Last week, Maryland passed a law that would give its Electoral votes to the winner of the national popular vote if states representing a majority of the Electoral College do the same. The idea, which is backed by about 300+ state legislators who have introduced the law in 47 states, is to make presidential campaigns (and, hopefully, presidents) care more about the concerns of “blue” and “red” states, and not just to swing states. CommonCause has done a lot work on this.
In Massachusetts, the bill is backed here by Senators Joan Menard and Robert Havern and Representative Marty Walsh and Charlie Murphy, along with 24 co-sponsors. Because the bill only goes into effect if states representing a majority of the country pass it, it does not call for unilateral disarmament on the part of any state.
There’s lots of information available on this, and voices pro and con. Should we support this?
Technorati Tags: voting, democracy
Should America Dump the Electoral College? Maryland says Yes
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Yes, America should dump the electoral college.
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Long answer is, that this Maryland proposal is so convoluted that it isn’t even a prophylactic.
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Longer answer is, that you aren’t going to get rid of the electoral college. About six months ago, I did a quick calculation. In order to get a constitutional amendment (which would be required) to eliminate the electoral college, you would need the legislatures of 3/4 of the states to ratify the amendment required to do so. The quick calculation showed that something like a majority (more than 50%) of the states (if memory serves) have a minority of the population. With statistics like that, you aren’t going to get a constitutional amendment ratified anytime soon, even in the unlikely event that it were to be sent to the states by congress.
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To put it succinctly, you’re screwed. You’ll continue to be run by states that have more cows and corn stalks than people.
The beauty of the Maryland proposal is that it does not require a Constitutional amendment. If the non-cow/corn states band together, they could render the Electoral College irrelevant.
Find out how many “small” states are required to achieve a majority of the EC. IIRC, it is less than half, regardless of population, because each state’s representation in the EC is enhanced by the number of senators it has, and the number is set regardless of its population.
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The point that I will make is the following. From the post
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Last week, Maryland passed a law that would give its Electoral votes to the winner of the national popular vote if states representing a majority of the Electoral College do the same.
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Now, that’s a big “if” isn’t it? And, aside from the fact that the Constitution gives the state legislatures the final authority in selecting electors anyway*, why should anyone believe that this proposal is going to amount to a hill of beans.
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I guess that the Maryland legislature doesn’t have anything more to do than to tilt at windmills. And, yes, I am being very sarcastic.
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*As we saw from the 2000 election in FL, when the FL legislature was prepared to select a slate of electors on its own. Nice? No, Constitutiona? Yes.
I believe that the bill is also close to passing in California, which would put a big chunk on the table.
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I think it might be a positive move if it works out, because it will create an effective national popular election, but will make the push for a constitutional change to set down a much better standard to take the place of this mish-mash.
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Personally, I think the Nixon idea of a national popular vote, with a run-off election if no candidate gets 40%, is a good place to start.
The 11 biggest states constitute a majority of the electoral college. The reason that this method works better than a Constitutional amendment is because a minority of state legislatures can make it happen.
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And of course it’s a “big if”. Without that clause, Maryland basically forfiets their electoral votes.
…I apologize if I might have sounded a bit terse in the way that I asked the question. Doing Internet searches is, for me over here in Germany, more than a bit expensive. I would have done the research myself if I was in the US.
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As to the merits of the proposal, it cannot be denied that there is the “big if.” And it cannot be denied the fact that the US Constitution authorizes the state legislatures to select the states’ slate of electors. That last has never been changed, and the state legislatures can select the slate of electors on a moment’s notice. So what, other than feeling good, does this kind of proposal really mean?
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Suppose that Massachusetts has such a law in 2008. If, in the 2008 election, the majority of people, cows and corn stalks, vote for a Republican for president, and a significant majority of the voters in Massachusetts vote for the Democrat, do you really believe that the Massachusetts state legislature would not weigh in and select an electoral slate that reflects the majority vote in Massachusetts? (Remember, this is just a state statute.) I sincerely doubt that they would not do that. If I were a responsible legislator (I’m not the latter) I would certainly vote to do that.
