By Katrina vanden Heuvel
Published May 14th 2009 in The Nation
Quick: When did we elect the President last year? If you said November 4th, you're more than a month off. Try December 15th. That's when the electoral college convened in each state to formally ‘elect' Barack Obama president. Despite overturning the popular vote in 2000, efforts to establish direct election of the president– which would require amending the Constitution – have been unable to gain traction in Congress. Now two election reform organizations, relative newcomer National Popular Vote and the more established FairVote, have a promising proposal to use the electoral college for the very end it was intended to circumvent.
On April 28th, Washington became the fifth state in the nation to enact legislation in favor of a national popular vote for president. "Being a blue state since '88, in the primary cycle we draw some attention, but in the general election we draw very little attention from the national campaigns," says State Senator Joe McDermott, the prime sponsor of the bill in the Washington state Senate and a former elector himself. "National Popular Vote would blow that open. Whether the Democrat won by 52 or 57 percent would make a difference nationally. Assuming Washington was still a blue state, what the margin was suddenly becomes important."
When it comes to how electors are awarded, all the Constitution has to say on the matter is that: "Each state shall appoint, in such a manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the state may be entitled in Congress."
The plan for direct election of the president first advanced by National Popular Vote (NPV) is nothing short of ingenious: Instead of awarding electors by Congressional district (as both Maine and Nebraska do) or by state, states would award their electors to the winner of the popular vote in the country as a whole. This would only go into effect once states representing a majority of electoral votes had passed similar legislation. With Washington joining Maryland, New Jersey, Illinois, and Hawaii, we're about a quarter of the way to transforming the way we elect a president.
"We seem to have a national election for president, but when you look under the hood you realize it's really just an election by a handful of states," says NPV Chairman John Koza. "Every vote is not equal. We have a system where votes in certain states and certain years are very important, and two-thirds of the voters every year are basically ignored." A report by FairVote bears this out: even in an election in which the political map seemed to be transformed, just ten – or a fifth – of the states enjoyed almost 90% of campaign events. Almost half those events took place in a mere three states: Florida, Ohio, and Pennsylvania. Rob Richie, FairVote's executive director, is succinct on this disparity: "Big state, small state – it's all swing state versus spectator state."
A report from the Nonprofit Voter Engagement Network describes in stark detail how lopsided this contest is: 95 percent of the $495 million the candidates, parties, and interest groups spent on TV advertising in the final six weeks of the campaign went to 15 battleground states. More than half that prodigious sum was shoveled into Ohio, Florida, Pennsylvania, and Virginia alone. And voters respond: voter turnout in those same 15 swing states averaged seven points higher than voter turnout in the spectator states. Whether that's driven merely by their swing state status or the increased attention it brings from the campaigns, the states that the electoral college favors are those most closely divided along partisan lines.
"The Electoral College system fails to realize some fundamental principles of what representative democracy should be about," says FairVote's Richie. "One is that every voter's participation should be equal and that the candidate with the most votes wins. That I'm of equal weight with someone who lives in Florida. And right now I'm not." In 2008, Florida was second only to Ohio, with 15% of campaign events being held in the state. "Equality needs to be at the core of democracy, but the current system just throws it out the window."
The last time there was a serious effort to dissolve the electoral college was in the late ‘60s, when a proposed Constitutional amendment made it through the House but not the Senate. The elections of 1960 and 1968 both saw a fair amount of chicanery in the electoral college; during the former electors in Alabama, Oklahoma, and Louisiana all attempted to deny John F. Kennedy (the "labor Socialist nominee" in the words of one Republican elector) the presidency. In 1968, one ‘faithless' Republican elector went so far as to cast his vote for unrepentant segregationist George Wallace instead of Richard Nixon (a move that remains legal).
