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CA Makes End Run on Electoral College
AUG. 11, 2011 By KATY GRIMES Adding one more state to the anti-Electoral College scorecard, Gov. Jerry Brown just signed the National Popular Vote bill. AB 459, by Assemblyman Jerry Hill, D-San Mateo, joins California’s 55 electoral votes to the National Popular Vote Interstate Compact.
The NPV is a movement attempting to replace the Electoral College rules system currently governing presidential elections in individual states with rules guaranteeing the election of the national popular vote winner. But the NPV movement is not pushing for a constitutional amendment, which some argue would be the only proper way to change the system. “The National Popular Vote bill would guarantee the presidency to the candidate who receives the most popular votes in the entire United States,” the NPV website states. ”The bill preserves the Electoral College, while ensuring that every vote in every state will matter in every presidential election.” The NPV campaign assumes that there is widespread belief among voters that only swing states matter under the Electoral College system during a presidential election, and that only a popular vote system will ensure that every vote matters in presidential elections. The notion that only swing states matter in presidential elections may be one of the strongest themes driving the NPV movement. But, “Constitutionalist observers think it may actually have exactly the opposite effect,” wrote Bruce Walker in The New American. “Republican nominees, for example, could campaign to build up huge majorities in the rapidly growing South and Southwest, planning to win either the electoral votes in those states or enough votes in those states so that the national popular vote was Republican — thus swinging California’s electoral votes to the Republican, which would doubtless also swing the presidential election.” With California joining the NPV team with passage of AB 459, as of August 2011 eight states and the District of Columbia now have 132 electoral votes of the 270 needed for the compact to take effect. And the push is on in the remaining 42 states. Eliminating the Electoral CollegeOpponents to the NPV movement say the real goal is to eventually eliminate the Electoral College altogether. Once Americans are used to thinking of the presidential election more as a popular vote contest, then the NPV itself would be displaced in favor a constitutional amendment eliminating the Electoral College entirely in favor of a purely popular vote. “An honest assessment of American history shows that no state is permanently ‘safe’ or ‘swing,’ wrote Tara Ross, author of Enlightened Democracy: The Case for the Electoral College. ”California is often viewed as irreversibly Democratic, but Republican candidates such as George H. W. Bush, Ronald Reagan, Richard Nixon, and Gerald Ford might disagree. Each won the state.” And in a white paper for the Federalist Society, Ross argued that even with criticism of the Electoral College, the benefits outweigh the disadvantages and NPV is a very risky change that America should work hard to avoid. “The current presidential election process is a unique blend of federalist and democratic principals,” Ross wrote. Ross argued that even with local election laws dictating how elections are held, only one set of national laws governs the nation’s elections and should be preserved. But all of that could change if the NPV movement is put into place. Different states have differing recount criteria and triggers. “These differences can and will cause many problems,” said Ross. Among the anticipated problems would be 51 different recount processes, which Ross said the NPV movement brushes off as insignificant. “It is not safe to assume that recounts will be few and far between with a national popular vote system in place,” Ross wrote. Another concern is consistency. Some states already allow felons to vote. After the 2000 presidential election, when officials learned just how close an election can be, a push has been taking place to allow felons, no longer in prison, to vote. Since 2003, at least 12 states have loosened voting laws on felons, significantly increasing the numbers of voters in some states. Flyover Country WastelandBut most opponents say that the NPV movement will merely lead to a different set of voter preferences holding more sway. Instead of having swing states and safe states, many predict that the divide will be urban versus rural. In a Wall Street Journal op-ed, Pierre S. du Pont, IV, a former governor of Delaware, wrote that the NPV project is an urban power grab that would shift politics entirely to urban issues in high-population states. Flyover country could become an even bigger voter wasteland according to some, as presidential candidates would focus attention on only the largest cities and most concentrated media markets. Instead of having to build a broad-based coalition, candidates would be rewarded richly and more easily by focusing intensely on the largest voter populations, then running up the score in the traditionally safe states. Equally importantly, opponents predict there will be constitutional challenges and litigation. They add that the healthiest process for introducing the popular vote changes would only be as a constitutional amendment, allowing a national discussion and the education of America’s voters. National Popular Vote bills have been passed in: District of Columbia: 3 electoral votes, Hawaii: 4 electoral votes Illinois: 20 electoral votes Maryland: 10 electoral votes Massachusetts: 11 electoral votes New Jersey: 14 electoral votes Washington: 12 electoral votes Vermont: 3 electoral votes California: 55 electoral votes
Tags: California, Constitution, Democrats, election, Electoral College, Jerry Brown, Katy Grimes, legislature, Republicans Comments(8) |
May 23, 2012
The U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II). The fact is that the Founding Fathers and the U.S. Constitution permits states to conduct elections in varied ways. The National Popular Vote compact is patterned directly after existing federal law and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President.
