Wednesday, July 15, 2009

How to Stop Those Elections Where John Kerry Almost Won

John R. Koza, Barry Fadem, Mark Brueskin, Michael S. Mandell, Robert Richie, and Joseph F. Zimmerman. Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote. Los Altos, Ca.: National Popular Vote Press, 2008.

A National Popular Vote is a compact among states. Once enough states have joined where their combined electoral votes are a majority of the Electoral College, all the member states will agree to cast their electoral votes for the winner of the national popular vote. This will have the effect of creating a direct election of the President.

A national popular vote makes every vote equal across the nation. It elects the President in the manner as every other elected official is chosen. This process is permitted under the Constitution which provides that the states determine how electors are chosen. This will make Presidential elections fairer than they have ever been.

The Electoral College was established by Constitutional Founders when there was little history of public elections. Many Constitutional Convention Founders distrusted the abilities of the voting public to have the knowledge and wisdom to vote. Newspapers were the primary medium of information in the 18th century and it was argued that voters in one state would have little knowledge of candidates from other states. At the time the Constitution was created, political power was in the hands of the state legislatures, which had the ability, by any one state legislature, to override national decisions. Therefore, the selection of the President then was left in the hands of the state legislatures.

Constitutional amendments have changed the original decisions made by Constitutional Founders. Even they did not expect their decisions to remain eternal. Their choices on other modes of elections have been changed, such as changing the election of Senators from state legislatures to direct election. The national popular vote will similarly change the election of the President from state legislatures to direct election.

Majority rule decides all other elections. One person gets one vote equal to every other vote. Because the Elector College is the number of members of Congress plus two (for each state having two Senators), smaller states have more Electoral College members per capital. Wyoming, with 506,520 residents, has four times per capital Electoral College representation than does California. A system that gives a voter four times more say than another person is inherently unfair.

The Electoral College had led to Presidential campaigns limiting their efforts to where the result is reasonably in doubt. About three fourths of the states are virtually ignored by the Presidential candidates.

The Electoral College has four times elected a candidate receiving fewer votes than a losing candidate. This happened when it elected John Quincy Adams over Andrew Jackson in 1824, Rutherford Hayes over Samuel Tilden in 1876, Benjamin Harrison over Grover Cleveland in 1888, and George Bush over Al Gore in 2000. Gore would have won with a switch of 289 votes in Florida.

The Electoral College narrowly escaped electing a popular vote loser on other occasions. In 2004, Bush defeated John Kerry by over 3 million votes yet a shift of 39,444 votes in Ohio would have elected Kerry. In 1976, Carter defeated Gerald Ford by 1.7 million votes yet a switch of 5,559 votes in Ohio plus 3,687 votes in Hawaii would have elected Ford. In 1968, Hubert Humphrey would have defeated popular vote winner Richard Nixon with a switch of 10,245 in Missouri and 67,481 in Illinois. In 1960, Richard Nixon would have defeated popular vote winner In John Kennedy with a switch of 4,430 votes in Illinois and 4,782 votes in South Carolina. In 1948, Thomas Dewey would have defeated popular vote winner Harry Truman with a switch of 3,554 votes in Ohio and 42,835 in New Jersey.

A direct election sharply reduces the ability of fraud to alter a Presidential election. If fraud could overturn a key state’s election, it could potentially change the outcome. Such fraud would most unlikely have any impact on the winner of the national popular vote.

The Constitution states that Electors elect the President and Vice President. The term “Electoral College” does not appear in the Constitution. The Constitution states that each state’s legislature determines the manner in which Electors are chosen. Thus, state legislatures selecting Electors to vote according to a National Popular Vote winner is permitted under the Constitution.

Indeed, most states initially had their Electors chosen by their state legislatures. Six of the ten states that participated in the first Presidential election (three states did not participate) had their Electors selected by their state legislatures. In the first competitive Presidential election in 1796, eight states had their state legislatures select the Electors. Over time, every state legislature has provided the selection of Electors to voters. The last time a state legislature chose the Electors happened was in 1876 when the Colorado state legislature elected its Electors. The issue reemerged in 2000 when a proposal was made that the Florida state legislature elect it’s state’s Electors. Constitutional scholars stated that would have been permissible.

