Posted on 04/04/2011 7:43:16 AM PDT by SmithL
Most people wrongly believe the presidential election system we have today is in the Constitution, and think that any change would need an amendment. But 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.
After days of debating and rejecting possible methods for selecting the President, the Founding Fathers at the Constitutional Convention left the entire matter to the states by only saying in the U.S. Constitution about presidential elections “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” That’s all the Constitution says about what we now call the Electoral College. 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 winner-take-all method is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. 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 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. Maine and Nebraska currently award electoral votes by congressional district — a reminder that an amendment to the U.S. Constitution is not required to change the way the President is elected.
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.
A “republican” form of government means that the voters do not make laws themselves but, instead, delegate the job to periodically elected officials (Congressmen, Senators, and the President). The United States has a “republican” form of government regardless of whether popular votes for presidential electors are tallied at the state-level (as has been the case in 48 states) or at district-level (as has been the case in Maine and Nebraska) or at 50-state-level (as under the National Popular Vote bill).
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 obscurely far down as Arlington, TX) is only 19% of the population of the United States.
Evidence as to how a nationwide presidential campaign would be run, can be found by examining the way presidential candidates campaign to win the electoral votes of closely divided battleground states, such as in Ohio and Florida, under the state-by-state winner-take-all methods. The big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami certainly did not receive all the attention or control the outcome in Ohio and Florida in 2000 and 2004.
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 California state-wide elections, candidates for governor or U.S. Senate don’t campaign just in Los Angeles and San Francisco, and those places don’t control the outcome (otherwise California wouldn’t have recently had Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger). A vote in rural Alpine county is just an important as a vote in Los Angeles. If Los Angeles cannot control statewide elections in California, it can hardly control a nationwide election.
In fact, Los Angeles, San Francisco, San Jose, and Oakland together cannot control a statewide election in California.
Similarly, Republicans dominate Texas politics without carrying big cities such as Dallas and Houston.
There are numerous other examples of Republicans who won races for governor and U.S. Senator in other states that have big cities (e.g., New York, Illinois, Michigan, Pennsylvania, and Massachusetts) without ever carrying the big cities of their respective states. It is certainly true that the biggest cities in those states typically vote Democratic. However, the suburbs, exurbs, small towns, and rural parts of the states often voted Republican. If big cities controlled the outcome of elections, the governors and U.S. Senators would be Democratic in virtually every state with a significant city.
Under a national popular vote, every vote everywhere will be equally important politically. There will be nothing special about a vote cast in a big city or big state. When every vote is equal, candidates of both parties will seek out voters in small, medium, and large towns throughout the states in order to win. A vote cast in a big city or state will be equal to a vote cast in a small state, town, or rural area.
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. In the 2012 election, pundits and campaign operatives agree already, that, at most, only 14 states and their voters will matter. Almost 75% of the country will be ignored —including 19 of the 22 lowest population and medium-small states, 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 elections.
Policies important to the citizens of ‘flyover’ states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.
The 11 most populous states contain 56% of the population of the United States. Under the current system, 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. Under a national popular vote a candidate would win the Presidency if 100% of the voters in the 11 biggest states voted for one candidate.
But the political reality is that the 11 largest states rarely agree on any political question. In terms of recent presidential elections, the 11 largest states include five “red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, 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.
Moreover, the notion that any candidate could win 100% of the vote in one group of states and 0% in another group of states is far-fetched. Indeed, among the 11 most populous states, the highest levels of popular support , hardly overwhelming, were found in the following seven non-battleground states:
* Texas (62% Republican),
* New York (59% Democratic),
* Georgia (58% Republican),
* North Carolina (56% Republican),
* Illinois (55% Democratic),
* California (55% Democratic), and
* New Jersey (53% Democratic).
In addition, the margins generated by the nation’s largest states are hardly overwhelming in relation to the 122,000,000 votes cast nationally. Among the 11 most populous states, the highest margins were the following seven non-battleground states:
* Texas — 1,691,267 Republican
* New York — 1,192,436 Democratic
* Georgia — 544,634 Republican
* North Carolina — 426,778 Republican
* Illinois — 513,342 Democratic
* California — 1,023,560 Democratic
* New Jersey — 211,826 Democratic
To put these numbers in perspective, Oklahoma (7 electoral votes) alone generated a margin of 455,000 “wasted” votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 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).
Dividing a state’s electoral votes by congressional district would magnify the worst features of the Electoral College system. What the country needs is a national popular vote to make every person’s vote equally important to presidential campaigns.
If the district approach were used nationally, it would be less fair and less accurately reflect the will of the people than the current system. In 2004, Bush won 50.7% of the popular vote, but 59% of the districts. Although Bush lost the national popular vote in 2000, he won 55% of the country’s congressional districts.
