The last time I wrote about a nefarious and unconstitutional plan to kill the Electoral College was five years ago. At the time, the Utah politico pushing this plan was Howard Stephenson, my own State Senator. Howard seems to have moved on (or at least quieted down on the subject) but his mantle has been taken up, according to a report in politico.com, by Curt Bramble, from Senate District 16, Utah and Wasatch Counties. In the interim, Donald Trump has been elected with a minority of the popular vote, but since that (unfortunate) fact does not seem to have galvanized support for a Constitutional Amendment to abolish the Electoral College, Senator Bramble and his colleagues in other states would resort to sterner means to accomplish their ends.
Here is what is going on:
Something called the Institute for Research on Presidential Elections (hereinafter the Institute) is marketing a path around the Constitution, calling on the state legislatures to put the popular-vote winner in the White House. Senator Bramble is their spear-carrier in Utah.
How can this be done? Dispensing with that messy procedure known as a Constitutional Amendment, the Institute is assuring the state legislatures that something called the National Popular Vote Interstate Compact (hereinafter the Compact) will do the job. All the states have to do is require – by law – that their states’ electors vote for the winner of the national popular vote. To anticipate for a moment, that would mean that in last year’s presidential election, Utah’s six electoral votes would have been cast for Hillary Clinton, despite her almost unparalleled unpopularity in the Beehive State.
The state of play is as follows: Ten states and the District of Columbia, have joined the Compact. They represent 165 electoral votes. You will likely not be surprised to learn that all of those states are the Bluest of the Blue. (For those interested, they are: California, Washington, Illinois, New York, New Jersey, Vermont, Massachusetts, Maryland, Rhode Island, Delaware, and Hawaii. Along with D.C.) Another seven states are flirting with the idea (and some of them are reddish in tone, not counting Utah.
The Institute is not asking the states to take this step right now (tho I do not exactly see why not. If the goal is to assure the popular vote winner of a majority of the EC, why should Utah not take the plunge now? If Georgia, South Carolina, North Carolina – all of which are apparently considering the Compact – plus Utah, had cast their electoral votes for Hillary, she could today be insulting Kim Jong-un). Rather, the Compact will only go into effect when enough states have joined it to constitute a majority (270) of the Electoral College.
Now that you are up to speed, let’s proceed to an examination of the problems with this idea. They are both theoretical and practical.
- In the first place, what is this scheme supposed to be doing? Apparently, it is supposed to mimic, as closely as possible, a direct popular election of the president, without going through the Constitutional amendment process. Why would we want to do that? Is there any reason to think that direct election of the president is desirable? The Founders didn’t think so.Admittedly, the Electoral College has not operated as it was intended to do. The Founders’ original idea – that a “college” of well-informed and disinterested individuals would insulate the presidency from the great unwashed – has long since gone by the boards (pause here while I get out my handkerchief). But other arguments in favor of the EC were put forward at the ratifying conventions, and they resonate yet. One was that direct election of the president would lead to electoral concentration on the populous urban areas, leaving the rural areas out in the cold. A quick re-read of the list above shows that fear to be amply justified. We may be ill-served by Iowa’s preservation of the ethanol boondoggle, but that pales in comparison with the welfare boondoggle we would get when New York and California rule the roost.Even so, the EC as it has evolved still has much to recommend it:
a. It provides a slight electoral exaggeration to the impact of the smaller states as against the larger, and that is not to be given away lightly.
b. It makes it virtually mandatory that a candidate for president have an appeal beyond a narrow regional base. Under direct election of the president, the economies of scale in the mega media markets of the two coasts would eliminate any campaigning or electoral clout from the heartland. With the exception of Texas and the upper Midwest, the “flyover” states would indeed be flown over. Utah’s electoral weight would resemble that of Brooklyn, and I’ll give you three guesses where a candidate would spend time and money in that contest.
The 12 most populous states have enough votes to command a popular vote majority, and you can bet that that is where the campaigning will take place. (Hint: Utah is not one of them.)
c. Another effect is that, since EC majorities are usually much greater than popular vote majorities, they provide an illusion that a president has broader support than he actually does. While there is the “mandate” problem, there is also the benefit of an increased sense of legitimacy, and as I look around the world, I see that legitimacy is a problem worth worrying about.
d. The EC greatly reduces the problems of recounts. In almost all elections the question of a recount doesn’t even come up since even if a single state is closely divided, the switch of its Electoral College votes from one party to the other would not change the Electoral College outcome.