Some states provide no requirements on how Electors should act when voting. As recently as 2004, a Democratic Elector voted for John Edwards for President, presumably by mistake. Electors have cast protest votes not reflecting the candidate to whom they were pledged in the 2000, 1988, 1976, 1972, 1968, 1960, 1956, 1948, 1820, and 1796 elections. Mississippi allows for the election of, and has elected, unpledged Electors. In 1960, Harry Byrd received 15 Electoral votes from three states without even being a candidate for President, many of which came from unpledged Electors. Thus, it is technically possible the Electoral College could elect a President who didn’t even run before the public as a candidate.

Voting for Electors can lead to complications. When a person write-in a Presidential candidate in what is technically an election of Electors, what Electors have the write-in votes selected? In Mississippi, it is possible to vote for individual Electors, making it possible for a voter to choose Electors pledged to different candidates. In New York and Vermont, it is possible for Presidential candidates and their electors to receive multiple lines on a ballot (i.e. run as the nominee of both the Republican and Conservative Parties) with the tallies from the multiple listings added together towards the election of those Electors. At the same time, it is also possible for Presidential candidates to appear on multiple party lines with different Electors, meaning that the votes towards electing that same individual as President are divided towards the election of competing Elector slates. This could potentially lead to a losing candidate winning that state’s Electors.

In sum, the Electoral College is a complicated mess that served the needs of political compromise in the 18th century that has no relevance to the 21st century. A National Popular Vote would allow the election of our President by the only method that is sensible—direct election. The National Popular Vote Interstate Compact is the mechanism that will allow the direct election of the President to happen.

Interstate compacts date back to the Articles of Confederation, when four of them were created. The numbers of compact began increasing after 1921, partly as a response to the need of interstate cooperation on trade, commerce, and agriculture. Compacts have also been created for cooperation on crime fighting, corrections, civil defense, cultural matters, education, energy, facilities, fisheries, flood control, marketing, metropolitan administration, military, motor vehicles, natural resources, regulations, rivers, Federal-interstate matters, social services, and Native American gaming. Compacts are made between state governments and do not require Congressional approval. A 1978 U. S. Supreme Court decision upheld that Congressional approval is not required for the creation of an interstate compact.


Blogger mvymvy said...

In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. This national result is similar to recent polls in closely divided battleground states: Colorado-- 68%, Iowa --75%, Michigan-- 73%, Missouri-- 70%, New Hampshire-- 69%, Nevada-- 72%, New Mexico-- 76%, North Carolina-- 74%, Ohio-- 70%, Pennsylvania -- 78%, Virginia -- 74%, and Wisconsin -- 71%; in smaller states (3 to 5 electoral votes): Delaware --75%, Maine -- 71%, Nebraska -- 74%, New Hampshire --69%, Nevada -- 72%, New Mexico -- 76%, Rhode Island -- 74%, and Vermont -- 75%; in Southern and border states: Arkansas --80%, Kentucky -- 80%, Mississippi --77%, Missouri -- 70%, North Carolina -- 74%, and Virginia -- 74%; and in other states polled: California -- 70%, Connecticut -- 73% , Massachusetts -- 73%, New York -- 79%, and Washington -- 77%.

The National Popular Vote bill has passed 29 state legislative chambers, in small, medium-small, medium, and large states, including one house in Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, North Carolina, and Oregon, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, Vermont, and Washington. The bill has been enacted by Hawaii, Illinois, New Jersey, Maryland, and Washington. These five states possess 61 electoral votes -- 23% of the 270 necessary to bring the law into effect.


5:40 PM  
Blogger Tchaikovsky Sounds Funny said...

Thank you for these very useful observations. The idea of a National Popular Vote is gaining support. Once people understand it, they tend to support this. It requires educating legislators to approve this.

6:10 PM  

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