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Electoral College v National Popular Vote Movement by Doug Reed

2016_electoral_college.pngWhat I am going to do this evening is a quick review of the Electoral College and of the National Popular Vote and then a summary of the arguments for and against each one.

Why is this important? A movement to guarantee that the winner of the popular vote will be the President, known as The National Popular Vote Compact, has already been passed by 10 states and the District of Columbia. It even passed the Arizona House (sponsored by a Republican) in February of this year by a 40 to 16 majority (Ugenti and Lawrence voted no). It was sponsored in the Arizona Senate by Don Shooter and 9 other Republicans, as well as a number of Democrats, but died in committee. NPV is currently under consideration in a number of additional states.

Polls over the years show about three out of four people favor a national popular vote for President.  The election of George W Bush, who did not win the popular vote certainly incentivized the movement, and the results of the Trump/Clinton election will likely energize it even more. The movement is well funded (George Soros is one sponsor), and its arguments are well presented,  and very persuasive.

ELECTORAL COLLEGE 

This is a mechanism established by our Constitution for 

the indirect selection of our President and Vice President. Each state selects electors who are pledged to vote for their party’s candidate. The number of electors is equal to the total number of congressional representatives plus the number of senators. Arizona, for example, has nine representatives, plus two senators for a total of 11 electors. California has 55. The total number of electors is 538 (representing 435 congressmen, 100 senators, and 3 allocated to The District of Columbia). It takes an absolute majority of 270 to win. 

Back in 1787, the original intent of the Constitutional Convention was to have Congress elect the president and a majority of states agreed to this. However, a series of compromises  changed the basic framework of the Constitution such that representation of each state was proportional to the state’s population in the House and equal in the Senate.

One result of this created the presidential election system we have today: election by a group of “electors” from each state apportioned by the number of congressional districts plus two. Also, the original intent of the framers was that one elector would be chosen from each legislative district, and that elector would be free to exercise his judgement in voting for President-not pledged to one candidate. Alexander Hamilton went so far as to write “A small number of persons, selected by their fellow citizens from the general mass, will be most likely to possess the information and discernment to such complicated tasks.” This was a pretty elitist position, but was representative of the thinking at the time. 

It wasn’t long until some states got the idea that they could increase their clout in an election by pledging that all of their electors would vote for the same person, regardless of the votes in individual districts*. Eventually, almost all states began using what became known as the winner-take-all system that we have today except in Maine and Nebraska. 

The system of using the number of representatives plus the number of senators to determine each state’s total was a compromise demanded by the small states and the southern states in order to reduce the clout of the larger and northern states. The use of electors rather than the popular vote totals was an integral part of the system, and was designed, in part, to avoid what was called the tyranny of the majority. The founders wanted to empower democratic elements in the American system, but they feared the kind of a pure, unrestrained democracy that had brought down great republics of the past. And it fit well within the concept that the electors were better able than the masses to select an appropriate president. They equally feared the rule of an elite who was unresponsive to the will of the people.

Our framers were students of history, and concluded that societies which used direct democracy (or majority rule) were doomed to failure. The Electoral College was a compromise, neither fully democratic nor aristocratic.

NPV.jpgNATIONAL PUBLIC VOTE INTERSTATE COMPACT (NPV)

At its heart, the NPV is a method to change the way the President is elected without amending the Constitution. It is an agreement among a group of several states to award all of their electoral votes to to the candidate who wins the total popular vote of all of the states plus Washington DC.  The compact will become effective only when enough states have signed on to equal 270 electoral votes, thus guaranteeing that the popular vote winner will become the President. It has been adopted by 10 states and DC with a total of 165 electoral votes. These 10 states, (including California and New York) represent 61% of the votes needed to give the compact legal force. 

So we currently have a system in which the popular vote is not the determining factor in the presidential election and a proposed system which guarantees that the popular vote winner will be the President. What are the pluses and minuses of each system?

NPV PLUSES

Guarantees that winner of the national popular vote will win the presidency.
Increased voter turnout-more incentive for voters of both parties in states where the probable outcome is known. 
A large pool of votes reduce the impact of election fraud.  
Minimizes the impact of extreme weather events in an isolated state impacting the election result.
Less chance of recounts because of larger pool of votes (national rather than state totals).

NPV MINUSES

It can be viewed as an end run around the Constitution. The NPV needs only states representing a majority of the electoral votes while a constitutional amendment requires consent of 2/3 of Congress and ¾ of the states.
It shifts emphasis to urban issues in high population centers.

Candidates would have less incentive to focus on states with smaller populations and fewer urban areas. Additionally, once elected, a President would have a powerful incentive to govern in favor of high population centers.

Reduces the rights of the individual states and increases the rights of individuals in all states.

In states which do not sign, their electors become irrelevant (but not their popular vote)

What about recounts-close election-national recount? If you were frustrated with the lawyers and the courts in Bush v Gore, try a nationwide recount.

Concerns about what happens if a state withdraws from the NPV too close to the election and the resulting court battles.

Long delays in obtaining a final count and declaring a winner.

Incentives for fraud would be spread out over the entire nation. Currently, the incentive is limited to battleground states reducing the number of states of concern as opposed to nationwide concerns.

Could lead to a breakdown of the two party system. 

Would likely result in a nationwide campaign involving heavy and hysterical mass media campaigns.

ELECTORAL COLLEGE PLUSES

The system has worked to select the popular vote winner in all but four or five elections and is one major reason we have such a stable country.


Low population states have more electoral votes relative to their population because each state’s number of electors is two more than their population allocation would assign. This helps to avoid or diminish the “tyranny of the majority.”  When an election is closely contested, the Electoral College is exactly what is needed to insure that the minority’s voice is heard.

Designed so that a president has to receive support from a diverse array of people around the country.

Results in a definitive, timely decision. 

ELECTORAL COLLEGE MINUSES

Voters in uncontested states are irrelevant.

Can (and has) resulted in the winner not receiving the majority of the popular vote.

Forces candidates to focus on swing states and their unique issues.

Decreases voter turnout in states where the probable outcome is known.

There are also a number of legal issues facing the NPV. Among them:

Supporters believe that the NPV is legal under Article II of the U.S. Constitution-“Each State shall appoint, in such a manner as the Legislature thereof may direct, a Number of Electors…”

Detractors point to Article I, Section 10-“No State shall, without the consent of Congress…enter into any Agreement or Compact with another State…” However, the U.S. Supreme Court has held that congressional consent is necessary only when a compact encroaches on federal supremacy. The Constitution explicitly gives the power of casting electoral votes to the states, therefore federal supremacy is not at issue and congressional approval is not required.

Clearly, the states have the right to select their method of choosing electors. The key question seems to be do the states have the right to band together and cast their votes as a single unit.

There are two quotes which I will use to summarize.

Curtis Gans, writing in a Huffington Post blog was very succinct: 

The appeal of the NPV is the simplicity of its message. The danger of NPV is that it will undermine the complex and vital underpinnings of the American democracy.

Writing in a Heritage Foundation memorandum, Texas attorney Tara Ross summed up as follows:

America’s election systems have operated smoothly for more than 200 years because the Electoral College accomplishes its intended purposes. America’s presidential election process preserves federalism, prevents chaos, grants definitive electoral outcomes, and prevents tyrannical or unreasonable rule. The Founding Fathers created a stable, well-planned, and carefully designed system-and it works.

 

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published this page in Home 2016-12-13 15:10:55 -0700