Imagine this: Americans could pick the President by direct
national election, in 2004 and beyond, without formally amending our
Constitution.
A small number of key states-eleven, to be precise-would suffice
to put a direct election system into effect. Alternatively, an even
smaller number of key persons-four, to be exact-could approximate
the same result, with a little help from their friends.
How Key States Could Implement Direct National Election
Begin with the key-state scenario. Article II of the Constitution
says that "each state shall appoint, in such manner as the
Legislature thereof may direct" its allotted share of
presidential electors. Each state's legislature thus has discretion
to direct how state electors are appointed.
The legislature is free simply to name these electors itself. It
is likewise free to direct by law that electors be chosen by direct
popular state vote, winner-take-all. This is what almost all states
do today.
So too, each state legislature is free to direct that its
state electors be chosen by direct popular national vote. Each
state could pass the following statute:
This state shall choose a slate of electors loyal to the
Presidential candidate who wins the national popular vote.
(Technically, the legislature does not award electoral votes as
such, but rather picks from competing slates of electors who have
announced in advance their loyalty to particular candidates.)
The eleven most populous states together now have 271 electoral
votes, one more than the 270 votes needed to win (out of a total of
538). Thus, if all eleven passed this statute, the presidency would
go to the candidate who won the national popular vote.
For those who are counting, the eleven states are California
(with 55 electoral votes after the 2000
census), Texas (34), New York (31), Florida (27), Pennsylvania
(21), Illinois (21), Ohio (20), Michigan (17), New Jersey (15),
Georgia (15), and North Carolina (15).
There is nothing magical about these eleven states; advocates of
direct national election need not draw the poker equivalent of a
royal flush. If some of the big eleven were to opt out, their places
could be filled by any combination of smaller states with as many
total electoral votes. We highlight the number eleven merely to
illustrate how few states would be needed, in theory, to effectuate
direct national election.
It's worth pausing to let this soak in. Under the Constitution's
Article V, a constitutional amendment providing for direct national
election would as a practical matter require two-thirds support in
the House of Representatives, a two-thirds vote in the Senate, and
the further support of thirty-eight state legislatures.
Thus, under the Constitution, any thirteen states-perhaps the
thirteen tiniest-could block an Article V amendment. In contrast,
our hypothetical plan could succeed even if as many as 39 states and
Congress (which directs how the District of Columbia's 3 electors
are to be chosen) opted out.
Moving From Unilateral to Coordinated State Action
If the eleven biggest states were to pass our law, an odd
theoretical possibility would arise: A candidate could win the
presidency, by winning the national popular vote, even if he or she
lost in every one of these big states! (Imagine a scenario where the
candidate narrowly loses in each of these states, but wins big most
other places.) Should this theoretical possibility deter big states
from passing our law?
After all, the current electoral college landscape reflects an
effort by virtually every state to maximize its own clout, by
awarding all of its electoral votes to the candidate that wins the
state, rather than dividing its electoral votes proportionately
among candidates. Take New Jersey, with its 15 electoral votes. A
proportional-voting New Jersey would have only 3 electoral votes
truly at stake--the difference between a 9-6 blowout victory and a
6-9 blowout defeat. This would make New Jersey no more important
than a tiny winner-take-all state like Wyoming (offering either a
3-0 win or a 0-3 defeat). A winner-take-all New Jersey means not 3,
but 15 electoral votes are at stake, so candidates must pay more
attention to the state.
For New Jersey to abandon winner-take-all when Wyoming and almost
all other states are retaining it would be the electoral equivalent
of unilateral disarmament. A similar concern might discourage New
Jersey from unilaterally embracing our proposed national popular
vote law-this too, is a form of unilateral disarmament, telling a
candidate not to worry about winning votes in New Jersey. Indeed, a
candidate could lose New Jersey's popular vote badly and still get
all its electoral votes by winning nationwide. Even worse, New
Jersey would be unilaterally disarming with no assurance that the
presidency would in fact go to the national popular vote winner;
acting alone, New Jersey cannot guarantee that its 15 would be
enough to put the national vote winner over the 270 mark.
But New Jersey need not act unilaterally. Its law could provide
that its electors will go to the national vote winner if and only if
enough other states follow suit. Until that happens, New Jersey and
every other likeminded state could continue to follow current
(self-aggrandizing) methods of choosing electors. Thus, our new
model state law would look something like this:
This state shall choose a slate of electors loyal to the
Presidential candidate who wins the national popular vote, if and
only if other states, whose electors taken together with this
state's electors total at least 270, also enact laws guaranteeing
that they will choose electors loyal to the Presidential candidate
who wins the national popular vote.
Acting in this coordinated way, a group of largish states adding
up to 270 would not really be disarming themselves. Although it is
theoretically possible for a candidate to win a national vote while
losing in all (or almost all) of the big states, this is an
unrealistic scenario. In general, candidates would tend to lavish
attention on most big states because there are lots of voters in
these states. As a practical matter, one can't win nationally
without winning, or at least coming very close, in various populous
states.
