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Campaign 2016 Has Already Begun In A State Legislature Near You (Forbes.com) January 30, 2013

Posted by daviddavenport in Op/Eds.

Here are a couple of trivia questions for your next dinner party: Where in the Constitution does it provide for the Electoral College, and where does the College meet? The answer to both questions is the same: nowhere. Although the Constitution does provide for electors, there is no mention of an Electoral College per se, and electors only meet in their individual states, not as a national body.

Surprisingly the Electoral College has become a hot topic with two very different movements actively seeking to reform it. Republicans, who have lost four of the last six presidential elections, are moving in key battleground states to change electoral voting from winner-takes-all to a distribution of votes depending on the popular vote. And Democrats, still hurting from 2000 when Al Gore won the popular vote but lost the electoral vote, have been championing a National Popular Vote that would, as a practical matter, do away with the Electoral College and its impact.

Few realize that there is no national election for president. Instead, Article II of the Constitution empowers each state (and the District of Columbia) to conduct its own election, which is why there are variations in voter registration laws, early voting, the use of voting machines, etc. Each state legislature is also to decide how its electoral votes—consisting of one for each congressional and senatorial seat in the state—shall be cast. All states but two, Maine and Nebraska, allocate their electoral votes on a winner-takes-all basis, while the latter two give one electoral vote to the winner of each Congressional district’s vote, and two for the statewide winner.

Although Maine and Nebraska never actually split their electoral votes until Nebraska in 2008, one could readily imagine how this kind of split electoral vote could make a big difference in contested battleground states. And this is precisely where Republicans have begun a state-by-state effort to effect change. In Virginia, for example, if electoral votes had been allocated by Congressional district in 2012, Obama would have won only 4 electoral votes instead of the state’s total of 13. Such changes are now being considered in Michigan Ohio, Pennsylvania and Virginia, all states that Obama carried electorally in 2012, but where Republicans are strong statewide.

While this effort passes Constitutional muster, the National Popular Vote bill, also being considered by state legislatures, is an obvious end-run around the electoral system. This bill would require electors to cast their votes in favor of the winner of the national popular vote, not their state’s popular vote. Proponents of the bill would really like to do away with electoral voting altogether but, realizing how difficult it is to gain the two-thirds vote of both houses of Congress to approve and three-fourths of state legislatures to ratify a Constitutional amendment, have instead devised this clever end-run. When enough states constituting the required 270 electoral votes to elect a president have passed it, its provisions go into force. Currently 9 states holding 132 electoral votes have adopted it, putting the effort at the half-way mark.

The National Popular Vote bill is a thinly veiled effort to void Article II of the Constitution and its elector system. It essentially eliminates any state role in elections, and means that even when a state votes overwhelmingly for Candidate A, its electoral votes will go to Candidate B instead if he won the national popular vote. Talk about disempowering voters. It also raises the specter of lengthy and unsettling national recounts of votes. The controversial recount of Florida votes in 2000 could well take place across the nation, since we would then have essentially a national popular vote, potentially delaying the seating of a new president for months.

There are some things to like about the Congressional district voting used by Nebraska and Maine. Not only would it make battleground states more competitive, but even a state like California—which is so dominated by Democrats that presidential candidates rarely show up to campaign, but only to raise money—would see competition for valuable electoral votes in competitive districts.

Brace yourselves, America. The jockeying for campaign 2016 has already begun in a state legislature near you.

Please click on the link to view the article in Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/01/30/campaign-2016-has-already-begun-in-a-state-legislature-near-you/

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