When one loses a contest perceived to have been “unfair,” the natural human instinct is to try to change the rules. That instinct is perilously close to harmfully affecting the conduct of our presidential elections.
Two separate efforts, the “national popular vote” (NPV) movement and Pennsylvania’s recent attempt to implement congressional district-based electoral voting (which I will call “CEV”), have gained traction. Both ideas recall a pithy phrase attributed to Ben Franklin in 1787 shortly after the Constitution’s adoption. When asked whether the Founders’ handiwork represented a republic or a monarchy, Franklin responded: “A republic, if you can keep it.” I contend that his response would have been the same if the question’s alternatives had been a republic or a democracy. Both NPV and CEV represent dangerous movements towards the latter at the expense of the former.
Democrats and the leftist media weren’t and still aren’t happy that Al Gore, despite tallying 544,000 more votes nationwide, lost to George W. Bush in the 2000 presidential election thanks to 537 votes in Florida. (A newspaper consortium’s study carried out by a national accounting firm showed that Bush really did prevail.) In 2004, if about 60,000 Ohioans had decided to vote for John Kerry instead of to reelect Bush, Kerry would have won despite Bush’s 3-million vote national margin.
In response to these results, eight blue states and the District of Columbia have agreed to an “interstate compact” whereby the presidential candidate who wins the popular vote will select participating states’ electors, regardless of who won each state’s popular vote. As written, the compact will take effect if states representing a majority of the country’s electoral votes agree to it. California joined the compact in August. Having rounded up a total of 132 electoral votes, NPV proponents are almost halfway there. If they get to 270, NPV supposedly becomes the law of the land, and the constitutionally designed presidential voting system effectively goes into history’s dustbin.
Why NPV-approving states believe that their compact presumptively passes constitutional muster is a mystery. True, Article II, Section 1 (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors”) gives the states exclusive control over how they award their electoral votes. But, going back to Franklin’s warning, does that mean they can base their decision on the Election Day temperature, the winner of an intrastate college football game, or even the flip of a coin? More seriously, do these legislatures and governors agree that deliberately overriding the majority of their own voters is what the Founders intended? Do they really believe that twenty or so states can lawfully conspire to take an action which contravenes the Constitution’s clear intent — namely that each state have its own, distinct say in the matter of who should be the nation’s president — without going through the deliberately more difficult process of amending the Constitution itself? I don’t think so.
At a more practical level, NPV could and probably would turn a close popular-vote election into the legal equivalent of hand-to-hand combat over qualified and disqualified votes in all 50 states and their 3,100 counties, a debacle which would make Florida 2000 look like a walk in the park. Beyond that, in the wake of NPV’s passage in California, Debra Saunders got most of the way towards raising a critical heads-we-win, tails-you-lose scenario:
What happens if enough states pass NPV compacts in time for the 2012 election and Californians go for President Barack Obama but the national vote swings to the Republican nominee by a tight margin?
Will Gov. (Jerry) Brown stand by the law, or will he refuse to support it, just as he refused to support Proposition 8, the voter-approved same-sex marriage measure, when he was the state’s attorney general?
Even if one believes that Brown wouldn’t defy an NPV compact if it delivers “bad” results, what’s to prevent him or any other governor from calling in the legislature to ram through a post-election law nullifying the compact before the Electoral College convenes?
Under CEV, electoral votes are assigned based on each congressional district’s popular-vote winner, while the two electoral votes tied to each state’s senators go to the overall statewide victor. Current practitioners Nebraska and Maine have never had a meaningful electoral impact. That would change if states like Pennsylvania, which is seriously considering CEV, make the move.