This year Colorado voters will decide whether to join the interstate compact to award the state’s electoral votes for president to the winner of the national popular vote. Maybe.
The first complication is that the compact takes effect only if enough other states sign on to achieve a majority of electoral votes. That may never happen. (Wikipedia has a nice summary of how this works.)
The second complication is that the measure in question, Prop. 113, clearly violates Colorado’s Constitution, as David B. Kopel and Hunter Hovenga persuasively argue. The state Constitution plainly says “the electors of the the Electoral College shall be chosen by direct vote of the people.” Prop. 113 seeks to override the Constitution with a statute to nullify the vote of Colorado’s people if most people elsewhere vote otherwise.
It’s worth pausing to emphasize what this means if it’s allowed: If Colorado voted 70–30 in favor of Candidate A, but the country as a whole voted 51–49 in favor of Candidate B, Colorado’s electoral votes for president would go to Candidate B. Which is crazy. But back to the legal analysis.
Anyone who knows anything about government knows that papering over the Constitution with a statute is a huge no-no. If you want to change something in the Constitution, you need to amend the Constitution.
But there is a possible complication with this second complication. I think a plausible reading of the federal Constitution renders Colorado’s constitutional language about the “direct vote of the people” invalid. After all, the federal Constitution (Article II, Section 1) says that “each state shall appoint” electors “in such manner as the legislature thereof may direct.” (Now state legislatures choose to follow the popular vote.)
And yet another complication: The interstate compact violates the federal Constitution by exceeding the states’ delegated power, or so argues constitutional scholar Rob Natelson.
So Prop. 113 actually should say something like the following: “Shall Colorado join an interstate compact to hand Colorado’s electoral votes for president to the winner of the national popular vote, if enough other states also join the compact, which probably won’t happen, and provided that state courts do not throw out the measure on grounds that it violates the state Constitution, unless federal courts rule that the state Constitution violates the federal Constitution on this point, unless federal courts rule that the interstate compact violates the federal Constitution anyway?”
In other words, a vote for Prop. 113 is a vote for a gigantic and expensive legal fiasco. This is basically a make-work project for lawyers. Hopefully the slew of lawsuits won’t coincide with a hotly contested presidential election that takes place with the compact activated. This could make “hanging chads” look like springtime flowers.
Let’s pretend, for a moment, that the national popular vote scheme attracts enough states to go into effect and passes constitutional muster. Then we must contend with the danger that a close national popular vote easily could trigger a major constitutional crisis. This wouldn’t be a problem if one candidate got a large and clear majority without serious allegations of voter fraud. But what if the two leaders (or even three leaders) were within a few thousand votes of each other nationally? With today’s system, such problems, if they occur, are localized. A national popular vote would mean that each state would have a strong incentive first to inflate its vote totals and second to litigate other states’ results. This could rip the country apart. (Natelson discusses some of these problems.)
Let’s take a step back and look at the bigger picture. Even if Prop. 113 isn’t the right way to fix the Electoral College, is there a good way? Opponents of the Electoral College typically argue that it is inherently undemocratic, and therefore bad, and that the particular ways that the Electoral College functions today is destabilizing. “The Electoral College will destroy America,” a recent New York Times op-ed breathlessly proclaims.
My position is that the Electoral College is inherently a good thing but that its functioning can be vastly improved with some sensible, although far-reaching, reforms.
Throwing the presidential election to the national popular vote would be a really bad idea, even if it were political feasible, even aside from the problems already discussed. This claim probably seems counterintuitive to most people today. Shouldn’t all the people of the United States vote for the president of the United States with straight-up majority rule? To grasp why the answer is no, you need to attend to two important principles of American governance: federalism and the separation of powers.
In the narrow sense, the separation of powers in the United States refers to the split of the federal government (and our state government) into the legislative, judicial, and executive branches, which by design act to check and balance one another. More broadly, the separation of powers also involves many other complex sorts of checks on and balances of government actors. Popular voting checks the abuses of political elites just as elite representation checks mob rule. Federalism, the split of power among the states and the federal government, functions as an extremely important way to separate and balance powers.
