Electoral College Reform--The National Popular Vote Plan

Jamin Raskin, a Democratic State Delegate from Montgomery County Maryland, and a law professor at American University, writes that electoral college reforms, like proportional allocation, are a cure that is worse than the disease. Then he launches into a screed against the raw naked partisanship of the California ballot initiative as somehow evil and then concludes with his own naked partisanship.

It's hardly news at this point that, as it works today, the Electoral College undermines American democracy. It does so in three fundamental ways: First, it betrays the principle of majority rule, threatening every four years to deliver the White House to the popular-vote loser. Second, it reduces the general election contest to a matter of what happens in Ohio, Florida, and a handful of other swing states, leaving most Americans (who live in forsaken "red" and "blue" states) on the sidelines. This in turn depresses turnout and helps give us one of the worst rates of voter participation on earth. Third, because of its proven pliability, the Electoral College invites partisan operatives, legislators, secretaries of state and even Supreme Court justices to engage in constant strategic mischief and manipulation at the state level.

This last problem is about to make things much worse, as strategic actors try to exploit spreading discontent with the system by pushing "reform" proposals for purely partisan advantage. Thus, in California, top Republican strategists are now proposing a ballot initiative that would "reform" the system by awarding the state's electoral votes by congressional district. Its real purpose is to break up the state's 55 electors, which typically go to the Democrats in a bloc as inevitably as Texas, Georgia, and Oklahoma give their 56 combined electors to the Republicans. Following the proposed division of California's well-gerrymandered blue and red congressional districts, it is likely that the 2008 GOP nominee under this plan would carry away about 20 electors. In one fell swoop, this would ruin the Democrats' chances for winning the presidency.

In examining the initial claims of Delegate Raskin, one can come away with the sense that Raskin's cure is better than all the others, but it doesn't mean it that his cure should be chosen either.

It is true that the Electoral College can reward a candidate with the Presidency even when they don't get the most popular votes, we have experienced this twice in our history. It is certainly arguable that outside of Florida, Pennsylvania and Ohio, most of the presidential election doesn't matter for most states due to the overwhelming wins for one party or another. Yes, the nature of the Electoral College, i.e. that it is based on how the state legislatures determine how electoral votes will be decided and allocated, makes it vulnerable to partisan tinkering, but none of that mischief has happened, while it may indeed happen in the future.

There is no doubting the the effort in California is based up a desire to win, but the sponsors of the ballot question to change California's winner take all electoral vote allocation to a proportional allocation is completely within the law, is not a stealth attack (how can it be with all the press it is getting) or that it is somehow "undemocratic." The ballot questions seeks to have the people, acting in their legislative capacity, change the manner in which California's electoral votes are allocated--how undemocratic is that? There is a question of whether the ballot initiative is constitutional in the end, since the Constitution gives the state legislatures the power to decide electoral votes, with the question of whether the populace can do it. Such a case would be a wonderful exposition on which group holds the ultimate power in our governmental system, the voters or the legislature.

Raskin holds forth on the National Popular Vote plan, a plan which asks states to pass legislation that would allocate all of that state's electoral votes to the candidate who wins the national popular vote.

It simply calls for an interstate compact among all states to agree to cast their electoral votes for the winner of the national popular vote. It becomes effective and binding when states representing at least 270 electors enter the compact. This is the way we will get to elect presidents as we elect governors and senators: everyone acting together, without games and subterfuge.

Following this plan bypasses the concern about amending the Constitution to dispose of the Electoral College--a difficult proposition, and it sounds imminently fair--the top vote getter wins, right?

Well not so fast. Here are some numbers for people to remember, 270--the number of electoral votes needed to win the Presidency in the Elctoral College and 11--the minimum number of states that would need to pass the interstate compact in order to change how electoral college votes are determined. So far, as Raskin notes, Maryland has passed this compact and it carries 10 electoral votes. So to get to passage, the National Popular Vote plan would need the following states (and only the following states) to pass the compact:

California (55 electoral votes)
Texas (34)
New York (31)
Florida (27)
Pennsylvania (21)
Illinois (21)
Ohio (20)
Michigan (17)
Two of the three following states: Georgia (15)New Jersey (15) or North Carolina (15)
Plus any state besides Alaska, Delaware, District of Columbia, Montana, North Dakota, South Dakota, Vermont or Wyoming (all have only three electoral votes.

That is a total of 12 states (including Maryland), less than 1/4 of the states in the Union would determine who wins the eelction by some interstate compact, the workings of which itself is constitutionally suspect. Is that any more democratic the California's effort?

While I admire the efforts of the National Popular Vote Plan propenents in their effort to find a solution to our "Electoral College Problem" and its "undemocratic" nature, their solution is just as undemocratic, indeed less so, than the California alternative. With the national popular vote plan, the large population centers, like California, Texas, New York and Florida would continue to dominate the electoral battle. Instead of giving small states more of a say in the election, they would actually be marginalized further as candidates would spend more time in the big metropolitan areas or large swing states (Ohio, Florida and Pennsylvania anyone) trying to garner enough votes to win the popular vote. In fact, nothing will change.

The fact is, in a nation as politically divided as ours, the Electoral College is a safety valve, releasing some of the pressure of partisanship. While the electoral college may distort the results of an election, the solution proposed by the National Popular Vote plan actually distorts the functioning of our federal system. The legislative majority in a significant minority of states could trample the rights of the political minority in their states, enact into law a plan that would allow this small minority of states to determine the course of American political history.

The national popular vote is, likely, the proper way to elect a president and I think a good idea. However, such a change in our laws must be the progeny of a significant consensus that the system is broken and as we can see, we don't have that consensus. If a national popular vote plan is to be implemented let the proponents of the plan marshall the resources, financial and political, to pass a Constitutional amendment, 2/3 of Congress and 3/4 of the states. If the California ballot initiative passes, there could very well be enough of a sea change in the electorate's mindset that such an constitutional amendment might pass, and it might not.