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What you may be doing by proposals like this is surrepticiously returning power to the state legislatures to select the electors, after those state legislatures had delegating the selection to–the voters. Odd twist, eh?
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As far as I can tell, this proposal is merely window dressing.
Once passed by the necessary number of states, I assume it would become a binding interstate compact. States routinely face restrictions on post hoc actions that they may like to undertake but legally cannot. For instance, the state may want to tear up its union contracts and refuse to pay bargained-for benefits. But they cant; the contracts clause (and probably other constitutional provisions) prevents it. Similarly, once MA agrees to appoint its electors in a given way, they remain bound by that determination. Opponents to the state’s action could likely seek redress in federal or state court. And Bush v. Gore should make it a lot more difficult to invoke the federal question doctrine on such a suit.
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But more importantly, the other states would have their own form of redress: if MA doesnt live up to the agreement, they dont have to either. What would then happen is that the system would revert to its present form: winner-take-all to the plurality vote recipient. So nothing’s lost, except (hopefully) that the election targeted the entire national population rather than just swing voters in swing states.
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Finally, there would be some pretty intense extra-legal (i.e., political or PR) pressure on states to follow the agreement. Even if what you’re saying (state legislatures COULD change the rules after the election) were true, as a factual issue, they dont. Alabama and Arkansas, for instance, have overwhelmingly Dem state legislatures. Presumably, (most of) those legislators weren’t too thrilled with the outcome of the 2000 election. But they wouldn’t dream of then flipping their vote allocation method to throw the election to Gore. Norms often govern our actions as much as laws (well… except for our present AG…).
Let me respond to you this way. The US constitution specifically states that the legislatures of the various states determine the slate of electors. The legislatures of the various states have delegated that power to the voters, but that delegation is subject to the power of the legislatures to revoke the rights of the voters and select the slate themselves. That is what was going on in FL in the 2000 election–the FL legislature was getting ready to select a slate of electors (let’s not discuss whether what they were doing was correct, the fact is that it was constitutional).
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Two, the contracts clause. That was meant to apply to private contracts, not “objects” that might have been conducted by states that, in turn, are regulated by the US constitution (see above). I suppose that if a state agency wanted to contract with another state to, for example contract with an agency of another state to purchase water, the contracts clause would apply. But that is a different issue from a case in which the constitution specifically defines the procedures–such as elections.
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What you are suggesting is that states can avoid the requirements of the amendment procedures of the federal constitution by ignoring them? I’m sorry, but that doesn’t work. And, given the diverse nature of the large states (NY and CA vs. TX and FL) the proposal probably isn’t going to go anywhere.
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I don’t like the EC any more than you do*, but the proposal is a bandaid on the wrong injury.
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*Actually, the German system is interesting. (Sorry, but that’s the system that I know.) The Bundestag–the lower house of parliament, which actually runs the government) is selected half by “direkt Mandants”–similar to people elected by district–and half by votes cast for party–with some interpolation between the two. The fact is that the Green party in Germany would not be a force in German politics if it were not that way. (Neither would the Liberals–FDP (traditional liberals Freie Democratische Partei) by the way if their electoral system had been different.) Voters cast two ballots, one for the direkt Mandant, and one for the party, and the two determine the make-up of the Bundestag.
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Interestingly, the Bundesrat, the upper house of parliament (which has limited powers) is fashioned after the origional construction of the US Senate. It represents the interests of the various German states in parliament, but, unlike the US construction, only in limited areas–mostly taxation.
“The National Popular Vote plan is an interstate compact-a type of state law authorized by the U.S. Constitution that enables states to enter into a legally enforceable contractual obligation to undertake agreed joint actions. There are hundreds of interstate compacts, and each state in the United States belongs to dozens of compacts. Examples of interstate compacts include the Colorado River Compact (allocating water among seven western states), the Port Authority (a two-state compact involving New York and New Jersey), and the Multi-State Tax Compact. Some compacts involve all 50 states and the District of Columbia. Interstate compacts are generally subject to congressional consent.”