Recounts are far more likely in the current system of state-by-state winner-take-all methods.
The possibility of recounts should not even be a consideration in debating the merits of a national popular vote. No one has ever suggested that the possibility of a recount constitutes a valid reason why state governors or U.S. Senators, for example, should not be elected by a popular vote.
The question of recounts comes to mind in connection with presidential elections only because the current system so frequently creates artificial crises and unnecessary disputes.
A nationwide recount would not happen. We do and would vote state by state. Each state manages its own election and recount. The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires.
Given that there is a recount only once in about 160 statewide elections, and given there is a presidential election once every four years, one would expect a recount about once in 640 years under the National Popular Vote approach. The actual probability of a close national election would be even less than that because recounts are less likely with larger pools of votes.
The average change in the margin of victory as a result of a statewide recount was a mere 296 votes in a 10-year study of 2,884 elections.
No recount would have been warranted in any of the nation’s 56 previous presidential elections if the outcome had been based on the nationwide count.
The 2000 presidential election was an artificial crisis created because of Bush’s lead of 537 popular votes in Florida. Gore’s nationwide lead was 537,179 popular votes (1,000 times larger). Given the miniscule number of votes that are changed by a typical statewide recount (averaging only 274 votes), no one would have requested a recount or disputed the results in 2000 if the national popular vote had controlled the outcome. Indeed, no one (except perhaps almanac writers and trivia buffs) would have cared that one of the candidates happened to have a 537-vote margin in Florida.
The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December. Under both the current system and the National Popular Vote approach, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets.
Now with state-by-state winner-take-all laws presidential elections ignore 12 of the 13 lowest population states (3-4 electoral votes), that are almost invariably non-competitive, and ignored, in presidential elections. Six regularly vote Republican (Alaska, Idaho, Montana, Wyoming, North Dakota, and South Dakota), and six regularly vote Democratic (Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC) in presidential elections.
Support for a national popular vote is strong in every smallest state surveyed in recent polls among Republican voters, Democratic voters, and independent voters, as well as every demographic group. Support in smaller states (3 to 5 electoral votes): Alaska — 70%, DC — 76%, Delaware –75%, Idaho – 77%, Maine — 77%, Montana – 72%, Nebraska — 74%, New Hampshire –69%, Nevada — 72%, New Mexico — 76%, Oklahoma – 81%, Rhode Island — 74%, South Dakota – 71%, Utah – 70%, Vermont — 75%, and West Virginia – 81%, and Wyoming – 69%.
Nine state legislative chambers in the lowest population states have passed the National Popular Vote bill. It has been enacted by the District of Columbia, Hawaii, and Vermont.
None of the 10 most rural states (VT, ME, WV, MS, SD, AR, MT, ND, AL, and KY) is a battleground state.
The current state-by-state winner-take-all method of awarding electoral votes does not enhance the influence of rural states, because the most rural states are not battleground states.
Under the current system, the 11 most populous states contain 56% of the population of the United States, and a candidate could win the Presidency by winning a mere 51% of the vote in just these 11 biggest states — that is, a mere 26% of the nation’s votes.
With National Popular Vote, big states that are just about as closely divided as the rest of the country, would not get all of the candidates’ attention. In recent presidential elections, the 11 largest states have been split — five “red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). Among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).
With National Popular Vote, big cities would not get all of candidates’ attention, much less control the outcome. The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities (going as far down as Arlington, TX) is only 19% of the population of the United States. A “big city” only campaign would not win.
Suburbs and exurbs often vote Republican.
Evidence as to how a nationwide presidential campaign would be run can be found by examining the way presidential candidates currently campaign inside battleground states. Inside Ohio or Florida, the big cities do not receive all the attention. And, the cities of Ohio and Florida certainly do not control the outcome in those states. Because every vote is equal inside Ohio or Florida, presidential candidates avidly seek out voters in small, medium, and large towns. The itineraries of presidential candidates in battleground states (and their allocation of other campaign resources in battleground states) reflect the political reality that every gubernatorial or senatorial candidate in Ohio and Florida already knows–namely that when every vote is equal, the campaign must be run in every part of the state.
