easily bargained away by means of an interstate compact.

Even if your candidate carries your state, your electors might have to cast all their votes for the other side. Is that fair?

Indeed, those who feel the present system of voting is unfair have two constitutionally proper remedies, both of which are superior to the end run of the National Popular Vote Bill. First, they can amend the Constitution and eliminate the electoral system in a straightforward and transparent way. Of course, this would require an affirmative vote of two-thirds of each house of Congress and approval by three-fourths of the state legislatures, an intentionally difficult bar to reach.

A second, more readily available alternative is to encourage states to move away from their winner-takes-all method of allocating electoral votes. Under the Constitution, states are free to decide how to allocate their electoral votes, according to their popular vote. All but two states allow the winner of their popular vote to receive all the state’s electoral votes; the remaining two, Maine and Nebraska, allocate electoral votes according to the winner of the popular vote in each congressional district. This would address a primary concern of some who seek reform by making presidential elections more competitive in states where one party dominates electoral politics. For example, in California, a state rich in electoral votes but dominated by one party, allocating electoral votes by congressional district would create competition in many regions of the state and attract candidates to come more frequently and campaign. If electoral reform is needed, this would be preferable from almost any point of view.

The National Popular Vote Bill is gaining some bipartisan momentum by concentrating on the superficial fairness of a popular vote and by ignoring the practical advantages of the Electoral College and the deep and longstanding values of the federalist system. When states having enough electoral votes to win an election (270) have signed, the compact goes into effect. The bill raises sufficient constitutional questions that it will doubtless be challenged if and when it becomes effective. In the meantime, one can only hope that enough state governors and legislators will see through the superficial appeal of the bill and, as Benjamin Franklin urged, keep the republic.

To link to the article in the Hoover Digest, 2011 No. 4 please click here:  http://www.hoover.org/publications/hoover-digest/article/95536

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