The history of the electoral college is intertwined with that of slavery and segregation. While the college itself was adopted as much if not more out of political compromise than anti-democratic principle, it effectively imported the three-fifths compromise (under which slaves were counted as three-fifths of a person for the purposes of distributing seats in the House) into the selection of the president. "That was intended. That certainly was something of which the Southerners were very much aware," says George C. Edwards III, a scholar of the presidency and author of Why the Electoral College is Bad for America.
As Alexander Keyssar noted in a keen analysis published in the New York Review of Books, with the 15th Amendment and the subsequent collapse of Reconstruction (the result of a deal bartered through the electoral college), the South effectively came to enjoy a five-fifths advantage, as African-American men were counted as citizens but effectively denied the right to vote. And the electoral college continues to frustrate attempts to exercise voting power today; Rob Richie observes that in 1976, 3 out of 4 African-Americans lived in states where they made up 5 percent of the electorate, and therefore constituted a swing vote. Today, as Edwards observes, "There's a lot of blacks concentrated in the deep south. Their votes are basically irrelevant, because they can't be aggregated across the country."
NPV's Koza reports that national popular vote legislation already has sponsors in all 50 states; over the last four years bills have passed 27 separate legislative chambers in 17 states. Some of this support has even come from battleground states, with chambers in Michigan, Nevada, New Mexico, and Colorado all passing a version of the bill. National polls have consistently shown support in the 60-70% range for direct election of the president.
Even with this broad support, governors in Vermont, Rhode Island, and California have vetoed the legislation, suggesting those states are out of reach for the moment (Schwarzenegger killed the bill not once but twice). Nor is it certain that the legislation will retain the ground it has gained: in Washington the opposition is attempting to gather the roughly 120,000 signatures necessary to force a public referendum in November. At the same time New Mexico, Colorado, and Massachusetts have all come close to joining the states which have rallied behind a national popular vote.
In New Mexico, a lesser swing state in 2008, [[at #12 on FV's list of battlegrounds]] State Representative Mimi Stewart sponsored national popular vote legislation that passed the House but not the Senate during this year's session. "I think it'll be fairly easy to pass the national popular vote out of the House again," Rep. Stewart says. "Our work really is in the Senate." She's hopeful that Governor Bill Richardson will make the bill a priority for the legislature's 2010 session.
In Colorado, the State Senate passed a bill twice in previous sessions only to see it die in the House; this year State Representative Andy Kerry sponsored a version of the bill that finally passed the House only to see it die in the Senate. "I've carried bills dealing with renewable energy, education, all sorts of things," says Rep. Kerr. "When I go to my town hall meetings and make appearances around the state – this is the bill people talk about. Ten years ago, most people couldn't tell you what the electoral college was, let alone how it worked. Since the election of 2000 especially, but 2004 as well, people are starting to understand better that in the 21st century the winner-take-all system that 48 of the states have really isn't in the best interests of the country." Although the Colorado state legislature has ended its 2009 session, Rep. Kerr plans to reintroduce the bill, perhaps as early as 2010.
With 12 electoral votes, Massachusetts would be a significant victory for a national popular vote. In the 2007-2008 session, the bill nearly made it to the governor's desk. "Massachusetts has changed the way it apportions its electors eleven times in its history," says State Representative Garrett Bradley, who sponsored the legislation in the House. "I never understood the electoral college, even in school. When I try to explain it to my 9-year-old, I can't do it. If I can't explain it to my kids, then something's wrong. I can't explain how the person with the most votes doesn't win." He continues: "Nobody ever campaigns in Massachusetts. They only come here for money; they know we're going to vote Democratic. Let's get it back in play."
FairVote's Rob Richie believes a national popular vote is "very much in play for 2012," and John Koza agrees with him. Richie argues it would remake the political map: "There's value in a long-term investment in the infrastructure of participation. Parties will have greater incentive to build themselves and make their case over time, and in all parts of the country."
It's a vision of a country in which there are no spectator states or swing states, in which volunteering is just as relevant in New York, California,Texas or Alabama as in Ohio, Pennsylvania, Florida or Virginia,and in which every vote is finally equal.