Is America Ready to Finally Elect Presidents by Popular Vote?

By Matt Taylor

Bizarre 2012 electoral college proceedings in Massachusetts. Photo via Flickr user Governor Deval Patrick

US presidential elections are frequently the butt of jokes worldwide, and deservedly so. Between the eye-popping fundraising totals, the awkward pandering to billionaires, and the shameless jockeying for the support of key interest groups in weird places like Iowa and New Hampshire, there's a lot to hate.

Much of this can be blamed on the electoral college. Instead of simply counting votes nationwide and giving the Oval Office to the guy or gal with the most ballots, America holds 50 statewide elections, then awards points called "electors" to the winner of each election. It's a confusing system that makes winning 51 percent of the votes in California more than ten times as valuable as winning 100 percent of the votes in Nebraska, and gives special status to the few swing states that could go either way. Standard practice nowadays is for candidates to camp out in the dozen or so of these key states, which enjoy special status because their cities are surrounded by dense, conservative suburbs that balance out the votes of liberal urbanites. This means millions of voters are effectively stuck on the margins of political life, and thanks to our system we risk disaster every four years.

George W. Bush's incredible non-victory in 2000—which came, of course, thanks to an assist from his dad's pals on the Supreme Court—may be the the most recent example, but it doesn't even scratch the surface of the twisted intrigue that the electoral college has encouraged over the years. After the 1876 election saw the electors go one way and the popular vote the other, the "compromise" that was reached set the stage for a flood of Jim Crow laws and racial terrorism into the American South, as a key concession from the Republicans was to remove occupying federal troops that had been in the former Confederate states since the Civil War.

Never one to pass up an opportunity to pander to idealistic young voters who think this sort of thing is ridiculous, earlier this month Governor Andrew Cuomo of New York signed a bill into law making his state the 11th in the country to join the National Popular Vote (NPV) compact, which supporters expect to soon pave the way for the demise of the electoral college.

The idea is that if states comprising a majority of electoral votes (the magic number is currently 270) pass laws agreeing to award their share to the winner of the national popular vote as soon as a sufficent number of other states have done the same thing, the reluctance of federal lawmakers to overhaul what many believe to be an absurdly archaic system would instantly be rendered irrelevant.

That Cuomo was able to get lots of Republicans on board with the idea might lead you to think this is a bipartisan cause. But all of the states on the NPV bandwagon have one thing in common: They lean Democratic, or are so-called "Blue States." Which presents a pretty big problem if you want to get to the threshold that you'd need to make nationwide changes to the system.

"Republicans have this perception out of the 2000 presidential election that the electoral college favors them," said Michael McDonald, an expert on voter behavior at George Mason University. "Now the truth of the matter is, who knows? In 2004 Republicans were very worried [John] Kerry was going to win the electoral college and lose the popular vote."

That, obviously, did not happen. Spooked by his party's popular vote meltdown in 2000, infamous GOP strategist Karl Rove made sure Evangelical turnout ramped up in safely Republican states like Georgia in order to bolster their national margin, and Bush secured re-election by a healthy three million votes.

The reformist thinking, as captured by the New Yorker's Hendrik Hertzberg's recent blog post on the subject, holds that the electoral college skews voter intent by making most of us a sideshow, and leads to the TV airwaves being flooded in those states unfortunate enough to be closely divided. He dreams of a more democratic America where money's influence is dispersed across the 50 states and presidential campaigns are about winning over the entire country rather than some angry steelworkers in Ohio. Experts agree a truly national eleciton would probably increase turnout, as those of us living in predictable states like Texas and California would suddenly have a motivation to head to the polls.

Lost in all of this is that most Republicans, according to surveys, feel the same way about the electoral college as the rest of the planet. But elite signaling by GOP powerbrokers—who tend to decry reform proposals as tantamount to a left-wing coup d'état—inevitably seems to turn them against the idea whenever it comes up on their territory. Even so, Oklahoma's senate passed the NPV this winter (it's currently stuck, waiting for the state house to act).

Despite the palpable sense of momentum, it's tough to see this playing out as electoral college foes might like.

"We're reaching the upper limit of where this NPV compact can go at the moment," McDonald told me, before throwing in a warning: "If you don't like money in politics now, you would not like what would have to happen for a national popular vote plan."

His fear is that nationwide campaigns would be even more dominated by money, as expensive TV ad markets in coastal cities like San Francisco and New York would require huge investments from campaigns, which would leave them with less to spend on grassroots organizing. Inevitably, candidates would have to raise even greater amounts of cash than they do now, and dozens of new super PACs would crop up on both sides to help buoy the official campaigns.

Making things extra complicated is that some constitutional scholars question whether the NPV is even legal.

"The proposed NPV compact is plainly unconstitutional for a reason that has received very little attention," Daniel H. Lowenstein of the UCLA School of Law wrote me in an email. "The legislature has plenary authority to select a means by which the state selects electors. The legislature is not authorized to select a means by which someone else, such as the Pope, or the Queen of England, or the United Nations General Assembly, or a majority of voters in the United States can select electors."

So don't go getting your hopes up for an end to this system any time soon. Besides, the obscenity of the electoral college is arguably a distraction from more urgent problems like corruption, which may not be baked into the Constitution but always, somehow, seems to find a way.

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