The district approach would not cause presidential candidates to campaign in a particular state or focus the candidates’ attention to issues of concern to the state. Under the 48 state-by-state winner-take-all laws(whether applied to either districts or states), candidates have no reason to campaign in districts or states where they are comfortably ahead or hopelessly behind. In North Carolina, for example, there are only 2 districts the 13th with a 5% spread and the 2nd with an 8% spread) where the presidential race is competitive. In California, the presidential race is competitive in only 3 of the state’s 53 districts. Nationwide, there are only 55 “battleground” districts that are competitive in presidential elections. Under the present deplorable 48 state-level winner-take-all system, two-thirds of the states (including California and Texas) are ignored in presidential elections; however, seven-eighths of the nation’s congressional districts would be ignored if a district-level winner-take-all system were used nationally.
Because there are generally more close votes on district levels than states as whole, district elections increase the opportunity for error. The larger the voting base, the less opportunity there is for an especially close vote.
Also, a second-place candidate could still win the White House without winning the national popular vote.
A national popular vote is the way to make every person’s vote equal and guarantee that the candidate who gets the most votes in all 50 states becomes President.
Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.
The U.S. Constitution provides:
“No state shall, without the consent of Congress,… enter into any agreement or compact with another state….”
Although this language may seem straight forward, the U.S. Supreme Court has method, in 1893 and again in 1978, that the Compacts Clause can “not be read literally.” In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:
“Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.
“The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta.”
Specifically, the Court’s 1893 ruling in Virginia v. Tennessee stated:
“Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”
The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
“The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”
The National Popular Vote compact would not “encroach upon or interfere with the just supremacy of the United States” because there is simply no federal power—much less federal supremacy—in the area of awarding of electoral votes in the first place.
Any state that enacts the proportional approach on its own would reduce its own influence. This was the most telling argument that caused Colorado voters to agree with Republican Governor Owens and to reject this proposal in November 2004 by a two-to-one margin.
If the proportional approach were implemented by a state, on its own,, it would have to allocate its electoral votes in whole numbers. If a current battleground state were to change its winner-take-all statute to a proportional method for awarding electoral votes, presidential candidates would pay less attention to that state because only one electoral vote would probably be at stake in the state.
If the whole-number proportional approach had been in use throughout the country in the nation’s closest recent presidential election (2000), it would not have awarded the most electoral votes to the candidate receiving the most popular votes nationwide. Instead, the result would have been a tie of 269–269 in the electoral vote, even though Al Gore led by 537,179 popular votes across the nation. The presidential election would have been thrown into Congress to decide and resulted in the election of the second-place candidate in terms of the national popular vote.
A system in which electoral votes are divided proportionally by state would not accurately reflect the nationwide popular vote and would not make every vote equal.
The current state-by-state winner-take-all system of awarding electoral votes maximizes the incentive and opportunity for fraud. A very few people can change the national outcome by changing a small number of votes in one closely divided battleground state.
The potential for political fraud and mischief is not uniquely associated with either the current system or a national popular vote. In fact, the current system magnifies the incentive for fraud and mischief in closely divided battleground states because all of a state’s electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state. 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.
Senator Birch Bayh (D–Indiana) summed up the concerns about possible fraud in a nationwide popular election for President in a Senate speech by saying in 1979, “one of the things we can do to limit fraud is to limit the benefits to be gained by fraud. Under a direct popular vote system, one fraudulent vote wins one vote in the return. In the electoral college system, one fraudulent vote could mean 45 electoral votes, 28 electoral votes.”
Hendrik Hertzberg wrote: “To steal the closest popular-vote election in American history, you’d have to steal more than a hundred thousand votes . . .To steal the closest electoral-vote election in American history, you’d have to steal around 500 votes, all in one state. . . .
For a national popular vote election to be as easy to switch as 2000, it would have to be two hundred times closer than the 1960 election—and, in popular-vote terms, forty times closer than 2000 itself.
Which, I ask you, is an easier mark for vote-stealers, the status quo or N.P.V.[National Popular Vote]? Which offers thieves a better shot at success for a smaller effort?”
Advance congressional consent is not the norm in the field of interstate compacts. Instead, Congress typically considers a compact only after the compact has been approved by the combination of states required to bring the compact into effect.
The occasions on which Congress has given advance consent to a compact are relatively rare.
In 1934, Congress consented in advance to interstate crime control compacts in the Crime Control Consent Act of 1934.
In 1910, Congress gave its consent in advance to four states (Illinois, Indiana, Michigan, and Wisconsin) to enter into an agreement with respect to the exercise of jurisdiction “over offenses arising out of the violation of the laws” of these states on the waters of Lake Michigan.
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