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States have the right to bind themseles to contracts. If NJ decides they dont want to pay Port Authority dues, NY can go to court and force them to. And this so even if the NJ legislature passed a law saying they were withdrawing from the Port Authority agreement (assuming the contract had a provision saying you cant withdraw without notice, etc.).
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The constitution delegates power of selection to the states. But it doesnt say that they dont have the power to determine the method of selection in a way that binds them ex ante. And the proposed statute includes a bar on changing methodology of appointment within six months of the inauguration. Neither of us knows precisely how the USSC would react, but I am inclined to think they will uphold the compact. [This is classic Rawlsian contract theory that I dont want to get into, but basically it comes down to the point that we honor contracts because, in order to be more free, we sometimes have to be make ourselves free.] Also, from a realist perspective, the supreme court is simply going to be uncomfortable with a state’s attempt to change the rules of the game like that.
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But even assuming that the courts duck this issue and say that states DON’T have the right to bind their methodology of selection (and thus states can void the compact the day after election day), there would no doubt be disputed slates of electors. And when that happens, under the Constitution, it’s left to Congress to determine which slate gets seated in the EC. So if MA decides that it’s taking its ball and going home, Congress will have to decide if they can do that. This is what would (and should) have happened with FL 2000 if the recount came back that Gore won after all. Congress is even more attuned to public opinion / political pressure than the Court, and I’d bet they would not seat the slate put forth by the legislature in a situation like this.
Maryland’s approach would actually keep the electoral college but change the way a majority of its delegates are elected to simulate an EC-free election.
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Where a constitutional amendment would need to be ratified by 3/4 of the state legislatures, the Maryland plan only needs to be adopted in states with a majority of the electoral votes. That could even be less than a majority of the states, though I wonder how much support there would be in big states like California.
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Here in Massachusetts, the only way my presidential vote counts under the current system is if I can pair it with a Nader voter in Ohio.
Amendments that change the structure of our political process typically ratify de facto changes to the system. So, for example, preceding the ratification in 1913 of the Seventeenth Amendment, which required the popular vote of U.S. Senators (as opposed to the prior arrangement of having the state legislatures elect U.S. Senators), many states had already passed laws directing their legislatures to hold “advisory” popular-vote elections to determine which U.S. Senate candidate the legislature would elect.
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So this MD bill, which is the same one being considered in other states as part of the National Popular Vote movement, may at this point be a work-around of the electoral college, but may in fact be necessary to support a constitutional amendment down the line.
It’s not obvious to me that popular vote is a better system than the EC.
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Some pros for popular vote: * Fairness in vote weight (1 man, 1 vote) * Fairness in voters location (1 vote in CA just as likely to swing the election as 1 vote in OH)
The big advantage of the EC: it reduces the opportunity for fraud and the necessary audits to control for fraud. Why? Well, with the popular vote, fraudulent votes cast anywhere are just as powerful, and if the election is sufficiently close you have to do a national recount and audit.
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With the EC, nobody’s going to try to rig CA or TX — if they came out GOP or Dem respectively, folks would know there was massive fraud and would ferret it out. So from a national perspective, there’s only about 20 states (representing about 30% of the votes) that require tight audit controls because in only those states could fraud both (a) swing the election and (b) escape massive outcry due to obvious tampering. Additionally, a close national vote doesn’t trigger a massive audit — only close state results, and that audit is only critical if those EVs are going to swing the EC.
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Right now, if you want to commit election fraud, there’s only a handful of states in which you would even try, and those states are watched pretty closely. Furthermore, even if you were able to swing a single state (say, 200,00 votes), it might not be enough EVs to swing the election. Conversely, with a popular vote you could alter those 200,000 votes anywhere in the country (making it harder to track) and you’d know exactly how much those 200,000 votes were “worth” (200,000 votes, obviously) whereas with the EC the 200k might be worth the state’s EVs.
