Identity Crisis

Just in time for the 2012 elections, a group called National Popular Vote (NPV) is pushing for fundamental changes to how the president of the United States is elected.

An interstate compact backed by a growing number of state legislatures, NPV is calling on states to change how they award their electoral votes. Rather than the current system, whereby a state’s electoral votes are awarded on a winner-take-all basis, under the NPV plan states would pledge their electoral votes to the winner of the national popular vote – even if that candidate did not win the majority vote in the state. For example, if Candidate B wins the popular vote in, say, California but Candidate A wins the popular vote nationally, California would be obligated to have its electors assigned to Candidate A.

So far, California, Hawaii, Washington, Illinois, Massachusetts, Maryland, New Jersey, Vermont and the District of Columbia have passed legislation signaling commitment to the NPV compact. NPV notes that these jurisdictions represent 132 electoral votes. These NPV states say they will activate their plan as soon as states possessing a majority of electoral votes (270 or more) adopt it.

NPV points to polls showing 70-percent support for the popular-vote plan. The plan has already been approved by 31 legislative chambers in 21 states. NPV also boasts bipartisan backing, with a masthead that includes former senators and former governors from both parties.

“The National Popular Vote bill would guarantee the presidency to the candidate who receives the most popular votes in the entire United States,” NPV declares. “The bill ensures that every vote, in every state, will matter in every presidential election.”
Critics, like Sen. Mitch McConnell, R-Ky., counter that NPV’s plan is “dangerous.” Calling it “the most important issue in America nobody’s talking about,” McConnell warns, “When the national popular vote total is the way the president is chosen, then every vote in America in every precinct in America would become the subject for endless litigation.”

To that point, it does seem that the current system tends to quarantine election-night confusion and chaos. It pays to recall that the disputed Florida election in 2000 spawned dozens of lawsuits, tying up courthouses from Miami and Tallahassee to Atlanta and Washington. What we tend to forget is that the outcomes were equally close in New Mexico, where then-Vice President Al Gore won by just 546 votes, or 0.06 percent; Wisconsin, where he won by 0.2 percent; Iowa, where he won by 0.3 percent; and Oregon, where he won by 0.4 percent. The recount was automatic in Florida due to the state’s election laws, while in the other states the trailing candidate must request a recount. Then-Gov. George W. Bush did not do that.

Such an election under the NPV system, McConnell worries, could invite the trailing candidate to challenge vote tallies in each and every precinct of each and every state. Just imagine an epidemic of Florida-style recounts spreading across the country, perhaps even delaying the inauguration. That would be a recipe for “a constitutional crisis,” McConnell warns, adding, “We’ve never had a situation where the president wasn’t sworn in by the date specified in the Constitution.”  

Another NPV opponent, the State Government Leadership Foundation (SGLF), points out that “state laws regarding voter eligibility would be deemed null and void under NPV. Under the Electoral College system, voters who are eligible in one state have no bearing on another state’s electoral votes. Under NPV, ineligible voters in one state will be on an equal level with eligible voters in another state.”

What Are We? That point about each state’s role in the presidential election process leads us to the heart of the matter, which is a simple question with profound implications: is the United States a federal republic of 50 states, or just a big democracy?
The founding fathers offered some guidance about this. “Each state, in ratifying the Constitution,” James Madison wrote in Federalist No. 39, “is considered as a sovereign body, independent of all others.” The states are at least “partly … distinct and coequal.” He explained that “election of the president is to be made by the states,” not by a national referendum.

The significance of each state is further underscored by the text of the 12th Amendment, ratified in 1804, which served to clarify the process of electing the president. If no candidate obtains a majority of electoral votes, “the House of Representatives shall choose immediately, by ballot, the president. But in choosing the president, the votes shall be taken by states.”

Again, the will and voice of each state was considered important to the founding fathers – so important that the system they created ensured that the election of the president would reflect what the states wanted. That explains why the presidential election is not so much a national election as 50 individual state elections (51, counting the District of Columbia). Underscoring the importance of each state, these elections are administered not by some national election agency, but rather by “sovereign” and “independent” bodies, to use Madison’s terms.

Thus, even when the Electoral College vote doesn’t reflect the national popular vote, it would seem that Madison and his peers would argue that it is not necessarily out of line with the “popular will.” That’s because the Electoral College was intended to reflect – and preserve – the importance of each state’s voice in choosing a president.

This system ensures a president with federal legitimacy, gained state by state. The alternative, a truly national election based purely on the popular vote tally, yields a president with national legitimacy, to be sure – but a kind that could come at the expense of federal legitimacy.

Consider, by way of example, these two kinds of political legitimacy in the context of the 2000 election. Gore could claim a mandate because he won more of the national popular vote (48.3 percent vs. 47.8 for Bush). Yet Bush could claim a mandate because he won 30 out of 50 states, equating to 60 percent of the country.

