The cure for the Electoral College that is worse than what ails us.
By Jamin Raskin
Published August 24th 2007 in Slate Magazine
It's hardly news at this point that, as it works today, the Electoral College undermines American democracy. It does so in three fundamental ways: First, it betrays the principle of majority rule, threatening every four years to deliver the White House to the popular-vote loser. Second, it reduces the general election contest to a matter of what happens in Ohio, Florida, and a handful of other swing states, leaving most Americans (who live in forsaken "red" and "blue" states) on the sidelines. This in turn depresses turnout and helps give us one of the worst rates of voter participation on earth. Third, because of its proven pliability, the Electoral College invites partisan operatives, legislators, secretaries of state and even Supreme Court justices to engage in constant strategic mischief and manipulation at the state level.
This last problem is about to make things much worse, as strategic actors try to exploit spreading discontent with the system by pushing "reform" proposals for purely partisan advantage. Thus, in California, top Republican strategists are now proposing a ballot initiative that would "reform" the system by awarding the state's electoral votes by congressional district. Its real purpose is to break up the state's 55 electors, which typically go to the Democrats in a bloc as inevitably as Texas, Georgia, and Oklahoma give their 56 combined electors to the Republicans. Following the proposed division of California's well-gerrymandered blue and red congressional districts, it is likely that the 2008 GOP nominee under this plan would carry away about 20 electors. In one fell swoop, this would ruin the Democrats' chances for winning the presidency.
This is very plainly not reform. It is tactical gamesmanship.
Save us the sermons about fairness on Fox News by carefully disguised "pro-reform" advocates. If this were truly just a fairer way to divide up electoral votes, why didn't Karl Rove and the highly placed political operatives behind this initiative choose to begin in the states in which they control the legislatures, like Texas, Alabama, or Utah?
I know. Don't hold your breath.
Citizens who are truly serious about transforming the Electoral College actually have a sturdy nonpartisan vehicle by which to move us to the kind of popular presidential election that citizens in nearly every other democracy enjoy. We don't need a new partisan trick to "fix" our presidential process. We need only enact the existing obvious solution.
The "National Popular Vote" plan, which is on the table in 47 states, has been signed into law in Maryland and had actually passed both houses in California in 2006 before it was vetoed by Gov. Arnold Schwarzenegger. It simply calls for an interstate compact among all states to agree to cast their electoral votes for the winner of the national popular vote. It becomes effective and binding when states representing at least 270 electors enter the compact. This is the way we will get to elect presidents as we elect governors and senators: everyone acting together, without games and subterfuge.
The plan has the backing of distinguished Republican statesmen like former Utah Sen. Jake Garn, former Minnesota Sen. David Durenberger, former Illinois Rep. John Anderson, former Alabama Rep. John Buchanan, and former California Rep. Tom Campbell, as well as distinguished Democrats like former Indiana Sen. Birch Bayh, and former New York Rep. Tom Downey. It has been endorsed by newspapers from the New York Times and Minneapolis Star-Tribune to the Los Angeles Times and Sacramento Bee.
As far as I can tell, the only thing the plan lacks is active support from Republicans in office. Indeed, for some reason, there is a constant undertow of opposition from the party. I know this because when I introduced the plan in the Maryland Senate, I had expressions of enthusiasm from several Republican colleagues, one of whom even voted for it in committee. But when it came to the floor, all of the Republicans voted against it. They claimed that it would hurt small states even though small states that are safely red or blue—like Rhode Island or Montana—are ignored today just like the large ones (such as New York or Texas). They said that we should stick with the handiwork of the Framers—even though the current Electoral College process is distant from the way it was practiced in the 18th century and even though the Constitution clearly empowers the states to appoint electors as we see fit, including on the basis of the national popular vote. On the House side, only one Republican supported the bill. It passed with overwhelming (but not unanimous) Democratic support.
We Maryland Democrats were not acting in a partisan spirit. The National Popular Vote plan will not necessarily help (or hurt) us. In small-d democratic fashion, it simply benefits that party whose presidential candidate best appeals to the majority of Americans in an election—that could be us or them. Several colleagues pointed out to me that, had John Kerry won another 60,000 votes in Ohio, he would have prevailed in the Electoral College but still lost the national popular vote by more than 3 million votes. My answer then was: So be it. The object here is not to get a Democrat elected president. It's to get the person with the most votes elected. Is democracy itself now a partisan idea?
The current system is arbitrary, accident-prone, and increasingly untenable. On that I can agree with the Republicans who back the California initiative. What I cannot accept is that a more convoluted system, undertaken by a single state for transparently political reasons, is the solution. It is time for the American people to elect the president directly and democratically. Let us give every American incentive to vote in an election in which every vote counts. Let us (finally) agree to stop playing strategic games and let the chips fall where they may with a national popular vote.
California voters of all stripes should reject this depressing power ploy by refusing to sign the petitions to put the question on the June ballot. If it does get on the ballot, I am hopeful that the National Popular Vote plan will be there, too. Petition-gatherers went out last week to give Californians the right to vote for the authentic reform that America needs.
Thomas Jefferson famously said: "We are all republicans, we are all federalists." Today, at least for the purposes of creating a national election for president in which every vote counts equally, we should all be Republicans and Democrats, Independents and Greens and Libertarians. Why not put aside political party just for a moment to see if we can still work together to create a more perfect union?
Jamie Raskin is a professor of constitutional law at American University and a Democratic state senator in Maryland representing Silver Spring and Takoma Park. He introduced the National Popular Vote plan that was signed into law by Gov. Martin O'Malley on April 10, 2007. He serves on the Senate's Judicial Proceedings Committee.