When, as in 2000, the switch of a few votes might affect the outcome, the recount is confined to one state (Florida, in this case). But if 2000 had been conducted under direct election procedures, there would have been recounts in every state. The popular vote difference was less than half a million votes. A few more votes from each precinct in the country would change the outcome. Under direct election (and this direct election-mimicking scheme), there would be an incentive to go look for them, even in Utah. Under the EC, there is not. Utah’s not going to switch no matter how many more Democrat votes you find in each precinct.
- Now consider the actual impact of this scheme as it might have worked out in 2016. Hillary Clinton won the popular vote against Trump by almost three million votes. Under this “reform,” the 38 electoral votes from Texas would have to have been cast for Clinton, though Trump won the state by 800,000 votes. Can you imagine the outcry from Republican voters in Central Texas? If you can’t, imagine the outcry from Republicans in Utah County when Hillary Clinton got their EC vote. It’s hard to envision anything more destabilizing, or de-legitimizing.
- Utah’s caucus system can now be categorized as “walking dead,” and while the Compact didn’t kill it, the philosophy behind it did. The Compact is a step toward a national direct election, which derives from the philosophical argument that direct democracy is superior to the kinds of buffering institutions put in place by the Framers. If a direct election of the president by the people is more desirable than the EC, by the same token direct selection of candidates by the people in open primaries is more desirable than the buffering caucuses.
Some of the points above have practical implications, but there are some other points. I often tell my students that what we are looking for is a system that “works.” For all its defects, the Electoral College has delivered a working government in every single election since the country was founded. That’s a pretty good track record and one that shouldn’t be lightly disregarded. Now let’s see how the Compact “reform” might work in practice.
- To begin with, when would we know that it had or hadn’t? In addition to the recount problem mentioned above, the Electors are chosen by the voters in November. In December they convene at the state capital and cast their ballots, which are sealed and sent to the President of the Senate (the Vice-President). In January he opens the ballots (in the presence of the Congress assembled) and they are counted. Only then would we know if the Electors have followed the state law.
- And what if they hadn’t? What is the penalty? Are they going to be taken out and shot for following the Constitution rather than state law? Under the Supremacy Clause, they are certainly going to win their court battle. In the meantime, uncertainty reigns.
- Incidentally, Utah already has on the books an unworkable variant of this, providing that in the event that an elector proves “faithless,” that elector shall immediately be removed and replaced by an alternate. But the timing problem remains. And what if the alternate does the same thing? Do we have to have another election and choose different electors?
Ironically, while current law seeks to punish faithless electors, this new Compact seeks to compel the electors to be faithless. Can’t we make up our minds here in Deseret?
Having taught political science for many years, and having lived through more than 15 presidential elections, I am as aware of the shortcomings of the Electoral College as anyone (tho as noted above, it does have its strengths). If we want to reduce the distortions inherent in the EC, there are far less disruptive steps we could take. For example:
- Eliminate the electors. This would require a constitutional amendment, but the physical electors really are an anachronism, performing a purely ministerial function. It would change nothing to provide that the winner of the popular vote, state by state, receives the number of electoral votes to which the state is entitled. Poof! No more “faithless” elector. I might mourn, but I already mourn the demise of the Founders’ ingenious workmanship, and pretty much no one else would.
- Eliminate the “winner-take-all” feature. This would not require a constitutional amendment, merely a state law. Two states (Nebraska and Maine) have already done this. In the last election, three of Maine’s electoral votes went to Clinton, one to Trump, and in 2008, four of Nebraska’s electoral votes were awarded to John McCain, one to Barack Obama.The law could allocate electors on the basis of representative districts, two for the Senate, state-wide, and one each for the legislative districts. That is how Maine and Nebraska do it. Or one could award electoral votes proportionally. In Utah, for example, the Democrats could get a proportion of our six electoral votes equal to their percentage of the popular vote. If they got 30%, they would get two electoral votes. Personally, I’d be willing to give the Ds two votes from Utah when I think of how many the Rs would get from California under such a system.The point is that such an arrangement would reduce the possibility of a misalignment between popular and EC majorities (or pluralities) to virtually zero. If that is a desirable step (which I don’t concede), then this is a far less cumbersome way to get there than the Compact.
- Follow the Constitution. By that, I mean that Compacters should mount an effort to amend the Constitution in line with its own provisions, rather than by this short circuit. The Framers of the Constitution gave us a mechanism for debating and adopting changes when we don’t like something. That method involves a national debate and the agreement of three-fourths of the states. It emphatically does not allow for the imposition of changes by as few as 12 states entering into an Interstate Compact, and ignoring the wishes of the other 38.
To date, the Institute has been able to generate formal support for the Compact only in liberal states. It would indeed be ironic if the break-through for this unconstitutional (not to say unwise) effort were to come in conservative Utah.