July 26, 2011
To the Members of the 112th Congress:
The 2012 elections loom in the near distance, and the presidential race could well be tighter than in 2008.
So pundits, professors, and some politicians express concern, as they do every four years, that the candidate who wins the majority of the national popular vote might not win a majority of the Electoral College vote. I know this is a mathematical possibility; I think it has happened four times in 56 presidential elections. But does this possibility somehow violate the principles of fundamental fairness, disenfranchise the American voter, and bring disgrace to American democracy? This is what is alleged every four years by those who advocate overturning the Electoral College.
By the testimony of the Framers of the Constitution themselves, designing the office of the presidency was the most difficult task they faced. They began with the idea of having an executive chosen by the national legislature; they considered having him chosen by state legislatures, state governors, directly by the people, by special electors, and by various combinations of these methods. The mode of selection was a question inseparable from other questions: what powers to be granted to the office, the term of office, the question of reeligibility, whether the executive should be single or plural. These questions were also related to the foundations, powers, and structures of the other branches. And all these questions were related to the overarching question of how to construct a government that would best secure the safety and happiness of the people.
After weeks of deliberations, the Framers came up with a mode of selecting the president that has managed to provide for the relatively seamless transition of government for over two hundred years. Aside from this commendable record, the Electoral College seems to have other desirable effects. It discourages regional parties, moderating local interests by inducing them to seek a national and federal base; it provides protections for minorities, beneficently affects the character of majorities formed in selecting a president, and makes the president beholden not to the passions of a numerical majority, but to the Constitution. In all these ways, the history of the Electoral College has justified Alexander Hamilton’s conclusion that, if this mode of selecting a president is not perfect, it is nonetheless “excellent.”
Dismissing all these interesting ingredients of our constitutional politics, opponents of the Electoral College demand simple national majoritarianism in the selection of our presidents. But they recognize that they do not themselves have the constitutional majority necessary to amend the Constitution. So, with no apparent sense of irony—dubbing themselves now the “National Popular Vote” movement (NPV)—they have devised a way of nullifying the Electoral College by substituting a constitutionally dubious, potentially minority vote for the constitutional majority required in the amendment process. The NPV has launched a movement to persuade states representing 270 electoral votes—the number it takes to win the presidency under the current electoral college system—to agree through a “compact” to award all their electoral votes to the presidential candidate who wins the popular vote nationwide.
Hawaii, Illinois, Maryland, Massachusetts, New Jersey, Vermont, Washington state, and the District of Columbia have already agreed to this compact. A bill to make California part of the compact (AB 459) has just been approved by the California legislature and awaits the signature of Governor Jerry Brown. If California’s 55 electoral votes are to be added to the compacting states, they will be about half way to the 270 votes needed to activate the compact. In each of the states participating in the compact, the majority vote of the states’ citizens is to be dismissed—or, actually, reversed—if it disagrees with the majority vote of the nations’ citizens. If a candidate wins a state but loses the national popular vote, this compact requires the state to allocate its electoral votes not to the candidate who wins in the state, but to the candidate who loses—some democracy!
The NPV seeks constitutional authority for its effort in Article II, Section 1, of the Constitution, which says regarding the election of the President: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Their ambitious reading of this article shows the respect for the Constitution that one would expect from a movement seeking to undermine the constitutional requirements for elections by circumventing the constitutional requirements for amendments.
As to Article I, Section 10, of the Constitution, dealing with interstate compacts, the National Popular Vote movement dismisses it as irrelevant. This is what the Constitution says: “No State shall, without the consent of Congress…enter into Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay” (emphasis added). But the NPV argues that their “compact” is none of Congress’s business. Do you think presidential elections are none of your business?
We Americans are a constitutional people. From the beginning, we insisted that our politics must be answerable to the consent of the governed, and we devised constitutional ways of constructing and shaping our authoritative consent so that our choices would not reflect mere willful majorities but would reflect the cool and deliberate and just sense of the community. If we are to change the electoral system in a fundamental way, we should engage, not in constitutional trickery, but in the constitutional deliberation provided for the purpose—as we have done several times in the past. We should always be skeptical of attempts to circumvent provisions very deliberately put into the Constitution, just because a loud interest group of the moment finds them inconvenient. Where populist passion seeks to circumvent the Constitution in order to remove a constitutional check on populist passion, we should be all the more skeptical.