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Tuesday, June 12, 2012

Murphy's Law Of Electoral College Repairs

Thinking more about unintended consquences and the NPV movement, there is a statement in Choosing A President that has been stuck in my mind:

[O]ne can say that even the correction of minor “oversights” to the Electoral College can produce significant consequences.

One can certainly argue, as the authors of the article do, that by fixing unanticipated problems with the College, the 12th amendment enabled the development of our partisan duopoly, encouraged the trend toward a popular vote for electors, and the predominant winner-take-all allocation system.  It thus also appears to have made it less likely the EC would be abolished.

I am certainly sympathetic toward NPV.  I support a national, direct popular vote, and understand how difficult the amendment process is, only made perhaps more so because of partisan interests in this case.  However, tinkering in the margins with a compact such as proposed could have further, more disastrous ramifications going forward.

Who can forget this scene from Fahrenheit 9/11?

At issue was the mechanism for objecting to a state's Electoral Votes, as described in 3 USC § 15.  The rules date back to the Electoral Count Act of 1887.  Here's a capsule summary from Breyer's dissent in Bush v Gore (2000):

[T]he Twelfth Amendment commits to Congress the authority and responsibility to count electoral votes. A federal statute, the Electoral Count Act, enacted after the close 1876 Hayes-Tilden Presidential election, specifies that, after States have tried to resolve disputes (through “judicial” or other means), Congress is the body primarily authorized to resolve remaining disputes. See Electoral Count Act of 1887...

The legislative history of the Act makes clear its intent to commit the power to resolve such disputes to Congress, rather than the courts:

“The two Houses are, by the Constitution, authorized to make the count of electoral votes. They can only count legal votes, and in doing so must determine, from the best evidence to be had, what are legal votes .... The power to determine rests with the two Houses, and there is no other constitutional tribunal.” H. Rep. No. 1638, 49th Cong., 1st Sess., 2 (1886) (report submitted by Rep. Caldwell, Select Committee on the Election of President and Vice-President).

The Member of Congress who introduced the Act added:

“The power to judge of the legality of the votes is a necessary consequent of the power to count. The existence of this power is of absolute necessity to the preservation of the Government. The interests of all the States in their relations to each other in the Federal Union demand that the ultimate tribunal to decide upon the election of President should be a constituent body, in which the States in their federal relationships and the people in their sovereign capacity should be represented.” 18 Cong. Rec. 30 (1886).

“Under the Constitution who else could decide? Who is nearer to the State in determining a question of vital importance to the whole union of States than the constituent body upon whom the Constitution has devolved the duty to count the vote?” Id., at 31.

So Democrats in Congress could have forced the issue regarding Florida's disputed votes--novel, if unconvincing arguments, about the ECA's unconstitutionality notwithstanding--though obviously there would have been political consequences in the unlikely event that the GOP House and an evenly split Senate chose to reject the slate of Electors [also see OH in 2004].  But the point is that nothing's official until Congress agrees it is (there was considerable angst among some Framers who expected the House to almost always elect the President).

Now imagine a wacky scenario if NPV were operating this year:

  • Republicans retain the House and flip enough seats to take the Senate.
  • Obama wins the Popular Vote by Al Gore's razor thin margin.
  • Romney wins VT by a few hundred ballots, but our Electoral Votes go to Obama because of NPV [Obama wins PV in all other NPV states].
  • Obama secures a bare Electoral College victory.  
  • Jan 6th rolls around and the new GOP Congress challenges VT's votes as not "regularly given" per the ECA and throws them out.
  • Now lacking a majority winner, the Republican-ruled House votes for Romney in the mandated contingency election.

Before anybody objects to this hypothetical (please do so in writing with a Representative and Senator signing), is it any weirder than the 1800 election that gave us the 12th Amendment, or the 1876 election that gave us our current vote counting procedure (or 1824, 1888, or 2000 for that matter)?  Especially considering the great lengths a rabid GOP is clearly willing to go to so that Obama cannot govern, let alone win in 2012?

The Framers failed to anticipate how elections would work post-George Washington.  Today, a clunky system like NPV could lead to greater problems than it solves, with results that are perceived as even less legitimate.  Amending the Constitution to do away with the College altogether would obviate a number of issues while creating fewer unknowns.

What gives me greatest pause about NPV isn't even its practicality or constitutionality per se, but the fact that we have a legitimate mechanism in place to uniformly and less-revocably change the system (subsequent Legislatures can easily drop out of/join in the agreement, making each election less predictable and arbitrary on a state-by-state basis).  That makes this interstate compact different from others, wherein states are simply executing their nominal powers and need/have no other recourse in the Constitution.