Should expressly coordinated state laws of the sort we are
imagining be deemed an implicit interstate agreement requiring
congressional blessing under Article I, section 10 of the
Constitution? Probably not. After all, each state would retain
complete unilateral freedom to switch back to its older system for
any future election, and the coordinated law creates no new
interstate governmental apparatus. Indeed, the cooperating states
acting together would be exercising no more power than they are
entitled to wield individually. (The matter might be different if
the coordinating states had sought to freeze other states out-say,
by agreeing to back the candidate winning the most total votes
within the coordinating states as a collective bloc, as opposed to
the most total votes nationwide.)
How to Create a More Uniform System of Presidential Voting
Of course, any coordinated state-law effort would require
specifying key issues: Majority rule or plurality rule? Runoff or
no? How should recounts and challenges be handled?
It would be hard to rely completely on the laws and courts of
each state, many of which might not be part of the cooperating 270
group. For example, the national vote might be close even though the
state vote in some noncooperating state was not, and that state
might refuse to allow a state recount. Indeed, a noncooperating
state might theoretically try to sabotage the system by refusing to
allow its citizens to vote for president! What if some state let 17
year-olds vote in an effort to count for more than its fair share of
the national total? And what about Americans who live abroad or in
the federal territories?
These questions suggest an even more mind-boggling prospect: our
national-vote system need not piggyback on the laws and machinery of
noncooperating states at all! Let these noncooperating states hold
their own elections, but so long as they amount to less than 270
electors, these elections would be sideshows. The cooperating states
could define their own rules for a uniform "National
Presidential Vote" system. In that case, our law would read
something like this:
Section 1. This state shall choose a slate of electors loyal to
the Presidential candidate who wins the "National Presidential
Vote," if and only if other states, whose electors taken
together with this state's electors total at least 270, also enact
laws guaranteeing that they will choose electors loyal to the
Presidential candidate who wins the "National Presidential
Vote."
Section 2. The "National Presidential Vote" shall be
administered as follows. . . .
Section 2 of this model law would proceed to specify the precise
rules of this "National Presidential Vote." For example,
Section 2 could provide that Americans everywhere who want to be
counted must register in a system to be administered by a
nongovernmental election commission-made up, say, of a panel of
respected political scientists and journalists (not unlike the
newspaper consortium that recently announced its tallies of the
Florida vote). Section 2 could also specify uniform rules of voting
eligibility, uniform presidential ballots, and an election dispute
procedure (with the final appeals decided by, say, Jim Lehrer).
Alternatively, Section 2 might contemplate that the "National
Presidential Vote" should be administered by a new interstate
election council or directly by the federal government; and Congress
could then pass a statute blessing this more elaborate interstate
agreement.
Some will doubtless dismiss all this as mere academic
daydreaming, but the daydreams are useful in illustrating how much
constitutional creativity is possible within the existing
constitutional framework, short of formal amendment. (In an article
in the Spring, 2001 issue of The Green Bag, Northwestern Professor
Robert Bennett pursues a similar thought experiment.)
Asking Candidates About the Electoral College - and Binding
Them To Their Word
Here is a final daydream. What if the two leading presidential
contenders in 2004 were asked about their views of the electoral
college? After election 2000, this seems a perfectly sensible
question: it is not purely theoretical to worry about electoral
college misfires of various sorts. A question about the legitimacy
of the electoral college is one of many questions the candidates
should be asked by Jim Lehrer on the News Hour or at a debate.
If candidates believe in the college, they should be prepared to
give their reasons. If they seek to duck the question as overly
hypothetical, they should be pressed. And if they express
disapproval of the system, and pledge allegiance to the principle of
one person, one vote, then they should be asked if they are willing
to put their principles into action. For the two major
presidential candidates and their two running mates have it within
their power to move us to direct national election.
A candidate could pledge that, if he loses the national popular
vote, he will ask his electors to vote for the national popular vote
winner. Having taken this pledge, the candidate could then challenge
his rival to take a similar pledge. Each candidate could likewise
insist that his Vice Presidential running mate take the pledge.
Presumably, the candidates' handpicked electors would honor their
respective candidates' solemn pledges when the electoral college
met; but if not, each candidate and running mate could further
pledge to resign immediately after Inauguration in favor of the
national popular vote winner.
The candidates themselves can make their pledges stick via the 25th
Amendment, which allows a President to fill a vacant vice
presidency. Suppose for example that Smith somehow is inaugurated
even though Jones won the national vote. On Inauguration Day,
Smith's Vice Presidential running mate would resign immediately.
Smith would then name Jones the new Vice President under the 25th
Amendment, and upon Jones's pro-forma confirmation by Congress-he
is, after all, the man with the mandate in our hypothetical-Smith
would step down in favor of Jones.
If this scenario seems odd, it is useful to recall that it is not
that different from the one that made Gerald Ford President in 1974:
Vice President Spiro Agnew resigned, and then was replaced by Ford,
who in turn became President upon Richard Nixon's resignation.
Another analogy: Beginning with George Washington, who resigned
after eight years even though he would have easily won a third term,
early Presidents gave America a strong tradition of a two-term limit
on the presidency.
Likewise, presidential candidates today could, via pre-election
pledges and (if necessary) post-Inauguration resignations, establish
a strong tradition that the presidency should go to the person who
actually won the national election. Just as the informal two-term
limit ultimately became specified in constitutional text, in the
Twenty-Second Amendment, so too a series of candidate pledges could
eventually pave the way for a formal direct election amendment.
And all it would take to get the ball rolling is for four persons
to take the pledge in 2004. Imagine that.
Controversial
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