The particularly federalist Electoral College, as it developed over time with dominantly “winner-take-all” rules (and now with “faithful electors“)—wherein all of a state’s electoral votes go to the winner of the state’s popular vote—functions as another important means to disperse power. What this does is ensure a president cannot win without broad support across much of the country. A candidate cannot win with wild support in a few states but minority support most places.
Imagine a stylized version of a federalist, winner-take-all Electoral College to see both the virtues and the problems with our actual system. If 50 states had exactly the same number of people and voters, and hence the same number of electoral votes, a candidate would win a two-way race by appealing to 51% (or more) of voters in 26 states. (Actually it’s 50%-plus-one, but I’m simplifying.) This would ensure that the winner has broad support across most of the country.
On the other hand, in a national popular vote system, someone could literally lose the popular vote in 49 states but dominate in a single state to win. (Practically to a win a candidate would have to dominate at least a few states.) Who would likely make the better president of a large and diverse nation: someone with broad support in most states, or someone with wild support in just a few states? The question answers itself. And that in a nutshell is why the electoral college is awesome and why we should fight to preserve it.
A good analogy here, as I and others have noted, is to a best-of-seven (or best-of-five) sports championship. To win the championship, a team has to win the most games, and it just doesn’t matter which team scores the most points overall. If one team dominates in the first game but the the other team barely wins the rest of the games, the second team wins the championship, even if the first team scores the most points overall. Winning the electoral college is winning a best-of-fifty competition. If you win the most votes across 26 states (in our simplified example), you win, and the overall popular vote is as irrelevant as the overall score in the Stanley Cup playoffs or the World Series.
So there’s no inherent problem with our Electoral College; it’s a wonderful thing in and of itself. The problem is that the population differences between states has become so dramatic that, combined with the two-senators-per-state system (where the number of state electors is equal to the total number of Senators and House members), the Electoral College system has gotten out of balance.
The solution is not to destroy the Electoral College system, which isn’t politically feasible anyway. The solution is to bring greater parity to states’ electoral votes. This can be done either by splitting up the most-populated states into smaller states or by dramatically increasing the number of House members—or, preferably, by enacting both reforms. Each of these reforms would be wonderful in other ways besides improving the functioning of the Electoral College.
Far-and-away the most-populated state today is California, with over 39.5 million people. (I’m using Wikipedia’s numbers here.) California has 53 House members, plus 2 Senators, so it has 55 electoral votes for president. As Wikipedia says, that amounts to one electoral vote for (around) every 718,000 people. At the other end, Wyoming has fewer than 600,000 people, only a single House member, and hence 3 electoral votes. That amounts to one electoral vote for (around) every 193,000 people. Put another way, a vote for president in Wyoming is radically more powerful than a vote for president in California. So there’s a reason why people are pissed off about this.
The fundamental problem here is not the Electoral College; the problem is that some states have way, way, way too many people for our system of federalism to function well. The solution is to break up California into much smaller states. Then the Region Formerly Known as California would gain more Senators and hence more electoral votes. Then the Electoral College would work more like the stylized system that we considered earlier.
Part of the virtue of federalism is that states can compete with each other and experiment, so breaking up California would be a good thing in other ways. The only people this would be bad for are power-hungry California state politicians, who love their fiefdom and don’t want to see power devolve more to the people.
Obviously we should also break up Texas into smaller states. I don’t have any firm lines drawn here, but my sense is that fifteen million people in a single state is too many, and maybe ten million is a better upper limit.
The other move that would provide more parity in the Electoral College is to dramatically expand the size of the House of Representatives. This is supposed to be the people’s house. But how many people actually personally know their representative? As Natelson noted a couple years ago when I addressed this issue, “I think we are way overdue for increasing the size of the House substantially. The number of 435 Representatives was set in 1911, when our population was 90 million.”
If you are concerned about the voting disparities of the Electoral College, then advocate reforms that would actually fix the underlying problems. Prop. 113 is a sham endorsed by unserious people who want to pretend they care about “democracy” while doing nothing to actually improve our system of government.
If you’re not talking about splitting up the most-populated states or expanding the size of the House, you’re just pretending.
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