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April 2, 2007

National Popular Vote: Unconstitutional And A Bad Idea To Boot

by Doug Mataconis

Today, the Maryland legislature approved a bill that purports to sign the state on to a proposed multi-state compact that would, in effect, eliminate the Electoral College as we know it:

ANNAPOLIS, Md. — Maryland is poised to become the first state to approve giving its electoral votes for president to the winner of the national popular vote, rather than to the candidate chosen by state voters.

The plan, passed Monday by the state House, would take effect only if states representing a majority of the nation’s 538 electoral votes adopted the same change.

Some states are considering the move as a way to avoid a scenario in which a candidate wins the national popular vote but loses in the Electoral College, as Democrat Al Gore lost to George W. Bush in 2000.

Supporters of the Maryland bill said the state, which has 10 electoral votes, gets passed over by presidential candidates who head to larger battleground states. Opponents say the change is unnecessary and constitutionally questionable.

The final vote in the Democrat-controlled House of Delegates was 85-54, with only one Republican endorsing it. The Senate has already passed the bill, and Gov. Martin O’Malley, a Democrat, plans to sign it, said spokesman Rick Abbruzzese.

Delegate Jon Cardin argued that the measure would make Maryland more relevant in the presidential campaign.

As is usually the case with these creative attempts to bypass the Constitution, the clear language of the Constitution would seem to make it clear that the National Popular Vote plan is likely unconstitutional. While it is true that the Constitution largely leaves up to the individual states how Electors are chosen, Article I, Section Ten clearly prohibits states from entering into inter-state compacts without the approval of Congress:

No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

The National Popular Vote “compact”, therefore, would clearly be unconstitutional unless it also received the approval of Congress, which seems unlikely.

But the fact that something is unconstitutional doesn’t stop some people. For example, writing about the proposal in today’s Washington Post, E.J. Dionne made this rather astonishing comment:

Yes, this is an effort to circumvent the cumbersome process of amending the Constitution. That’s the only practical way of moving toward a more democratic system. Because three-quarters of the states have to approve an amendment to the Constitution, only 13 sparsely populated states — overrepresented in the electoral college — could block popular election.

Just as with the ongoing efforts to ignore the Amendment process and give the District of Columbia a vote in Congress via legislation, the National Popular Vote is an admission by it’s advocates that they don’t have the support needed to change things legally, so they have decided the only option is to ignore the law.

Moreover, as KipEsquire points out, there is a way, short of amending the Constitution or violating it’s very terms the way the NPV would, to make the Presidential election process more reflective of the popular will, it’s called the District Method:

This method divides electoral votes by district, allocating one vote to each district and using the remaining two as a bonus for the statewide popular vote winner. This method of distribution has been used in Maine since 1972 and Nebraska since 1996, though neither state has had a statewide winner that has not swept all of the Congressional districts as well. Consequently, neither state has ever spilt its electoral votes.

Though I personally don’t think that the current Presidential election system is as bad as people make it out to be, the District method not only makes sense, but would also make Presidential elections more of a nationwide phenomenon than they are today. Rather than ignoring a state entirely because it so heavily favors their opponent, candidates would have an incentive to concentrate on areas of the state where they would be able to win one, or more, Congressional Districts and thus pick up an Electoral Vote or two that could make the difference in the election.

More importantly, though, the District Method could be implemented by each state on its own without any need to take yet another step that turns the Constitution into just so many words on a piece of paper.

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18 Comments

  1. “Delegate Jon Cardin argued that the measure would make Maryland more relevant in the presidential campaign.”

    A popular vote would make Maryland more irrelevant. Why would anyone go there when they can go to California, New York, and Texas and pick up more votes? The Electoral College was put in to stop large states from dominating and outvoting smaller states.

    Comment by trumpetbob15 — April 2, 2007 @ 6:57 pm
  2. The electoral college is an antiquated system. It was probably useful when information didn’t disseminate as quickly as it does today. Why not have some real election reform and institute proportional representation? Hell, if we’re all worried about the Constitution and how things use to be, why not go back to letting the state legislatures select their senators? Doesn’t really matter, though, voting is just a scam to placate the masses.

    Comment by js290 — April 2, 2007 @ 7:06 pm
  3. Absolutely incorrect about constitutionality. Even John Fortier of the American Enterprise Institute, who opposes a national popular vote, admits the plan is perfectly constitutional. First, the Supreme Court has ruled that compacts not infringing upon federal power don’t need congressional approval. Second, even if the courts were to rule it needs congressional approval (however unlikely) that would simply means it needs a statutory vote of approval.

    Trumpetbob15 — when every vote is equal, every voter has equal power. Right now, only the people living in swing states matter to the campaigns. The rest don’t matter at all.

    The case for a national popular vote isn’t a partisan one. Back in the day it was supported by Bob Dole, Richard Nixon, Gerald Ford, Howard Baker, George Herbert Walker Bush and many more. It’s what 70% of Americans want.

