Presidential elections shouldn’t be based on popular vote

The ups-and-downs of the Republican presidential primary campaign have made a lot of news lately, but not much has been written about a much smaller, yet equally important, campaign being waged this election year. It is called the National Popular Vote movement, and it aims to upend the very Constitutional system we use to elect our presidents.

It would do so by subverting the electoral college, which currently elects presidents to the outcome of the national popular vote. Already, states with 132 electoral votes have passed laws committing those votes to the winner of the national popular vote, and those laws will take effect as soon as they are adopted by enough states to equal 270 electoral votes – the number of votes needed to win the presidency.

We would still have the electoral college, but the electors would be bound to support the popular vote winner. It’s easy to understand why some people may be sympathetic with this plan; after all, why shouldn’t the president be elected by popular vote?

Well, there are several reasons.

First, deciding how we are going to elect our nation’s president outside of the national political process by trying to assemble a hodgepodge of state legislatures to tinker with our Constitution seems much more like an attempt at manipulating our federalist system than strengthening it. If the National Popular Vote succeeds, it would have the effect of amending the Constitution without having to withstand the scrutiny of a Constitutional amendment, which proponents know it wouldn’t survive.

The Constitution also says Congress must approve interstate agreements, meaning any agreement among the states on the allocation of electors without Congress’s approval would be vulnerable to a legal challenge.

Beyond National Popular Vote’s methods, its goal of electing presidents by popular vote could undermine our politics.

The electoral college forces candidates to campaign for states instead of individuals. This means that in the fall, when Barack Obama is running for re-election, he will have a much stronger incentive to try to win the votes of moderates and suburbanites in Virginia and North Carolina than to try to boost turnout in his hometown of Chicago. This prevents politicians from winning based on regional support and forces them to engage with a national electorate.

The process has a moderating impact on our politics, as the system pulls both parties towards the center and encourages voters to join with coalitions in advancing political objectives. A popular vote system would instead invite third-party candidates and factionalism, opening the possibility that a presidential candidate could win with just a plurality of the vote. Would it really be better to have a president elected with 35 percent of the vote against multiple candidates than elected through the electoral college with only 49 percent against one candidate?

The popular vote, on the other hand, would leave no distinction between a vote in New York and a vote in Indiana. It would naturally pull candidates to larger population centers. Instead of opening currently ignored red and blue states to a bustle of campaign activity, the popular vote would encourage campaigns to cater to the cities where they are already strong. Moderating influences would evaporate.

Instead, our politics would be broken into more factions, with more narrow interests in mind and, as a result, more extremism. Fringe candidates like Ron Paul and Ralph Nader stand little chance in our current system, although they can have a significant impact. But imagine a system in which countless other candidates like them could emerge, representing ever-smaller slices of the American public.

Finally, there is the issue of deciding the popular vote. America has never had a national election. We have had simultaneous elections in multiple states. Some of those states require voters to show identification at the polls, others don’t. Some states use voting machines at the polls, others use paper ballots. Some states require voters to be registered fourteen days before the election, others let voters register on election day. Which rules should we follow? Who decides which rules we should follow?

The American system of government is different. It is a work of genius designed for a country where power is dispersed between different branches of government at different levels of government. Having stood the test of time, there is no reason to alter it now.

Regardless of how well-meaning popular vote advocates may be, their prescription for American democracy fails to account for the many unintended consequences that could occur if we shake the foundations of the system that has produced all 44 U.S. presidents. Surely they weren’t all that bad.

 

Tray Smith is the special projects editor of The Crimson White.

  • mvy

    The
    Electoral College is
    now the set of dedicated party activists  who vote as rubberstamps for presidential
    candidates.  In the current presidential
    election system, 48 states award all of their electors to the winners of their
    state.

     The Founding Fathers in the
    Constitution did not require states to allow their citizens to vote for
    president, much less award all their electoral votes based upon the vote of
    their citizens. 

    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, were 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 for selecting presidential electors, the Founding Fathers left the
    choice of method exclusively to the states 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. Maine and Nebraska do not use the
    winner-take-all method– 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. The
    abnormal process is to go outside
    the Constitution, and amend it. 