If I had high confidence in the nation’s 51 different election systems, I wouldn’t worry so much about the “audit advantage” the EC has. In the mean time, I don’t trust a number of states’ systems, including Maryland’s in particular (Diebold problems).
I don’t see why you can’t fight for both a national system and a reformation of our election systems to reduce fraud. The Electoral College isn’t going anywhere any time soon, but while we’re fighting that fight we should also be working to clean up, as you mentioned, the Diebold and other problems.
I’m not saying there arent occaisional (often inadvertent) cases, but as the NYT series this past week demonstrated, reports of widespread voter fraud have been greatly exaggerated.
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To the extent fraud does occur, it happens 1) in local or small elections — where a small number of votes could actually make a difference in the outcome and 2) through absentee ballots.
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But I think the point you’re making is that the incentives (and thus the instances) of fraud would increase with this reform. I dont think this is likely problem, and certainly not large enough to dissuade states from adopting the MD plan. You can largely depend on the states to police against fraud because of unified ballots. State and local officials have personal incentives to prevent rampant ballot-stuffing. E.g., everyone in TX may want to give more popular votes to GWB, but local officials have a personal incentive against allowing that. Moving to voter-verified paper records would also prevent widespread this problem. And, assuming we ever get a new AG, you’ve got DOJ has a second policeman for this problem.
Fundamentally, the anti-EC sentiment stems from the liberal camp, which is mostly populated by states with larger population. The EC is, in effect, a constitutional safeguard to prevent a minority of states from dictating to the majority. While it is easy for the masses to be upset about the last two elections, it is also easy for the Democrats to overlook, say, the 1960 elections, in which they were in the minority popularly, but won the presidency in the EC.
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Best,
Chuck
Since the civil war, in only three elections has the presidency winner received fewer popular votes than his rival, but won in the EC: 1876, 1888 and 2000. http://uselectionatl…. In 1960, Kennedy won the popular vote very narrowly, but his EC majority was much bigger. Pretty much the converse happened in 1968: Nixon won a narrow popular vote victory and a more substantial one in the EC.
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As to the history of the EC, it’s more than just small-state protectionism. The states didnt have anything like universal white manhood suffrage until the 1830s. So you had to have some sort of indirect election to allow for such differences (property qualifications, e.g.). This was particularly relevant for the slave states: the 3/5ths clause gave the southern states virtual representation for their slaves, but obviously the slaves didnt vote. Thus, the wonders of the electoral college.
Small states have the “right” to have an outsize influence in presidential elections? Under what ideology?
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Right now, we have large states being ignored by presidential presence in favor of a small group of medium- and small-size ones. Is that preferable to paying attention to the larger ones in addition to select small- and medium-size ones? I doubt, should this pass, that anyone would run on a “let’s screw over the Iowas of the country” platform.
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Regardless, it’s not as if candidates would start skipping Ohio and Florida. Rather, campaigns would concetrate on swing geographical areas rather than states balanced on a knife-age. I’d expect candidates to spend a lot of time in areas undergoing demographic transitions, particularly suburban areas of growing cities, such as Charlotte, Portland, OR, or Phoenix.
I dont think the problems with getting this passed in states possessing >270 EVs is as insurmountable as people might think.
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First, I think you can make an effective case to overwhelmingly R states that they do not benefit from the current EC system either. 1) whether you’re a large state (TX) or a small one (NE), do the candidates campaign in your state? [No.] 2) if 60k votes had switched in OH, Kerry would have been elected with a minority of the popular votes. [Scary :)]. I’d be interested to see how this plays in some uncompetitive southern and western states.
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Second, I dont think the current system benefits “small states” per se. It benefits “swing states,” whether they are large (FL, OH) or small (NH). There are plenty of small states (WY, MT, ND, VT, RI, DC) that do not receive special attention under the current scheme and presumably would (could?) do no worse under direct national elections. Maryland is not a very large state, and I dont think they are seeking to be under the tyranny of CA and NY. It just happens to be predominately-D, so it’s a loser under the current system. Indiana, a similarly-sized state, faces the same issues. As Dr. Ruth would say, size doesnt really matter.
