California Dreaming: An End to the Wretched Electoral College

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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.

John Koza, the initial designer of NPVI, told me that the organization's position is in the alternative.  Reading the key precedents on interstate compacts, he said, NPVI believes that its compact does not require congressional consent.  But "as a matter of practical politics," he expects the compacting states to seek congressional authorization if they reach the 270-vote threshold. At that point, he suggests, the measure would have political momentum that would make it hard for Congress to block. NPVI has already begun conversations with lawmakers on the Hill, and has found receptive ears, he said. 

Congressional consent seems to me to be absolutely essential. The reason is that interstate compacts are routinely the subject of federal court cases. Without congressional consent, the compact will be a tempting target for a lawsuit by any state that has not signed on. And because the federal courts don't give "advisory opinions," the issue can't find its way to court unless the votes have been cast in the states but the electors have not yet given their votes. So the stage will be set for a replay of Bush v. Gore, and any halfway competent conservative clerk could draft an opinion holding that the NPV compact is invalid because it disturbs the federal-state balance without congressional consent.    

NPVI is a very elegant way of bringing the issue of a national popular vote to the nation's attention. It embodies a principle that's hard to oppose and can spark national dialogue over the lame defenses of the system -- such as the canard that the current system "helps" small states.  

As professor Vikram Amar of the University of California-Davis points out, it also harkens back to the local efforts that brought popular election of Senators to the point where not even Senators had the nerve to block a constitutional amendment. Oregon pioneered a system by which voters expressed their preference for Senate candidates at the same time they elected legislators, and legislators stated on the ballot whether they would follow the will of the people. By 1911, more than half the states had similar provisions, and the way was cleared for approval of the Seventeenth Amendment two years later.

Constitutional amendment in the long run is the way to make this change for good and all.  My one fear about NPVI is that, even with congressional consent, a losing Republican candidate would sue to void the compact. An aggressive sophist like Justice Scalia could come up with arguments that not even Congress can change the system of selection by state. As we learned in 2000, the Supreme Court is capable of twisting the law beyond recognition when it has the chance to award the White House to a candidate favored by five of the nine Justices. Scalia later told us to "get over it"; but American democracy still hasn't fully recovered from Bush v. Gore. Of all the agencies of our government, the Supreme Court is the least suited to decide presidential elections. Whatever happens with NPVI, I hope we don't give the current Court another chance to disgrace itself and us.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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