Even in blue states with the biggest cities, urban voters don’t control statewide elections, so they can hardly control a national election. In California state-wide elections, candidates for governor or U.S. Senate don’t campaign just in Los Angeles and San Francisco, and there have recently been Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger. Just as with a national vote, a vote in rural Alpine county is just an important as a vote in Los Angeles.
The main media at the moment, namely TV, costs much more per impression in big cities than in smaller towns and rural area. So, if you just looked at TV, candidates get more bang for the buck in smaller towns and rural areas.
If the National Popular Vote bill were to become law, it would not change the need for candidates to build a winning coalition across demographics. Any candidate who yielded, for example, the 21% of Americans who live in rural areas in favor of a “big city” approach would not likely win the national popular vote. Candidates would still have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as voters in Ohio.
With National Popular Vote, every vote, everywhere, would be politically relevant and equal in presidential elections. Wining states would not be the goal. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.
The presidential election system we have today is not in the Constitution, and enacting National Popular Vote would not need an amendment. State-by-state winner-take-all laws to award Electoral College votes, are an example of state laws eventually enacted by states, using their exclusive power to do so, AFTER the Founding Fathers wrote the Constitution, Now our current system can be changed by state laws again.
Unable to agree on any particular method, the Founding Fathers left the choice of method for selecting presidential electors exclusively to the states by adopting the language contained in section 1 of Article II of the U.S. Constitution– “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”
The constitution does not prohibit any of the methods that were debated and rejected. Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation’s first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century.
Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.
In 1789, in the nation’s first election, the people had no vote for President in most states, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.
The current 48 state-by-state winner-take-all method (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in a particular state) is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. It is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method.
The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state’s electoral votes.
As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 of the 50 states. States can, and frequently have, changed their method of awarding electoral votes over the years.
The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.
The current system of electing the president ensures that the candidates, after the primaries, do not reach out to all of the states and their voters. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind. The reason for this is the state-by-state winner-take-all method (not mentioned in the U.S. Constitution, but since enacted by 48 states), under which all of a state’s electoral votes are awarded to the candidate who gets the most votes in each separate state.
Presidential candidates concentrate their attention on only a handful of closely divided “battleground” states and their voters. There is no incentive for them to bother to care about the majority of states where they are hopelessly behind or safely ahead to win. In the 2012 election, pundits and campaign operatives agree already, that, at most, only 14 states and their voters will matter. None of the 10 most rural states will matter, as usual. Almost 75% of the country will be ignored –including 19 of the 22 lowest population and medium-small states, and 17 medium and big states like CA, GA, NY, and TX. This will be more obscene than the 2008 campaign, when candidates concentrated over 2/3rds of their campaign events and ad money in just 6 states, and 98% in just 15 states (CO, FL, IN, IA, MI, MN, MO, NV, NH, NM, NC, OH, PA, VA, and WI). Over half (57%) of the events were in just 4 states (OH, FL, PA, and VA). In 2004, candidates concentrated over 2/3rds of their money and campaign visits in 5 states; over 80% in 9 states; and over 99% of their money in 16 states.
2/3rds of the states and people have been merely spectators to the presidential election. That’s more than 85 million voters ignored.
Policies important to the citizens of ‘flyover’ states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.
National Popular Vote assures that every vote is equal and that every voter will matter in every state in every presidential election, as in virtually every other election in the country.
Hey Toto get your own blog.
The State Legislatures may at any time may resume their powers to determine the method select electors no matter what process they mave have had in place on a given election day (see the U.S. Supreme Court decision in Bush vs. Gore). This means that they can (and probably would) renege upon the national popular vote outcome if and when it suits them (like when the people of a state voted AGAINST the NPV winner). So, there is no guarantee that the winner of the national popular vote would be awarded the electors for a state. All that exists is a scam to try to convince certain states to vote for a President against the popular will of their state.
The bill says: “Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”
Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void. Such an attempt would also violate existing federal law. Compliance would be enforced by Federal court action
The National Popular Vote compact is, first of all, a state law. It is a state law that would govern the manner of choosing presidential electors. A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all method that is currently the law in 48 states.
There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.
An interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.
Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.