The National Popular Vote?

Nevermind the hanging chad, butterfly ballets and Katherine Harris; the lasting legacy of the 2000 Presidential election is that it inspired Americans to take a good long look at the Electoral College, scratch their heads and wonder why we’ve got a system that can give the gold to a silver medalist. In 2006, a group of political scientists calling themselves the National Popular Vote (NPV) claimed to have come up with a Constitution-friendly solution and went public with their effort to reform the system, which they called the National Popular Vote Interstate Compact (NPVIC); an initiative that uses state power to skirt the Electoral College.

The way it works is as follows: State governments – instead of awarding all of their Electoral College votes to the candidate who wins that states’ popular vote (as is the case with every state but Maine and Nebraska) – would agree to allot them to the Presidential candidate who carries the nationwide popular vote. And this is well within each state’s rights, NPV claim, as the Constitution leaves it up to states to decide how to cast votes in the Electoral College.

Since 2006, the idea has gained momentum. Having passed through a variety of state legislatures, it will only come into effect when states representing a majority of Electoral College votes adopt the compact. Thus far, states representing 29 percent of Electoral College votes (including non-state DC) have signed onto the deal. Conversely, a number of states have rejected the proposal. In 2006, then California Governor Arnold Schwarzenegger terminated a National Popular Vote Bill passed by both houses, claiming that it contradicted the will of Californians and infringed upon states’ rights. But judging by opinion polls, the NPVIC has a broad non partisan appeal and might metastasize presidential politics in a matter of years, not decades. It isn’t entirely fanciful to hypothesize that a popular vote could decide the Presidential race when the 2016 campaign kicks off. And giving the NPVIC a boost will be former Senator and Law & Order star, Fred Thompson (R-TN), former Iowa Governor Chet Culver (D) and former Illinois Governor Jim Edgar (R), who have agreed to advocate on behalf of the initiative.

“The Founding Fathers gave us flexibility to adapt to changing times,” Thompson said at a press conference on May 12 at the National Press Club, where he, Culver, Edgar and other NPVIC spokespeople laid out a case for reform.

Currently presidential hopefuls mostly focus their energy on battleground states (98 percent of campaign ads in 2008 were run in a mere 15 states). States that are firmly in either the red or blue camp (California, New York, Texas) have been relegated to the status of cheerleaders and fundraisers. Edgar pointed out that the president should represent the whole country, “not just the battleground states.”

Not only does the current system this cause the residents of “Red” and “Blue” states to feel left out of the democratic process, but the effect in the policy realm is stark: Steel-tariffs, Thompson said, have been levied to woo voters in fractious Pennsylvania. Divided Florida, a newspaper in Connecticut said, was offered over a billion dollars for a high speed rail project when a similar sum would have been far more impactful and beneficial in the electorally predictable Northeast. On the other hand, some academics claim that Swing States don’t receive more discretionary spending than non-Battleground states [Menchaca; 2011 – pdf] [Larcinese, Snyder, Testa; 2006 – pdf]. But another policy shows that U.S. trade policy tends to look favorably upon industries in states where electoral votes are up for grabs [Muûls, Petropolou; 2006 – pdf].

Economic issues aside, abolishing the Electoral College might reinvigorate the democratic process. It’s no secret that voter participation in the US has fallen steadily over the past few decades. Culver, a high school teacher in his early days, said that his students would often question whether or not their vote would count. And this was in overrepresented Iowa. Making each vote in the country consequential in Presidential Elections might reverse this feeling of hopelessness.

Polls indicate that there is broad support for choosing the President on the basis of popular vote. In 2007, a poll conducted by The Washington Post (pdf – question 22) revealed that a majority of Republicans, Democrats and Independent voters supported choosing the President by popular vote. And, to highlight the appeal of a Presidential popular vote, both ThinkProgress and Andrew Breitbart’s media circus have fairly recently published pieces in favor of NPV.

In 2008, New York University Law Professor Michael Waldman wrote a feature for the Washington Monthly trumpeting the benefits of the NPVIC (before it was cool). At the time the piece was published, Maryland, New Jersey and Illinois had signed the deal. Since then, Hawaii (where the legislature overrode a governor’s veto), Washington, Massachusetts, Washington DC and Vermont have become signatories to the agreement.

As Waldman pointed out, the Electoral College is a vestige of one of our country’s more shameful institutions: the Founding Fathers wanted to create an electoral system based on proportionality that didn’t upset the slave states. Recently, Hendrik Hertzberg, writing for the New Yorker, similarly detailed how the Electoral College preserved slavery. In the words of James Madison, whose congressional diary Herzberg quoted from, a national popular presidential vote was shelved in favor of the Electoral College because “[t]he right of suffrage was much more diffusive in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes. The substitution of electors obviated this difficulty and seemed on the whole to be liable to the fewest objections.”

It is ironic then that some support the Electoral College because it supposedly wards off some theoretical “tyranny of the majority” – a bogeyman that so often strikes fear in the hearts of archconservatives.

In the same vein, the “states’ rights” and “preserve Federalism” arguments that defenders of the Electoral College employ take on an ugly dimension when considering the system’s origins in preserving slavery. Not only is “states’ rights” a logical fallacy when state legislatures are opting for a National Popular Vote scheme, but it harkens painful memories of states’ rights taking precedent over human rights. And a popular presidential vote would hardly signal the end of Federalism just because it would put Californians on equal footing with Alaskans, Rhode Islanders and voters from Wyoming in presidential elections. “One person, one vote” is a democratic principle, and equating states to people in the context of a nationwide election is unjust.

Still, the Electoral College has its supporters, like columnist George Will. In one column – ironically written a week before the Bush-Gore contest – Will vigorously defended the Electoral College, arguing that it is a unifying force, and that under a popular vote regime, Presidential candidates might stop campaigning all over the country in places like West Virginia in favor of big cities. But spare a thought for poor Barrow, Alaska, which has never played host to a candidate. And when was the last time a Presidential Candidate paid any heed to Providence, Rhode Island? Will fails to grasp that the Electoral College doesn’t spawn national campaigns, but rather campaigns concentrated in battleground states.

While most conservatives reject George Will’s take on the Electoral College, Republicans, according to the Washington Post poll, are twice as likely to reject a Presidential Popular Vote, even though roughly 60,000 votes in Ohio would have given John Kerry the Presidency in 2004, despite a popular vote lead of 3 million for George W. Bush (according to Diebold Election Solutions). The effort to reform the system, thus, might be especially tough, particularly if, as it has been argued, interstate compacts are subject to approval by Congress, despite the claimed lack of need for Constitutional reform.

Still, despite the recent gains of the NPVIC, election reform is far off the radar of many political strategists (“When you’re out of office,” Thompson said, “you take a broader view”) and the room at the National Press Center was far from capacity, with most journalists in the building gravitating towards an event centered on a study about the effects of a proposed ban on menthol cigarettes.

But if the electoral system remains intact, chances are the Bush/Gore standoff won’t be the last time the status quo produces a leader of dubious legitimacy. While a loser of the popular vote has only won a Presidential election four times – John Quincy Adams (1824); Rutherford B. Hayes (1876); Benjamin Harrison (1888), and, of course, Bush in 2000 – this amounts to 1 out of 14 elections producing a Loser-in-Chief.

Chances are your children will see this happen in their lifetime ceteris paribus. And for some, it won’t have been the first time.

Samuel Knight

Samuel Knight is a freelance journalist living in DC and a former intern at the Washington Monthly.