The End of the Electoral College?

What if we could eliminate the electoral college without amending the Constitution? What if it was already happening?

The National Popular Vote movement is trying to do just that, and surprisingly, it looks like there’s a reasonable chance they’ll succeed before the 2016 or 2020 election. But few people seem to know about it — I was unaware of it myself until recently — and I thought it might be helpful to review what’s going on. A national popular vote sounds like a pretty good idea to me, but as with my post on gay marriage, I’ll try to keep my own views out of it. Whether you’re for or against it, this is something worth knowing about.

How does it work?

It’s all based on a kind of legal trick. The Constitution gives each state the right to appoint its electors however it wants. So the NPV’s strategy is to introduce the same bill in each state legislature, a bill that says: instead of giving our electoral votes to the popular vote winner in our state, we’ll give them to the popular vote winner nationwide — but this only kicks in when enough other states have passed this bill that we add up to a majority in the electoral college.

There are 538 electoral votes in total, so it takes 270 (half plus one) for that to happen. Nine states totalling 132 electoral votes have already passed the bill, and it’s passed the lower house in twelve more.

Once the bill is passed by 270 electors’ worth of states, there’s no need for the remaining states to pass it: the electoral college system is effectively gone. The winner of the national popular vote will automatically win the Presidency, regardless of state-by-state results.

I think it’s fair to call this a “trick,” as I did above: it seems highly unlikely that the drafters of the Constitution considered anything like this possibility. But the fact that it’s a trick doesn’t mean it won’t work.

What would change?

It’s a mistake to think that this would only make a difference in the rare cases (like 2000) where the popular vote and electoral vote disagree. It would have a massive impact on every election. Without the need to win “swing states,” Presidential campaigns would be run differently from top to bottom, and not just in terms of where they spend their ad money or devote on-the-ground resources: as Hendrik Hertzberg points out in this interview, it would also change many of their policy positions and even which issues are on the table. For example: whatever you think of our Cuban trade embargo, you should realize that the main reason it still exists is that Florida is a swing state, and neither party wants to risk alienating the large Cuban-American exile population there, which is decidedly more pro-embargo than the rest of the country.

If you’re a liberal who likes that idea, well, you might not like some of the other effects. For example, industrial unions get a lot of power from their ability to turn out so many votes in midwestern swing states like Ohio. A national popular vote would probably reduce the already-declining influence of organized labor in Washington.

Who benefits?

The answer may vary from one issue to the next, but I think Democrats would come out a little ahead at the national level. And I’m obviously not alone, since it’s all blue states that have passed the bill so far, and almost all the opposition to the movement comes from conservative Republican groups like this one.

In that interview, Hertzberg downplays this, suggesting that Republican opposition is just a hangover from 2000, and that as the memory of that election fades, the NPV will come to draw equal support from both parties. I’m unconvinced, for at least three reasons. First, he says himself that a national popular vote would likely increase turnout, and conventional wisdom is that higher turnout is better for the left. Second, a popular vote tends to favor urban issues over rural ones, and urban areas also skew liberal. And third, entirely apart from the swing state effect, the electoral college exaggerates the power of voters in low-population states (since no state can have less than three electors) and those states are disproportionately red.

But at the state level, it’s much less of a partisan issue. It’s more about swing states vs. non-swing states. Large non-swing states like Texas, California and New York are completely ignored by Presidential campaigns (except for fundraising, of course) and that’s just as infuriating to Republicans in those states as it is to Democrats.

In a way, that’s the real trick of this strategy: it plays the Republican party off against itself. Republican politicians at the state level are facing a very different set of incentives on this issue than those at the national level.

Is it legal?

If and when this movement gets to 270 electoral votes, there will be multiple legal challenges that are very likely to reach the Supreme Court. It seems to me the strongest anti-NPV argument is that the Constitution forbids interstate compacts without Congressional approval. The Supreme Court has taken a lenient view of this requirement in the past, but that doesn’t mean it would do so again with the stakes this high.

Actually, my first thought on hearing about this plan was that if the states in this compact can allocate their electors to the national election winner, what’s to stop them from allocating their electors to the winner amongst themselves, thereby disenfranchising the rest of the country? This is obviously an unlikely scenario, but it’s a little troubling that it’s even possible. This white paper from a conservative think tank gets a little more hysterical about it:

Is this power of state legislators completely unrestricted? If it is, then Rhode Island could decide to allocate its electors to the winner of the Vermont election. In a more extreme move, New York could allocate its electors to the United Nations. Florida could decide that Fidel Castro always appoints its electors.

Well, let’s hope it doesn’t come to that. But even if this challenge stands, it doesn’t mean that the NPV bill is invalid, just that it has to be approved by Congress. And while that would probably be harder than the initial state-by-state process, it’s still far more plausible than a Constitutional amendment.

How soon could it happen?

It’s hard to tell. They’ve gotten halfway there in about five years, which is impressive. But some of that is probably because no one took them very seriously. From now on, every state that passes the bill will push it further onto the national stage and mobilize more and more serious opposition.

Again, the nine states that have passed the bill so far add up to 132 electoral votes, so they need to capture 138 of the remaining 407 to get over the top. How many ways could that happen?

Well, first of all, it’s hard to see any of the current swing states passing this bill, since it would mean giving up their current outsized influence. That’s about 100 electors off the table right there. Of the remaining ones, New York (29) and Oregon (7) seem like the safest bets. But that still leaves about 100 to go, and it’s pretty hard to see them getting there in the short term without Texas (38) — where they seem to have more or less gotten nowhere — or a coalition of smaller Republican-dominated states.

So overall, I’d say this is still a fairly partisan movement, in practice if not intent, and that’s likely the main thing holding it back. But as soon as you see this bill passed in a red state, even a light red one, it’s time to really start paying attention. After that tipping point, the rest could happen fast.