Doing an end-run around the Electoral College


Like most US presidential elections, the Electoral College structure means that those states that are seen as already sure to assign their electoral votes (EV) to one or other of the two major presidential candidates tend to be ignored, with all the attention focused on the so-called battleground states where the outcome is uncertain. In this election, those states are seen as Colorado, Florida, Iowa, Ohio, Nevada, New Hampshire, North Carolina, and Virginia. Mitt Romney is also throwing some money at Wisconsin since he hopes that since his running mate Paul Ryan is from that state, he might be able to nudge that from Democratic into battleground status.

Those nine states add up to 110 of the 535 electoral votes, or just 20% of the total. This means that roughly 80% of the nation’s votes will not be actively campaigned for. In addition to this being a disturbing distortion of democracy, this kind of campaigning increases the chances that what occurred in 2000, where one candidate received a nationwide majority of the popular vote while the other candidate got a majority in the Electoral College and thus became president, will increase. That is not good because it undermines the legitimacy of the result.

There have been calls for abolishing the Electoral College altogether but that would require a constitutional amendment.

There is an alternative strategy being pursued by some states that seems to bypass this need. Since each state is allowed to decide the basis by which it allocates its electoral votes, a group of them have formed what is called the National Popular Vote Interstate Compact where they agree to allocate all their electoral college votes to whoever wins the national popular vote, irrespective of who won their own state.

If states with 270 or more EVs pass such a law, in effect, the winner of the popular vote will be President. Currently eight states (Vermont, Massachusetts, New Jersey, Maryland, Illinois, California, Washington, and Hawaii) plus D.C. have joined the compact. It is pending in New York, Pennsylvania, and North Carolina. The compact only goes into effect when states with 270 EVs have signed up for it.

The states that have joined the NPVIC add up to 132 votes while the states where it is pending have 64.

You can be sure that if the 270 vote threshold is reached this compact will face a constitutional challenge on the basis of whether states can form such alliances and whether they can override the majority vote in their own states.

Comments

  1. David Marjanović says

    You can be sure that if the 270 vote threshold is reached this compact will face a constitutional challenge on the basis of whether states can form such alliances and whether they can override the majority vote in their own states.

    Why? There’s no constitutional regulation of how states choose their electors or whether they tell them who to vote for. They could send the Seven* Wisest Men In The Kingdom to DC and let them vote however they damn well pleased.

    Only the citizens of DC have a constitutional right (23rd Amendment) to vote for president.

    * In the cases of Oregon, Oklahoma or Connecticut.

  2. fastlane says

    The problem with this is that the most influential states will not want to sign on, and it makes it that much more difficult to get enough of the others to get on board. Although, I do agree that it is a good idea.

  3. eric says

    This means that roughly 80% of the nation’s votes will not be actively campaigned for. In addition to this being a disturbing distortion of democracy…

    I am not sure I like the popular system better, because it may push the candidates into more extreme positions. Under a popular system, someone like Romney has no need to move to the middle; it would be just as useful for him to pick up an extra birther vote in Texas as it would a moderate vote in Virginia or Ohio. The electoral college system forces the candidates to garner votes among a wider range of constituencies, whereas a popular vote does not; it makes raising the voter turnout for a narrow constituency a viable counter-strategy.

    As a third alternative, we could also break most States’ winner-take-all system, so that electoral college voters vote whichever way their district went. That’s a sort of ‘medium granularity’ system.

    All three have their pros and cons. There’s not going to be a ‘non-distorting’ system, only different distortions of an unreachable platonic ideal.

  4. Randomfactor says

    As a third alternative, we could also break most States’ winner-take-all system,

    That’s been proposed by Republicans in California, which shows the drawback. It would never be allowed in a state like Texas, which is a lock in the Republican column at present*. It was only proposed in California because of the relative ease with which you can buy access to the ballot for a dodgy proposition.

    *(For now, but changing–which puts a short time limit on “never” in that state at least.)

  5. kevinkirkpatrick says

    I’ve always taken issue with the notion “…where one candidate received a nationwide majority of the popular vote while the other candidate got a majority in the Electoral College and thus became president, will increase. That is not good because it undermines the legitimacy of the result.”

    I can’t stand people trumpeting “Gore won the popular vote in 2000” as if it were a significant point. The underlying flaw is obvious: Bush and Gore were trying to win the contest of “get the most EC votes”. Both adopted strategies to maximize the number of EC votes they’d receive. Bush got the most EC votes – he won. The flawed assumption people make is that if Bush and Gore had been working to maximize their popular vote, Gore would have won.

    There is no difference between, “Gore actually won in 2000 because he got more individual votes, even though Bush got more EC votes” and “The Cardinals actually beat the Braves last night because they got more hits, even though the Braves scored more runs.”

  6. Mano Singham says

    There are various constitutional issues that can be raised. One arises from Article 1, Section 10 that says “No state shall enter into any treaty, alliance, or confederation”. You can be sure that people will dig through the early documents to see what the intent of the founders was and if this compact circumvents that.

  7. sqlrob says

    Bad idea. Part of the point of the electoral college is to give smaller populations a larger voice. The popular vote plan just switches it to campaigning in places like LA and NYC and completely ignoring flyover country.

    I think I prefer the way Maine does it – electoral votes are assigned by district, not in the state block.

  8. lpetrich says

    There is possible further trouble. Some Republicans are now taking aim at it. The 2012 Republican Platform states

    We oppose the National Popular Vote Interstate Compact or any other scheme to abolish or distort the procedures of the Electoral College. We recognize that an unconstitutional effort to impose “national popular vote” would be a mortal threat to our federal system and a guarantee of corruption as every ballot box in every state would become a chance to steal the presidency.

