The American Legion Magazine | 6.1.12
By Alan W. Dowd
Just in time for the 2012 presidential election, a group
called the National Popular Vote (NPV) is pushing for fundamental changes to
how the president 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, under the
NPV plan, if Candidate B wins the popular vote in, say, California and
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 their 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)
Not surprisingly, NPV’s plan has plenty of supporters and opponents.
NPV points to polls showing 70 percent support for the popular-vote
plan.[i]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
Birch Bayh (D-Ind.), Fred Thompson (R-Tenn.) and Jake Garn (R-Utah), and former
governors Jim Edgar (R-Ill.) and Chet Culver (D-Iowa), among others.
Popular Vote bill would guarantee the presidency to the candidate who receives
the most popular votes in the entire United States,” NPV
straightforwardly declares. “The bill ensures that every vote, in everystate, will matter in every presidential
Critics, like Sen. Mitch McConnell (R-Ky.), counter that
NPV’s plan is “dangerous.”[ii]
Calling NPV’s proposal “the most important issue in America nobody’s talking about,”[iii] McConnell warns that “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.”[iv]
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,
D.C. What we 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 Gore won by 0.2
percent; Iowa, where Gore won by 0.3 percent; and Oregon, where Gore won
by 0.4 percent. The recount was automatic in Florida, due to the state’s election laws,
while in those other states the trailing candidate must request a recount. Then-Governor
George W. Bush did not do that.
A Bush-Gore type election under the NPV system, as 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.”[v]
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.”[vi]
What Are We?
That point about each state’s role in the presidential
election 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 Founders offered some guidance about this. “Each state,
in ratifying the Constitution,” Madison
wrote in Federalist No. 39, “is considered as a sovereign body, independent of
all others.” The states, according to Madison,
are at least “partly…distinct and coequal.” Importantly, Madison explained that “election of the president
is to be made by the states”—not by a national plebiscite.
The significance of each state is further underscored by the
text of the Twelfth 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
Again, the will and voice of each state was considered
important to the Founders, 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, but
rather 50 individual state elections (51 counting D.C.). 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 popular vote nationally, it would seem that Madison and other Founders
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—state-by-state
legitimacy. 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 of legitimacy 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 versus 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, which was 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, New York
Times, Washington Post, CNN, St. Petersburg Times, Wall Street Journal,
Tribune Publishing and 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.[vii]
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 presenting
two sets of electors apiece, 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 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 into the House (as prescribed by the
Twelfth Amendment), where 13 state delegations voted for Adams and 7 voted for
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
chooses its presidents, they need to do so through the Constitutional process.
“The Electoral College process is part of the original
design of the U.S. Constitution,” as the National Archives (NARA) concludes.
“It would be necessary to pass a Constitutional amendment to change this
system.” And that’s no easy task. According to NARA, “There have been more proposals for
Constitutional amendments on changing the Electoral College than any other
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, Article II, 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.”[ix]
There is a happy medium between the current system and the
NPV proposal—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.[x]
The Congressional District Method is substantially different
than the winner-take-all method used by the other 48 states and the District of Columbia. In
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
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, the American people believe 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.
[ii] Wall Street Journal, “McConnell: National Popular Vote Is ‘Absurd, Dangerous’ Idea,” http://blogs.wsj.com/law/2011/12/09/senate-minority-leader-calls-national-popular-vote-absurd-dangerous-idea/, December 9, 2011
[iii] Eliza Newlin Carney, “GOP nonprofit backs Electoral College,” Roll Call, December 7, 2011.
[iv] Jonathan Ernst and Tom Curry, “McConnell warns of popular vote ‘catastrophic outcome,’” Reuters, December 7, 2011.
[v] Ernst and Curry.
[vii] Associated Press, “An analysis of Florida balloting favors Bush,” The New York Times, April 3, 2001.
[viii] National Archives and Records Administration, Frequently Asked Questions about the Electoral College, http://www.archives.gov/federal-register/electoral-college/faq.html#reforms
[x]NARA, “Maine and Nebraska,” http://archive.fairvote.org/e_college/me_ne.htm.