California Dreaming: An End to the Wretched Electoral College

The system we have for presidential elections is dangerous and rickety. It should be reformed -- very carefully.


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I used to have nightmares about the electoral college.  Then in 2001, they all came true. Since then, I've dreamed of getting rid of this wretched constitutional atavism. In the wake of California's recent adoption of the National Popular Vote plan, I'm having that sweet dream again. 

The electoral-vote system is, and always was, what computer designers would call a kludge, vague and dangerous. The Philadelphia Framers first turned toward electors for the worst of reasons -- a desire not to be "unfair" to slave states. James Madison told the delegates that election of the president by "the people at large ... would be as likely as any that could be devised to produce an Executive Magistrate of distinguished Character."  But popular election would "harm" the South because "the right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of the Negroes. The substitution of electors obviated this difficulty ..." 

Even for those dulled to the moral squalor of its slave origins, however, the electoral-vote system has another disadvantage: It doesn't work. It broke down within 12 years of its adoption, when electoral voting produced a tie between Thomas Jefferson and Aaron Burr. The resulting struggle in the House brought the country to the edge of civil war. Since then, it has kept breaking down. The election of 1824 ended up in the House; in 1876 and 2001, the electoral-vote mechanism malfunctioned in other humiliating and dangerous ways. The system has put the popular-vote runner-up in the White House in 1824, 1876, 1888, and 2000. (In case you think I am just being a sore-Bush v. Gore loser about this, please note that in 2004, the switch of about 60,000 votes in Ohio from Bush to Kerry would have made Kerry president, even though Bush would still have won the popular vote by about 3 million votes.) 

This wretched system, however, is almost impossible to get rid of by the Article V amendment process, because only 13 states can block ratification. One party or another will always be likely to smell disadvantage in the next election from such an amendment, and rustle up enough "no" votes to block it.

The National Popular Vote Initiative aims to circumvent this hurdle through state legislation and what is called an "interstate compact." The NPVI is the brainchild of John R. Koza, a Stanford computer scientist who is also the inventor of the lottery scratch-it.  

Here's how it would function: Individual states enact statutes directing their secretaries of state to certify the winner of the national popular vote as the winner of that state's electoral vote, regardless of who won the actual statewide popular vote. The same statute ratifies an interstate "compact" with all other states who have joined the NPVI; under the compact, each state will designate its electoral votes for the popular-vote winner, and no state will withdraw from that commitment less than six months before election day. The compact will only take effect when states representing 270 electoral votes have joined it. Thus, on the day it takes effect, the presidential election will have been transformed: Whoever wins the popular vote nationwide will be guaranteed a winning 270 electoral votes, regardless of what the non-participating states do.

This sounds good; the District of Columbia, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Washington, and Vermont have signed on. With California on board, NPVI's compact now covers 132 of the 270 electoral votes it needs. NPVI statutes have also been proposed in Alaska, Georgia, Iowa, Kansas, Minnesota, Nebraska, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, and West Virginia.

The complication is the interstate compact. Article I of the Constitution provides that "no State shall, without the consent of Congress ... enter into any agreement or compact with another state."  This would suggest that the NPVI compact couldn't go into effect without Congressional consent. Over time, the Supreme Court has held that not every agreement between states requires congressional authorization -- states can resolve boundary disputes, buy and sell property among themselves, and tackle environmental issues without seeking approval. But agreements that might upset the federal-state balance, or give the compacting states disproportionate power over states not in the compact, usually require some congressional action.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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