Granted, myriad electoral reform amendments have failed since the 12th.  The bar to fundamentally alter our supreme laws is reasonably high, and rightly so.  I suspect before we can get rid of the College, we'll need a number of other changes first, including something to address campaign financing and perhaps some alternative choice voting methods at the state level.

Probably for me the strongest argument in favor of NPV is not so much that it can deliver an approximation of a true popular vote, rather that if enough states do adopt it to trigger the rules, there might be a bandwagon effect as non-compact states find themselves at a potential disadvantage electorally.  That might then clear the way for an actual amendment in the long run.

But in the meantime, there could be some really wild elections that actually circumvent the will of the People, with disastrous consequences.  I'm not so sure I'm willing to take the risk--anything that can go wrong, etc--when we have a system that works fairly well, generally conferring legitimacy on winners and allowing the Republic to continue functioning.


Show a little "yuhyoohappy" during the NTodd Ain't Ann Romney Fundraiser *

June 12, 2012 in Constitution, Schmonstitution | Permalink


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Well, it's impressive that Bush/Cheney managed to violate the 12th amendment before they even took office (unlike the 1st, 4th, 5th, 8th, Habeus, and some other stuff..did they ever get around to violating the 3rd? Hmm). Clearly, those long-ago founder dudes forgot to include 'enforcement' provisions.

Just toss Cheney in prison, and we'll call it even.

Your caution in EV reform is commendable, given the history of the past 20 years.

Posted by: Snarki, child of Loki | Jun 12, 2012 8:47:12 AM

The current state-by-state winner-take-all method of awarding electoral votes (not mentioned in the U.S. Constitution, but since enacted by 48 states), ensures that the candidates, after the primaries, will not reach out to about 76% of the states and their voters. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind.

Presidential candidates concentrate their attention on only a handful of closely divided "battleground" states and their voters. There is no incentive for them to bother to care about the majority of states where they are hopelessly behind or safely ahead to win. 9 of the original 13 states are considered “fly-over” now. In the 2012 election, pundits and campaign operatives agree, that, at most, only 12 states and their voters will matter. They will decide the election. None of the 10 most rural states will matter, as usual. About 76% of the country will be ignored --including 19 of the 22 lowest population and medium-small states, and 17 medium and big states like CA, GA, NY, and TX. This will be more obscene than the 2008 campaign, when candidates concentrated over 2/3rds of their campaign events and ad money in just 6 states, and 98% in just 15 states (CO, FL, IN, IA, MI, MN, MO, NV, NH, NM, NC, OH, PA, VA, and WI). Over half (57%) of the events were in just 4 states (OH, FL, PA, and VA). In 2004, candidates concentrated over 2/3rds of their money and campaign visits in 5 states; over 80% in 9 states; and over 99% of their money in 16 states.
More than 2/3rds of the states and people have been merely spectators to presidential elections. They have no influence. That's more than 85 million voters, 200 million Americans, ignored. When and where voters are ignored, then so are the issues they care about most.

The number and population of battleground states is shrinking as the U.S. population grows. As of March 10th, some pundits think there will be only Six States That Will Likely Decide The 2012 Election

“The presidential campaigns and their allies are zeroing in mainly on nine swing states, bombarding them with commercials in the earliest concentration of advertising in modern politics. “
“no recent general election advertising strategy has covered so little ground so early. In the spring of 2000, George W. Bush and Al Gore fought an air war in close to 20 states. In early 2004, there were the “Swing Seventeen.” And in 2008, the Obama campaign included 18 states in its June advertising offensive, its first of the general election.”
“The fall promises to bring wall-to-wall advertising” in the handful of swing states remaining.
“With so many resources focused on persuading an ever-shrinking pool of swing voters . . the 2012 election is likely to go down in history as the one in which the most money was spent reaching the fewest people.”

Policies important to the citizens of ‘flyover’ states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

A candidate has won the Presidency without winning the most popular votes nationwide in 4 of the nation's 56 (1 in 14 = 7%) presidential elections. The precariousness of the current state-by-state winner-take-all system of awarding electoral votes is highlighted by the fact that a shift of a few thousand voters in one or two states would have elected the second-place candidate in 4 of the 13 presidential elections since World War II. Near misses are now frequently common. There have been 6 consecutive non-landslide presidential elections (1988, 1992, 1996, 2000, 2004, and 2008). A shift of 60,000 voters in Ohio in 2004 would have defeated President Bush despite his nationwide lead of over 3 million votes.

Posted by: oldgulph | Jun 12, 2012 1:48:53 PM

I'm still not convinced that the NPV will force a candidate to visit Vermont. And I do wish people would stop including the 1824 election in the count of "wrong" winners, given there was no universal popular vote in the states at that time. It makes me think supporters of NPV are trying to put their finger on the scale.

Posted by: NTodd Pritsky | Jun 13, 2012 4:17:07 PM

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