  • mvy

    With the Electoral College, and federalism, the Founding Fathers meant to empower the states to pursue their own interest within the confines of the Constitution. The National Popular Vote is an exercise of that power, not an attack upon it.

    The National Popular Vote bill preserves the Electoral College and state control of elections. 
    It changes the way electoral votes are awarded in the Electoral College.  

    The Founding Fathers in the U.S. Constitution permit states to conduct elections in varied ways.  The National Popular Vote compact is patterned directly after existing federal law and preserves state control of elections.

    Every vote would be included in the state counts and national count. The candidate with the most popular votes in all 50 states and DC would get the 270+ Electoral College votes from the enacting states.  That majority of Electoral College votes guarantees the candidate with the most popular votes in all 50 states and DC wins the presidency.

    The current state-by-state winner-take-all method of awarding electoral votes (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, ensures that the candidates, after the primaries, in 2012 will not reach out to about 76% of the states and their voters. Alabama is ignored. 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. 

     More than 2/3rds of the states and people have been just spectators to the presidential elections, like Alabama. That’s more than 85 million voters.

     Policies important to the citizens of ‘flyover’ states, like Alabama, are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

    States have the responsibility and power to make all of their voters relevant in every presidential election and beyond.

     The Founding Fathers left the choice of method for selecting presidential electors exclusively to the states by 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.”

    Federalism concerns the allocation of power between state governments and the national
    government.  The National Popular Vote bill concerns how votes are tallied, not how much
    power state governments possess relative to the national government.  The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, or national lines (as with the National Popular Vote).

  • mvy

    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.

  • mvy

    The current state-by-state
    winner-take-all system ensures that the candidates do not reach out to all of
    the states and voters.  In 2004, candidates
    concentrated over two-thirds of their money and campaign visits in five states;
    over 80% in nine states; and over 99% of their money in 16 states.  In 2008, candidates concentrated over
    two-thirds of their campaign events and ad money in just   six states, and 98% in just 15 states.

     

    The
    current state-by-state winner-take-all system encourages regional
    candidates.  A third-party candidate has
    51 separate opportunities to shop around for states that he or she can win or
    affect the results. Minor-party candidates have significantly affected the
    outcome in six (40%) of the 15 presidential elections in the past 60 years
    (namely the 1948, 1968, 1980, 1992, 1996, and 2000 presidential
    elections).   Candidates such as John Anderson (1980), Ross Perot (1992 and 1996), and Ralph Nader
    (2000) did not win a plurality of the popular vote in any state, but managed to
    affect the outcome by switching electoral votes in numerous particular states.
    Extremist candidacies as Strom Thurmond and George Wallace won a
    substantial number of electoral votes in numerous states.

     

    If an Electoral College type of arrangement were
    essential for avoiding a
    proliferation of candidates and people being elected with low percentages of
    the vote, we should see evidence of these conjectured apocalyptic outcomes in
    elections that do not employ such an arrangement.  In elections in which the winner is the
    candidate receiving the most votes throughout the entire jurisdiction served by
    that office, historical evidence shows that there is no massive proliferation
    of third-party candidates and candidates do not win with small percentages. For
    example, in 905 elections for governor in the last 60 years, the winning
    candidate received more than 50% of the vote in over 91% of the elections. The
    winning candidate received more than 45% of the vote in 98% of the elections.
    The winning candidate received more than 40% of the vote in 99% of the
    elections. No winning candidate received less
    than 35% of the popular vote.

                          

    Since 1824 there have been
    16 presidential elections in which a candidate was elected or reelected without
    gaining a majority of the popular vote.– 
    including Lincoln (1860), Wilson (1912, and 1916), Truman (1948), Kennedy
    (1960), Nixon (1968), and Clinton (1992 and 1996).

     

    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 used a “big city”
    approach would not likely win the national popular vote. Candidates would 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.

  • mvy

    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. Suburbs and exurbs often vote
    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.

    A nationwide presidential
    campaign, with every vote equal, would be run the way presidential candidates
    campaign to win the electoral votes of closely divided battleground states, such
    as 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 do not receive all the attention or
    control the outcome in Ohio and Florida.

    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 knows. When and where every vote is
    equal, a campaign must be run everywhere.