    # states, # electoral votes, avg. +- stdev of percentage for Obama out of total votes
    Passed into law: 9 — 132 — 64 +- 5
    Passed 2 houses: 2 — 13 — 59 +- 7
    Passed 1 house: 10 — 98 — 57 +- 7
    Passed 1 committee: 10 — 65 — 44 +- 7
    Hearings: 11 — 91 — 48 +- 7
    Bills: 9 — 139 — 45 +- 7

    So the issue has already gotten politically polarized to some degree, with the more pro-Democratic states usually farther along than the more pro-Republican ones.

  9. chaos-engineer says

    The popular vote plan just switches it to campaigning in places like LA and NYC and completely ignoring flyover country.

    But right now flyover country, LA, and NYC are all being ignored. All of the focus is on the “purple states”, especially Ohio and Florida…Obama will be re-elected if he wins either of those two. (Or he could lose both of those states and still win if he gets two-out-of-three among Virginia, Iowa, and Wisconsin, but that’s a long shot – if he can’t hold Ohio or Florida, then he’ll be struggling in the other key states as well.)

    I think I prefer the way Maine does it – electoral votes are assigned by district, not in the state block.

    That just changes the focus to a different set of small regions. The electoral districts are heavily gerrymandered and tend to be either overwhelmingly Democratic or Republican. The campaigns would focus on the suburbs around a handful of big cities.

    If we went to a nationwide popular vote, then the parties might try to campaign everywhere. Obama can’t win Alabama, and Romney can’t win New York, but this way they have an incentive to fight over the undecided voters there.

  10. Paul Jarc says

    The underlying flaw is obvious: Bush and Gore were trying to win the contest of “get the most EC votes”.

    That is indeed the game they were playing, but they were not playing the game for its own sake. They were playing the game as a proxy for deciding who would run the country. So there’s nothing wrong with criticizing the electoral process as a bad choice of proxy. It’s true that we don’t know with certainty who would have won the popular vote if they had been trying to win that game instead, but we have some evidence. And that’s a separate issue from the question of which game we should make them play.

    “The Cardinals actually beat the Braves last night because they got more hits, even though the Braves scored more runs.”

    My first thought here was that in this case, the game is played for its own sake. It isn’t a proxy for anything else, so it would be meaningless to say it’s a bad choice of proxy. But that’s not quite right—it could apply to an amateur game, but a professional game is intended to provide entertainment for spectators (and thus income for ballparks and merchandisers), so you could also criticize it for failing to accomplish that goal. Maybe a different scoring system or other changes really would make the game more enjoyable to watch, and more profitable to sell tickets and merchandise for.

  11. bksea says

    I am generally a fan of the electoral college and have some random thoughts:

    1. It seems inappropriate to assume that the popular vote would be exactly the same if we threw out the electoral college. In heavily red/blue states, voters currently have a disincentive to vote because it won’t make much difference. This would likely change under a national popular vote leading to different results.

    2. I wonder if a national popular vote would give a strong advantage to candidates from large states. Vote counts in home states tend to skew and large states would have the highest impact in the national vote.

    3. Why doesn’t anyone complain about the Senate? That is a much less Democratic body. For example, California (38 million people) and Wyoming (0.6 million) get the same number of votes there. The 10 largest states have more than 50% of the US population but only 20% of the votes. If we want to jump on the pure democracy bandwagon, why don’t we start with the Senate?

  12. Brad says

    The point of the senate and the house not being determined the same way is a compromise between populous and nonpopulous states.

  13. Chiroptera says

    We Americans (from the US) have this weird notion that the best way to prevent the tyranny of the majority is to allow a minority to have their tyranny.

  14. Chiroptera says

    In 1787.

    I think that in 21st century we can say that the fears and circumstances of the 18th century delegates of the small states have either turned out to be unfounded (like the delegates from the larger states do not vote as a single bloc) or have been rendered moot (such as the states are no longer regarded as sovereign entities who have volunatily joined the Federationm).

    In my opinion, the US Senate, as a body where the representatives of a minority of the voters can veto legislation passed by the representatives of the majority of the votes, is an anachronism.

  15. Brad says

    Personally, I’m a fan of the tricameral legislature proposed near the end of The Moon is a Harsh Mistress

  16. M Groesbeck says

    How broad are the voter appeals now, though? On healthcare, both candidates are well to the right of the most popular option (single-payer). Both have have a history (past and present) of working against unions. (Hell, both parties screened a film at their conventions with the theme of “teachers’ unions are evil and are trying to hurt your children, so we must turn all power over to the CEOs”.) There is, effectively, no appeal to the left being made under the current system.

    (Of course, a popular-vote version might not help; the only way to really include some breadth would be to shift in the direction of a multi-party-supportive quasi-parliamentary system…)

  17. eric says

    Yes, doing so would have to use the same sort of system currently being used by the popular-vote-supporting states. It would have to be a voluntary agreement rather than a federal mandate, and the the signatory states would agree to enact the change only after the number of signatories reached a certain critical mass.

  18. eric says

    All of the focus is on the “purple states”, especially Ohio and Florida…
    …If we went to a nationwide popular vote, then the parties might try to campaign everywhere.

    No, that doesn’t follow at all. Right now they focus their campaigns where they think they can change the political calculus most effectively. In a popular vote, they’d behave exactly the same way. The specific geographical targets might shift a bit, sure, but the strategy of focusing campaiging on those areas of the country where the candidate can get ‘the most vote bang for the buck’ would not change.

    A democratic candidate might campaign in a highly democratic district with low turnout (and same for GOP candidates and districts). I see that as a bad thing, personally. But changing to a popular vote is not going to cause candidates to pay any attention to voters they think are ‘in the bag.’ Pretty much no change in system is going to do that. If you turn out consistently and vote consistently for one party, then the candidates are going to ignore you under any system you care to invent.

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