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How to work around the Electoral College — without amending the Constitution

MinnPost illustration by Jaime Anderson

One in a series of articles. You can read the whole series here.

Imperfect Union: The Constitutional roots of the mess we're inI’m almost done beating up on the great and glorious Electoral College system. A couple of final thoughts:

Notwithstanding the worshipful attitude that most Americans have toward the Constitution in general and willingness to believe in the near-perfection of the Framers and their vision, most Americans, by a stable and very wide margin, would prefer a simple national popular vote system.

Here is the result of the last four times Gallup has asked the question (as well as the question wording). In general, Democrats seem to like the popular vote idea more than Republicans. In the aftermath of 2000, when George W. Bush became president despite finishing second in the popular vote to Al Gore, a majority of Republicans used to tell Gallup they favored the Electoral College over a straightforward popular vote. But in most recent running of this question, a majority of Democrats and Republicans and independents favored switching to the popular vote system.


Preferred system for electing presidents

Thinking for a moment about the way in which the president is elected in this country, which would you prefer — [to amend the Constitution so the candidate who receives the most total votes nationwide wins the election, (or) to keep the current system, in which the candidate who wins the most votes in the Electoral College wins the election]?

Preferred system for electing presidents
Gallup


Of course, just because the majority of us -- by 62-35 (and in Minnesota, it’s 75-25) -- favor something, doesn’t necessarily mean it’s going to happen. Since the Electoral College system (as revised by the 12th Amendment) is embedded in the Constitution, it would take a super-super-supermajority consisting of two-thirds in both houses of Congress and ratification by three-fourths of the states to change it by amendment.

But there is a clever work-around in existence that, without a constitutional amendment, would turn U.S. presidential elections into national popular votes. In fact, the organizers of this movement call themselves “National Popular Vote.” I’ve written about it before. Here’s how it would work:

States would pass laws pledging that they will award all of their electoral votes to whichever candidate wins the national popular vote. (This should be constitutionally kosher. The Constitution leaves it pretty much entirely up to each state to decide how to choose electors.) But under this proposed law, the requirement doesn’t take effect until enough states have passed a similar law to guarantee that the winner of the national popular vote would get an Electoral College majority.

Sound crazy? Well nine states have already passed it. And since California (55 electoral votes) is one of those nine and Illinois (20 EV) is another, those nine combined control about 132 electoral votes, almost half of the 270 that is necessary to create an Electoral College majority.

The law is in play in many states, including Minnesota, where it has significant bipartisan support that includes Republican Speaker of the House Kurt Zellers. Last year, it passed in the House Committee on Government Operations and Elections.

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Comments (11)

Problems

They would still have to work out the problem of the faithless elector who could vote any way he wants no matter what the law says.

A step in the right direction

But not all the way, since electoral college votes are still biased (if slightly) against large states, since it is based on the number of Representatives AND Senators from each state.
And it would take the courts centuries to finally decide that state legislatures did indeed have this power. I'm sure that it would be immediately challenged by those who would lose power in the change.
And as we're seeing right now, laws can always be changed, so a stable change in the system should still involve amendments to state constitutions.

And I'd have more faith in the Gallup poll if it began with an explanation of what the electoral college is. Given a choice between a known and an unknown, most people would choose the known alternative ('better the devil that you know ....').

Who'd lose power?

Please explain who would lose power if the National Popular Vote (NPV) plan passed in enough states to become active. What am I missing?

Bush

would not have been President.
Any politician who depends on niche voters in selected states would lose.
That's the point.

Faithless electors

Sure, you people blame Atheists for everything. Well I've just about had it up to "here" with this abuse!

;-)

Haven't you gotten the work that Atheism is officially a faith?

Faithful Atheists

Brandon,

Don't get me started. ;)

Two thoughts

I have two thoughts.

The first is somewhat trivial, but if we believe that popular opinion polls in some controversial issues should be disregarded and left to the courts — majorities often agree that minorities should be limited in issues such as gay marriage, for example — then its hard to understand why this opinion poll should be a relevant argument for fundamentally changing our election process.

Second, the electoral system isn't perfect, but the popular vote has plenty of warts of its own. Right now it doesn't make much sense for a Democratic presidential candidate to campaign in Texas, but under a popular vote system it wouldn't make much sense for anyone to campaign in North Dakota, South Dakota or Iowa. Is that better?

So again, the electoral process is hardly perfect, but advocating for a drastic change from a working-but-flawed system to a completely new but equally flawed system seems reactionary to me. Tweaking the electoral method would be far more prudent, in my opinion.

Why This Scheme Is Unlikely to Work

If a Republican barely wins the popular vote in a hotly contested race and if Massachusetts (as usual) has a big majority of Democratic votes and if Massachusetts's electoral votes could give the presidency to the Democratic candidate, then I think it is very unlikely that Massachusetts would give its electoral votes to the Republican.

If the NPV movement gets closer to getting enough states to go into effect, I expect its opponents to publicize the possibility of this sort of scenario, tailoring it to the state in which they are operating. The NPV interstate compact is supposed to prevent this type of scenario from happening, but a state legislature would be committing political suicide if they allowed it to happen.

state power

In two areas at least the small states hold disproportionate influence:
1) the Senate - you get 2 senators whether your population is 600,000 or 60,000,000
2) the Electoral College

These were unexpected consequences, it is the way the US government was designed, in order to get the smaller states to sign on, I imagine.

Why in the world would North Dakota and the others give this up? The states with advantage under this system will always outnumber the states who are disadvantaged since the whole disproportionate thing is a result of a few states having 1/2 the population, therefore most of the states are in the other 1/2. People in small states generally fear the power of the masses on the coasts.

Regardless of merit, I don't see this system changing anytime soon.

A reverse of Gore v Bush

I've heard more than one commenter say that this year Obama could win the Electoral College and Romney the popular vote. If that happens, I would expect Republican outrage on a level of Democrat's outrage in 2000 (let's hope it doesn't go to the House or Supreme Court, however).

With both parties negatively affected by the EC in just 12 years, I would hope that could be the turning point, and an opportunity for bipartisan support in congress and popular support in the states to do away with the EC. They may even be able to deal with the 12th amendment, rather than have a work-around.

I think that the face and tone of the presidential election would change to accommodate a new popular vote reality. In this day of electronic communication, candidates don't really need to run all over the country to speak in person. New voting blocks would emerge that candidates would have to address -- not just large urban areas, but also rural areas (not just Iowa or Colorado), or areas with large immigrant or elderly populations (not just Florida), for example. State lines would become less important than constituent groups, which is how it should be.