Monday, January 23, 2017

The People Have Spoken?

“The people have spoken…the bastards.” – Dick Tuck, failed political candidate.

The presidential election of 2016 has, as is normally the case, it seems, resurrected the quadrennial debate over the American Electoral system (I have decided not use the term “Electoral College” because it is not historically accurate – nothing in the Constitution refers to such a body.  It’s merely a term of convenience – probably first used to draw an analogy to the Roman Catholic College of Cardinals,  which elects popes.).  For the second time in sixteen years, the winner of the popular vote for president did not earn the requisite number of electoral votes in order to be victorious.

People often wonder why our system of choosing a president is so cumbersome and seemingly undemocratic.  For a brief history on this unique institution, see my previous entry here.  People wonder if there is a better way of electing the president, and suggestions ranging from a direct election consisting of the nationwide popular vote to various modifications of the current electoral system (perhaps most notably encouraging states to split their electoral votes in a proportional manner similar to Nebraska or Maine, eliminating the winner-take-all sweepstakes as in all the other states) are regularly floated around election time.

I recently listened to one of my favorite podcasts, Your Weekly Constitutional, and the topic was this very thing - specifically, the National Popular Vote Initiative.  You can listen to this episode here.
In a nutshell, this movement is trying to establish a voluntary compact between states in which the states involved agree to cast their electoral votes for the candidate who wins the national popular vote, not necessarily who wins the most votes in their own state.  This compact would go into effect only when a sufficient number of states join so that their electoral vote totals would add up to at least 270, thereby ensuring that the national popular vote winner would also win the electoral vote.
As you can imagine, there are several pros and cons to a proposal like this.  Let me list a few on each side and encourage you, the reader, to weigh them and draw your own conclusions.


It would be more “democratic”.  The person who wins the most votes nationwide wins the election in all cases.

It eliminates the idea of “swing states”.  In the last election, both candidates concentrated their efforts in about a dozen states that were considered “in play”, while basically ignoring states they either knew they had locked up or had no chance of winning.  For example, Trump could basically skip campaigning in New York or California, knowing he had no chance there, and Clinton could all but ignore Texas or Tennessee for the same reason (and conversely, there was no practical reason for Trump to go to TX or TN or for Clinton to campaign in NY or CA).  So, most of the efforts of both candidates were focused on a relatively small number of states they knew they had to win in order to get to the magic number of 270 electoral votes.

It would not require a Constitutional amendment.  Each state is free to establish its own criteria for casting its electoral votes.  There is no Constitutionally-mandated method.  As mentioned above, Maine and Nebraska use a proportional system, not winner-take-all, and it’s perfectly legitimate of them to do so.

It would be voluntary.  Each state in the compact would have to agree to it.  No other entity, state or federal, can coerce a state to join (and presumably, each state would turn to its own citizens in some type of referendum in order to approve the plan).


It seems to be a solution in search of a problem.  We’ve had 58 presidential elections in our history and only five times has the popular winner not won the electoral vote.  That’s less than ten percent of the time – an outlying rarity in the big picture of things.

It would diminish the influence of less-populated states.  The Founders were very concerned about states and their place in the nation as a whole.  That’s why we have a bicameral Congress in which one chamber represents the people and one represents the states (remember, Senators were originally elected by state legislatures, not by popular vote).  States like Alaska and Wyoming, which wield a somewhat outsized electoral influence relative to their populations would see their “importance” in presidential elections diminish if all that mattered was the national popular vote.

Voters in certain states might feel disenfranchised if their electoral votes went opposite their state vote.  For example, in my home state of Wisconsin, the statewide vote went for Trump, but if Wisconsin were part of this compact, our electoral votes would have gone for Clinton, opposite the apparent will of the Wisconsin voters at large.

The states with the largest populations would have too much influence.  Again, going back to the recent election, Clinton’s popular vote margin was somewhere in the neighborhood of 2.5 million nationwide.  That also happens nearly identical to the margin of victory she enjoyed in California alone.  Do the rest of the states want one state to be the deciding factor?

Certainly, you readers can come up with other arguments for and against this idea, which, I should note, enjoys a fairly remarkable level of bipartisan support in certain areas, so it’s not just a “Democrats lost and so they want to change things” kind of scenario unique to this year.

Will this change happen?  Time will tell, of course.  Perhaps it will.  Perhaps another type of “reform” movement will gain momentum.  And perhaps the system we have will stay intact.  What say you?