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[Also, history has shown that the concerns of small states being railroaded by large states were overblown. To the extent they exist, the senate prevents it from happening. The real differences among states are sectional. MA and RI have largely the same interests. Ditto for TX and OK, PA and DE, etc.]
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Third, why do opponents think that this reform would lead to politicians focusing solely in big cities on the coasts? It seems to presume that political leaders and consultants are irrational, that they wouldnt be able to figure out that a vote in Kansas is worth as much as a vote in NYC. GWB got around 51% of the national popular vote, and he performed atrociously in all of the large coastal cities (and their suburban metro areas). His performance proves that this concern is unfounded. You could argue that cities offer economies of scale in terms of reaching out to voters. But: 1) technology (television, the internets!) lowers the costs and barriers to outreach of far-flung voters and 2) even assuming it’s marginally harder to organize those constituencies, the difference is so slight that an enterprising political leader would not be precluded from organizing winning a campaign based on these voters (a la Bush in 04).
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Fourth, I talked about the fraud problem in a previous comment, but I dont think it’s a worthy objection. Certainly not enough to prevent a reform with such clear benefits to our small-d democracy and civic engagement.
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Fifth, the glorious two-party system would decline. The fact of the matter is that two-party elections are not fought for the EVs of all 50 states. Deep blue and deep red states are written off before the first day of the campaign. It’s the first-past-the-post election system that creates a two-party system, not the EC. Faced with the challenge of getting a plurality of votes, candidates will inevitably seek support from broad-based coalitions and elections will gravitate to two main factions. This is like political science 101. CA probably has more voters than the entire US circa 1900. Has direct election for governor there created a multi-party system? Unless someone has a plan for creating a proportionally-elected presidency (which would be quite a feat!), the two-party system is safe under the MD plan.
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Anything else?
Presidential campaigns — the campaigns that choose the highest official in the land — marshall their resources as wisely as they can.
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If Presidential campaigns were determined by a national popular vote like the Maryland plan, Democratic presidential candidates would visit places like Roxbury and South Boston, and Republicans might stop on the South Shore or in the North End. More importantly, presidential candidates would be able to give just as much attention to Massachusetts as they do to New Hampshire or other current swing states. Voter turnout in our state would probably increase as well.
Waaaah! We didn’t get a vist! Waaah! We’re gonna change the rules! Waaah!
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Earth to Maryland: it isn’t your number of electors that has candidates stumping elswhere.
It is your predictability.
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Campaigns don’t waste their time & money on sure things nor on lost causes.
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Grow up, Maryland. This system was devised by folks far wiser than you.
Long time reader, first time “blogger”. We have a fair number of legislative co-sponsors for the effort to pass the National Popular Vote compact in Massachusetts. I have touched base with John Walsh about getting the issue before the state committee and he suggested the idea of trying to get an informational presentation together at the upcoming state convention. While we have not finalized this I am hopeful that we can put together a table and/or a break out session on the issue. If anyone is interested in this matter I suggest you take a look at http://www.nationalp… to get a better idea of the effort that is underway across the country as well as
http://www.nationalp… to see the list of co-sponsors in MA. I look forward to the debate and welcome any comments and observations as we move forward.
Best regards,
Charley Murphy
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CHARLES A. MURPHY
State Representative
21st Middlesex District
Proudly Serving the Residents of
Bedford, Burlington & Wilmington
(617)722-2396
http://www.charlesmurphy.org
I think that NPV would be a huge progress for democracy. Today, one cannot pretend that everybody is equal: someone living in Utah is more influential in the vote thant someone living in New-York. So many people feel desperate, they know that they cannot alter the outcome and they just stay home. This must change and only NPV would take away the power from the states to give it back to the people. Wouldn’t it be democratic ?