While on the topic of legitimacy, the Florida recount process – halted by the U.S. Supreme Court in December 2000 – left a question mark for some voters over the legitimacy of the final outcome. What was overlooked, or ignored, by many voters in the post-election acrimony is that a consortium of media outlets – including The Associated Press, The New York Times, The Washington Post, CNN, the St. Petersburg Times, The Wall Street Journal, Tribune Publishing and The Palm Beach Post – conducted an exhaustive round of re-recounting in March 2001. After its impartial review, the consortium concluded that if hand recounts had been carried out and completed in the manner prescribed by the Florida Supreme Court, Bush’s margin of victory would have grown from 537 to 1,665 votes. 

Media mantras notwithstanding, the Bush-Gore election was not unprecedented. In fact, it marked the fourth time in the nation’s history that the person with the largest number of popular votes didn’t win the electoral-vote tally. In 1876, Rutherford Hayes defeated Samuel Tilden despite the latter’s substantial popular-vote majority. With four states each presenting two sets of electors, neither candidate could reach the required electoral-vote majority. Congress then set up a commission to decide the election. The commissioners chose Hayes, who, perhaps not coincidentally, carried more states than Tilden (21-17).

Similarly, Benjamin Harrison, who lost the popular vote but won more states than Grover Cleveland (20-18), won the election on the strength of his Electoral College tally.

Of course, a candidate technically doesn’t even need an electoral majority to ascend to the presidency. In 1824, John Quincy Adams was elected president despite losing both the electoral vote and the popular vote. Since Andrew Jackson failed to amass the requisite electoral votes in the four-way race, the election was thrown to the House of Representatives (as prescribed by the 12th Amendment), where 13 state delegations voted for Adams and seven voted for Jackson.

Compromise. These examples underscore that NPV and others who view the Electoral College as an arcane institution in need of reform – or an anachronism to be discarded – have a legitimate case to make. But if they want to change the way America chooses its presidents, they need to do so through the constitutional process.

“The Electoral College process is part of the original design of the Constitution,” the National Archives and Records Administration (NARA) concludes. “It would be necessary to pass a constitutional amendment to change this system.”
NPV argues that its plan “is constitutional in that Article II, Section 1 of the Constitution gives states the exclusive power to award electoral votes as they see fit. The winner-take-all system isn’t mentioned, recommended or promoted anywhere in the Constitution, and there is no good reason to save it.”

While it’s true that the Constitution doesn’t require a winner-take-all system, Section 1 does require that electors be appointed by “each state,” strongly suggesting that electors reflect the will of the states they represent. The reality is that NPV’s alternative method of having states award their electoral votes based on the national popular-vote tally – with no regard or relation to the popular vote within each state – would render the Electoral College system meaningless, which is why the NPV plan amounts to a stealth encroachment on the Constitution. As SGLF observes, NPV aims “at amending the Constitution without an amendment.”

There is a happy medium – one that preserves the “sovereign” and “independent” voice of each state while more accurately reflecting the popular-vote tally. What’s known as the Congressional District Method allocates one electoral vote for each congressional district won by the presidential candidate, and two electoral votes based on the overall winner of the state’s popular vote. This method has been used in Maine since 1972 and Nebraska since 1996, according to NARA.

Under the winner-take-all method, even if the popular-vote margin is razor-thin in a state – for example, a difference of 1,665 votes in Florida – the candidate on top gets all of Florida’s 29 electoral votes. But under the Congressional District Method, if Candidate A wins the popular-vote tally in Florida and wins, say, 15 of the state’s 27 congressional districts, Candidate A would receive 17 electoral votes (one each for the 15 districts won, plus two based on the state’s overall vote tally). Candidate B would receive the remaining 12 electoral votes.

Under NPV’s proposed plan, no matter which candidate the majority of Florida voters chooses, all of their electoral votes would be awarded to the candidate who wins the national popular vote. That would effectively nullify the voice of Florida’s voters if they happened to vote for the candidate who didn’t have the most popular votes nationally.

The Congressional District Method would seem to be a fair compromise between the winner-take-all method (which has triggered a handful of electoral anomalies over the years) and NPV’s proposal (which would erase state lines and toss federalism out the window).

It’s ultimately up to the American people to decide what the United States is, and what it is not.

If they decide that the United States is just a democracy, run and ruled by a national majority, then state lines are little more than administrative formalities and NPV’s plan is the way to go.

If, on the other hand, Americans believe that the United States is still a federal republic of 50 states – a representative government with powers dispersed across states and between national and state levels – then NPV’s proposal would take the country in a dramatically different direction.

Alan W. Dowd is a contributing editor for The American Legion Magazine.