    Comment by Todd Nicholson — April 2, 2007 @ 7:08 pm
  4. I agree with Trumpetbob.

    Far from being “overrepresented in the electoral college,” the system gives smaller states as a voice in the federal government they would otherwise not have.

    Comment by Stephen Macklin — April 2, 2007 @ 7:15 pm
  5. Todd,
    Yes, swing states matter now, but were the same states always swing states? I honestly don’t know, but I would guess not because states go through cycles like everything else.

    js290,
    Your example of the Senators being selected by state legislators is inaccurate. There was an actual amendment, number 17, that officially changed that process. This post was talking about not following that route by not amending the Constitution.

    Comment by trumpetbob15 — April 2, 2007 @ 7:40 pm
  6. I would agree with Todd that all it would require to pass Constitutional muster is a vote by Congress to say that such compacts would be allowed. Considering the Democrats are in Congress, and their candidate “really won” in 2000, I would say that it’s not far-fetched to think that it might have a shot at passing.

    I’m not sure whether, based on his point, that it would pass Supreme Court muster, but that’s more due to my own ignorance of the relevant cases and whether this would be considered a “federal matter” than anything else…

    Comment by Brad Warbiany — April 2, 2007 @ 9:34 pm
  7. It’s accurate that interstate compacts that don’t infringe on federal power don’t require congressional consent. I believe one of the relevant, precedent setting cases is Virginia v. Tennessee (or possibly “Tennessee v. Virginia”).

    The District method is a terrible, terrible idea, as it would replace a handful of battleground states with a handful of competitive districts. Don’t forget that gerrymandered districts have created wholly undemocratic and lopsided districts; the incentive to further bastardize our congressional representation districts to gain an Electoral College advantage would be enormous.

    I prefer a constitutional amendment for direct election with a majority requirement (using instant-runoff voting, ideally), but the NPV plan is a sensible alternative. It would, I believe, pave the way for an amendment.

    Finally, remember that while small states may have a *mathematical* advantage, very few of them get *any* attention from campaigns because very few are battlegrounds (NH was the only small state in play in November ’04). How many campaign visits are made to North Dakota and other small states that are reliably “red” or “blue”? How much gets invested in campaign organizing in those states? How much gets spent on presidential candidate TV ads? The answer: Just about zero. Those voters, and their views, are irrelevant.

    Comment by Democracy Boy — April 2, 2007 @ 9:56 pm
  8. Well, “Democracy Boy”, have you bothered to consider the devastation that has been wrought on this country by instituting democracy (i.e. direct election of senators, direct legislation at the state level by voters, politicians listening to pollsters, etc.)? In the 19th century, the average American’s tax burden amounted to about 5% of their income. Today it is 35% for someone in the middle class. And, on a side note, if your income comes from employment rather than assets, you are not truly wealthy, regardless of how much employment income you have. Read “Rich Dad, Poor Dad” to understand why.

    In any case, the point is, our government is just as corrupt, probably more so, than it was in 1880, our citizens pay far more in taxes, our politicians spend far more money on crap, our government schools are simply awful, our executive branch has its finger in every pie (and did so long before Bush II), and the list goes on.

    See what wonders democracy brought about. You should be agitating for a return to a representative republic, which protects the liberties of the citizen from the depradations of the government, not arguing for more democracy.

    Comment by Adam Selene — April 3, 2007 @ 12:01 am
  9. The small states are the most disadvantaged of all under the current system of electing the President. Political clout comes from being a closely divided battleground state, not the two-vote bonus. Small states are almost invariably non-competitive in presidential election. Of the 13 smallest states, Idaho, Montana, Wyoming, North Dakota, South Dakota, and Alaska regularly vote Republican, and Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC regularly vote Democratic. These 12 states together contain 11 million people. Because of the two electoral-vote bonus that each state receives, the 12 non-competitive small states have 40 electoral votes. However, the two-vote bonus is an entirely illusory advantage to the small states. Ohio has 11 million people and has “only” 20 electoral votes. As we all know, the 11 million people in Ohio are the center of attention in presidential campaigns, while the 11 million people in the 12 non-competitive small states are utterly irrelevant. Nationwide election of the President would make each of the voters in the 12 smallest states as important as an Ohio voter.

    Comment by John Koza — April 3, 2007 @ 7:58 am
  10. Adam — Electing the president __is__ representative democracy. The framers weren’t against direct elections — indeed they required them for every Member of the U.S. House of Representatives.

    The Electoral College is unrepresentative democracy. Our founders would be shocked to having us accept a system that makes most states completely irrelevant. Can you imagine how destabilizing they would have expected that to be?

    Trumpetbob –the states are pretty settled into being either swing or not. You’ll see little changes, but not much. If it’s a 50-50 race next year (and that much we can’t predict), we can write off about 32 states right now.

