National Popular Vote
November 13, 2015
The Founding Fathers created the Electoral College to serve as a sort of intermediary between citizens and the federal executive branch, the idea being that voters would select as their Electors local leaders known to them as people of sound judgment; the Electors, in turn, would meet and discuss the relative merits of those seeking the presidency before casting their ballots.
Many of the Founding Fathers believed that this system would quash, or at least minimize, the influence of what they called “factions” –political parties– in the selection of our national leaders.
That belief yielded to reality when George Washington was succeeded by John Adams, who won the 1796 election as the candidate of the Federalist party. And every president since has been elected with the support of a party.
In the disputed 2000 election, Al Gore won the national popular vote, but the U.S. Supreme Court in effect awarded Florida’s 25 electoral votes, and thus the presidency, to George W. Bush.
That election result poured fuel on what had been a slowly smoldering and widely shared dissatisfaction with the role of the Electoral College.
There are multiple reasons for this dissatisfaction, but two are paramount. The first is that on four occasions the winning candidate received fewer popular votes than his opponent. Besides Bush, they were John Quincy Adams, to Andrew Jackson in 1824; Rutherford B. Hayes, to Samuel J. Tilden in 1876; and Benjamin Harrison, to Grover Cleveland in 1888.
The second widely perceived major problem about the Electoral College is the modern trend for the election to be decided by so-called “swing states”. These are the relatively few states whose electoral votes are actually up for grabs. In the current era, the majority of states are either deep blue or bright red; the results for those states are known well before the actual election, and their electoral votes tend to balance out.
So the presidential election is actually decided in a small group of states – usually about five or six – that are neither blue nor red. In 2012, they were Colorado, Florida, Nevada, Ohio and Virginia.
Opinion polls over the years have consistently shown a substantial majority of the public in favor of electing the president by direct popular vote; the results from a 2007 poll found 72 percent in favor.
But amending the U.S. Constitution is a daunting enterprise. First, two-thirds of both houses of Congress must vote to propose an amendment. Then, three-fourths of the states must approve the amendment. Since the Bill of Rights was ratified in 1791, only 17 amendments have survived this process.
According to the advocacy group Fair Vote, there have been “at least 700 proposed amendments to modify or abolish the Electoral College – more than any other subject of Constitutional reform.” None of them achieved the necessary two-thirds super-majority in both houses of Congress.
After reviewing this history of futility, Northwestern University law professor Robert Bennett came up with an insight: because the Electoral College was enshrined in the U.S. Constitution, everyone had simply assumed that getting to direct popular vote would require a Constitutional amendment. He asked himself this question: could there be a way to elect our President by direct popular vote without amending the Constitution?
His answer was brilliant in its simplicity.
Under the U.S. Constitution, the method by which a state chooses its presidential Electors is entirely left to the state. The Constitution does not mandate a popular election of the Electors, or any other method.
What if a group of states got together and each enacted the same law, mandating that their Electors would be pledged to the candidate that won the national popular vote? And this law would go into effect only if enough states joined to have at least 270 Electoral College votes – the number required to elect a president. That way, you wouldn’t need all the states; the setup could work with as few as the eleven most populous states.
Bennett’s idea percolated through the academic world. Constitutional lawyers examined it and refined it. In 2006, a group led by Stanford computer science professor John Koza formally incorporated a non-profit advocacy organization: National Popular Vote (http://www.fairvote.org/reforms/national-popular-vote/).
National Popular Vote (“NPV”) drafted a model bill for consideration by the state legislatures and began a campaign to secure its adoption. Within four years, the bill had been passed and signed into law in six states plus the District of Columbia with a total of 76 electoral votes, and in 2010, I wrote that “the National Popular Vote plan is slowly but surely gaining support. And it may well be enacted by enough states to take effect within the next decade.” (“Changing How We Elect Our President” (http://domemagazine.com/glazer/lg1210)
We are halfway through that decade and the accord has now been enacted in eleven jurisdictions possessing 165 electoral votes – 61% of the 270 needed to take effect. They are Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, District of Columbia, Vermont, California, Rhode Island and New York.
But as the plan has crept closer to execution, so has critical scrutiny of it. Critics point to ARTICLE I, SECTION 10, CLAUSE 3 of the U.S. Constitution, which mandates:
“No State shall, without the Consent of Congress, … enter into any Agreement or Compact with another State, or with a foreign Power …”
The National Popular Vote plan is, on its face, plainly an “interstate compact”, say the critics, and may not take effect unless and until Congress expressly approves it. But NPV’s advocates argue that Congress’s imprimatur is no longer necessary. The NPV website argues:
“The U.S. Supreme Court has ruled that congressional consent is only necessary for interstate compacts that ‘encroach upon or interfere with the just supremacy of the United States [U.S. Steel Corporation v. Multistate Tax Commission, 1978].’ Because the choice of method of appointing presidential Electors is an “exclusive” and “plenary” state power, there is no encroachment on federal authority.
- Thus, under established compact jurisprudence, congressional consent would not be necessary for the National Popular Vote compact to become effective.
- Nonetheless, National Popular Vote is working to obtain support for the compact in Congress. ”
Is congressional approval required? No one knows.
One of the plan’s opponents is the National League of Women Voters. They support abolition of the Electoral College in favor of a popular vote, but they feel that NPV’s plan would exchange one imperfect system for another.
Consider a scenario where one party controls a large state which has joined the plan, and without that state’s electoral votes the election would revert to the Electoral College. If that party’s leadership sees that the prospects for their presidential nominee would be better under the Electoral College, could they withdraw their state? The compact provides that they could not withdraw after July 20 of a presidential election year. Is this enforceable? No one knows.
As the number of adopting states has grown, so has the realization that this could actually happen, and this has fueled the resistance. One source is the swing states, which have little interest in joining a reform that would kill their special clout. But a partisan divide is also developing. No red state has adopted the NPV, and some of the opponents argue that NPV would reduce the Electoral College-based influence of smaller, rural states which vote Republican in favor of states with large cities, which tend to vote Democratic in presidential years, and in large numbers.
And yes, the plan has been introduced in Michigan. It is Senate Bill 88 of 2015, and it has been referred to the Senate Elections and Government Reform Committee.
Wounded Warrior, a recently published biography of former governor and Supreme Court justice John Swainson. He is also a retired Ingham County Circuit Court Judge and former legal advisor to Gov. James J. Blanchard.is the author of