    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.

     

    The National Popular Vote
    bill would not change the need for candidates to build a winning coalition
    across demographics. Candidates would 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 Pennsylvania.

    • Anonymous

      Well, with the way things are now, it’s the 12 or so “swing states” that get all the candidates attention. Is this somehow better?

  • mvy

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%,, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%. Americans believe that the candidate who receives the most votes should
    win.

    Most Americans don’t care whether their presidential candidate wins or loses in their state. . . they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was directly and equally counted and mattered to their candidate.  Most Americans think it’s wrong for the candidate with the most popular votes to lose. We don’t allow this in any other election in our representative republic.

    The bill has passed 31 state legislative chambers in 21 small, medium-small, medium, and large states. The bill has been enacted by 9 jurisdictions possessing 132 electoral votes – 49% of the 270 necessary to bring the law into effect.

    NationalPopularVote

    Follow National Popular Vote on Facebook via nationalpopularvoteinc

  • http://twitter.com/cruisehall93 Cruise Hall

    Check out Federalist 68.

  • Anonymous

    I couldn’t possibly disagree more with the writer of this column. The presidency is the only office that is filled by a truly national election. It should be decided by a straight-up national vote. Period. Any system that can award the presidency to a candidate who actually received fewer votes than his/her opponent is bogus. The electoral college is an anachronism and should be abolished, the sooner the better. 

    Imagine for a second that the governorship of your own state was determined not by a direct popular vote of your state’s residents but by awarding electoral votes to the winner of each county with the number of electoral votes assigned to each county determined by its population. What would you think of a system like that? You’d think it was patently ridiculous, and you would be right. So is the electoral college.  

    Another disadvantage of the electoral college is that it depresses voter turnout. I live in Texas, where the Republican candidate is guaranteed to win. What is the incentive for me to turn out and vote? The same would be true if I lived in a heavily Democratic state like New York. But if the outcome of the election were determined by a direct national vote, then all of a sudden I feel a lot more compelled to add my vote to the mix, as do the residents of the other 38 “non-swing” states.

  • http://profile.yahoo.com/IR3W6H6XT5YGBRFJFIWXZQSSLE Anonymous

    I have often suspected and believed that the Electoral College was an anti-democratic institution set up to serve the entrenched interests at the expense of the marginalized and powerless. Your editorial underscores this idea. If I understand your arguments correctly, central to your point is that the Electoral College is good because it’s a “moderating” influence. That it gets rid of “extremist” views and allows for more broad based support. Well that’s all well and good, but doesn’t that argument smack just a bit too much of authoritarianism? I mean, there are people out there in America who don’t like either political party. What about those people? What about the people who feel that neither of the two candidates in an election represents their views or interests? You are essentially saying too bad to these people, you don’t have a choice. Sure, maybe a fringe candidate might have some views that a majority of people don’t agree with, but if that’s the case then most people won’t vote for them. Our First Amendment ideal is that no matter how much we disagree with a view, it has a right to be expressed by someone who believes it, and its merits can be decided by the people. But you are instead arguing that such views are too extreme to be allowed in a Presidential election. I guess free speech is acceptable only when the stakes are low. 

  • Johnston F. Williams

    First, in 2000 when Bush’s lawyers went to the US Supreme Court instead of letting the
    Florida state supreme court rule on the presidential election in Florida, they screwed the idea that we have a federal system that respects states’ rights. Having said that,
    our political systems needs major reform: true campaign finance reform limiting the
    amount of money an individual can spent on an election and abolishing spending by
    corporations and other legal entities; requiring all legislative districts to be not only
    equal in population but compact geographically, not gerrymandered; abolishing all
    caucuses and primaries in favor of an open, national primary without party designations
    with the top two vote winners facing each other in a general election. Jon Huntsman
    who was the most qualified Republican running in 2008 could not get to first base in
    a closed Republican primary controlled by the tea party. As for the electoral college,
    abolish the electors but not the electoral votes, award the electoral votes based on
    the percentage of votes a candidate gets in a state, for instance if Tennessee voted
    70 percent for one candidate and 30 percent for the other candidate, then Tennessee’s
    electoral votes would be awarded the same way.