    Comment by Todd Nicholson — April 3, 2007 @ 8:10 am
  11. People who attack the 17th amendment (direct election of US Senators) (passed in 1913) never mention the fact that when state legislators picked US Senators, bribery was common; so was gridlock, which meant that sometimes a state would go an entire year or more without any US Senator because the legislature couldn’t agree. There is a reason the 17th amendment passed.

    Comment by Richard Winger — April 3, 2007 @ 8:30 am
  12. Todd,

    The Electoral College is unrepresentative democracy. Our founders would be shocked to having us accept a system that makes most states completely irrelevant. Can you imagine how destabilizing they would have expected that to be?

    Considering that the Founders created the Electoral College, what makes you think they’d be shocked by the fact that it still exists. I would submit that the EC is working just as they intended.

    Comment by Doug Mataconis — April 3, 2007 @ 8:37 am
  13. People who attack the 17th amendment (direct election of US Senators) (passed in 1913) never mention the fact that when state legislators picked US Senators, bribery was common; so was gridlock, which meant that sometimes a state would go an entire year or more without any US Senator because the legislature couldn’t agree. There is a reason the 17th amendment passed

    You say that as if it is a problem :)

    OK, anarcho-capitalist snark aside, any state legislature than refused to send delegates to the Federal Government was shooting itself in the foot. The common incidence of states not being able to send delegates was more the result of the Federal Laws that dictated ow state legislatures appointed Senators.

    I would think that there would be fewer incidences of unrepresented states if state legislatures were free to work out their own procedures for appointing senators.

    Comment by tarran — April 3, 2007 @ 10:11 am
  14. When making comparisons or assumptions as to what the Founding Fathers would think, it’s important to remember that our current society bears little to no resemblance to the United States that existed when the Constitution was written. Modern methods of communication could not have been conceived of 200 odd years ago. Literacy rates, educational levels, etc. are also significantly more advanced.

    The Founding Fathers did not think women should vote. They held that slaves were only 3/5ths of a person. They opposed the direct election of US Senators.

    The Founding Fathers believed in Democracy. A national popular vote for President is the embodiment of Democracy and a change that is long overdue.

    Comment by lars — April 4, 2007 @ 2:09 am
  15. Lars,

    Since today’s society is so different, perhaps we should just throw out the Constitution and start over. The Founding Fathers did not believe in a democracy; rather, the United States was a representative republic. As some of the quotes at the top of this site show, the Founding Fathers did not care for the idea of democracy since the majority could oppress the minority.

    Now concerning the slaves and women comment. Women were not considered the same as men back then. Yes, we may agree that idea is outdated, but it doesn’t affect the ideas of the Constitution, ideas of liberty which can now be applied to both men and women. It is also illuminating that you refer to the 3/5 compromise. Do you know who was on both sides of the debate? Slavery advocates wanted slaves to count as full persons so they would have more representation in Congress; foes of slavery did not want slaves to count at all, thus giving free states more power. Once again, once society accepted blacks as equals (something some states had in place at the time the Constitution was adopted), the freedoms of the Bill of Rights applied to blacks as well as whites.

    Nobody is saying on here that the President can’t be elected by popular vote, just not under the current system.

    Comment by trumpetbob15 — April 4, 2007 @ 2:11 pm
  16. lars,

    When making comparisons or assumptions as to what the Founding Fathers would think, it’s important to remember that our current society bears little to no resemblance to the United States that existed when the Constitution was written. Modern methods of communication could not have been conceived of 200 odd years ago. Literacy rates, educational levels, etc. are also significantly more advanced.

    Sorry, but this is nonsense. The level of technology has nothing to do with whether the system created by the Constitution is still a viable system.

    The beauty of the Constitution lies in two things.\

    First, it’s simplicity. Modern constitutions are incredibly long and incredibly detailed — usually because they seek to cover every aspect of life. The U.S. Constitution was originally only four pages long, it contains general principles and rules that have guided the system for over 200 years quite well. I don’t see any need to scrap it.

    Second, the Founders gave is the means to change the Constitution through the Amendment process. Yes, it requires a super majority of states for an amendment to be ratified, but that’s because changing the structure of government is not something that should be undertaken lightly.

    Comment by Doug Mataconis — April 4, 2007 @ 2:17 pm
  17. trumpetbob,

    Nobody is saying on here that the President can’t be elected by popular vote, just not under the current system.

    At least not without amending the Constitution.

    Comment by Doug Mataconis — April 4, 2007 @ 2:18 pm
  18. No-one is disputing the brillance of the Founding Fathers. My point was simply if the Founding Fathers were drafting the Constitution today it would be dramatically different.

    American democracy is ever evolving as evidenced by my previous examples. That ability is a testiment to the Founding Fathers and our country. A national popular vote for President is the next step.

    Comment by lars — April 5, 2007 @ 1:47 am

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