By Rob Richie
Published May 17th 2009 in San Diego Union-Tribune
The Electoral College is understandably the single-most disliked feature of the American Constitution.
As implemented by states today, it is an antiquated anachronism that violates fundamental principles of representative democracy. It weights votes differently based on where they are cast, makes the national popular vote irrelevant and creates opportunities for partisans to game the system through changing the rules governing how votes are counted and how electoral votes are allocated. Left unchanged, our Electoral College system promises to deepen political inequality, with a damaging impact on small states, young voters, urban America, people of color and all the Americans living outside swing states.
A broken system
Consider these facts about our broken system from FairVote's 2009 edition of Presidential Election Inequality:
Of 300 major-party presidential campaign events tracked by The Washington Post between Sept. 5 and Nov. 4, 2008, 57 percent took place in the four large swing states of Ohio, Florida, Pennsylvania and Virginia. As tracked by CNN from Sept. 24 through Election Day, 55 percent of all presidential campaign ads aired in those same four states.
More than 98 percent of all campaign events and all campaign spending in the fall took place in 15 states that collectively represent only 37 percent of the nation's eligible voter population, effectively sidelining two-thirds of all Americans.
Voter turnout in those 15 states was 6 percent higher than the rest of the country. In 2004, young eligible voters under 30 were a third more likely to vote in the 10 closest states, and all of the 10 states with the greatest rate of decline in youth turnout since 1972 were spectator states.
According to one of its key strategists, Matthew Dowd, George Bush's campaign for re-election did not poll a single person who lived outside one of 18 potential battleground states for the final 30 months of the campaign.
Trends are making this inequality worse. Consider that:
In 1960, 24 states with a total of 319 electoral votes were swing states – meaning states within a 47 percent-53 percent partisanship band in a nationally even year. Using this same swing state definition, in 2008 there were only nine swing states with a total of 115 electoral votes.
In trends partly obscured by Barack Obama's 7 percent victory in the national popular vote, four recent battleground states (Michigan, Wisconsin, New Mexico and Missouri) trended to being spectator status in a future election in which the major-party vote was evenly divided. Only one state (Indiana) moved from noncompetitive status to being a potential battleground.
In 1960, nine states with a total of 64 electoral votes were considered firm “spectator” states, with a partisanship of more than 58 percent for one party. In 2008, this number was 26 states with 277 electoral votes.
In the 1976 presidential election, 73 percent of African-Americans were in a classic swing-voter position: they lived in highly competitive states (won by less than 5 percent) in which African-Americans were at least 5 percent of the population. By 2000, that percentage of potential African American swing voters had declined to just 17 percent.
The average difference in partisanship between the 10 most Republican and 10 most Democratic states has widened from 16 percent in 1988 to 27 percent in 2004 and 29 percent in 2008 – a gulf between states that can only be bridged in presidential elections by making every vote equal.
An alternative plan
Instead of this debased method of election, every American voter should have equal power to hold their president accountable through a national popular vote for president. With popular vote elections governing how we elect every governor and member of Congress, we know what such elections look like. As the vote totals rise on election night, voters know that their votes are counted on an equal basis with everyone else and that, when all the counting is done, the candidate with the most votes will win.
The National Popular Vote plan provides our best opportunity to achieve this goal. Laid out in detail at nationalpopularvote.com, the plan is based on two powers granted to states under the Constitution. First, states have exclusive power to decide how to allocate electoral votes – one characterized by the Supreme Court as “supreme” and “plenary.”
Initially, few states awarded all electoral votes to the statewide vote winner – several, in fact, didn't even hold popular elections. It was not until Andrew Jackson's presidency that the winner-take-all unit rule became the norm, driven by states' partisan parochial incentives to give as many votes as possible to one candidate. The unit rule isn't in the Constitution, wasn't intended by the framers of our Constitution and is most certainly not in the best interests of our nation.
Second, states have the constitutionally protected power to enter into formal, binding agreements. There are hundreds of examples, including the Port Authority and the Colorado River Compact.
Fewer than 1,000 words, the National Popular Vote compact establishes that participating states will award all of their electoral votes to the slate of the candidate who wins the national popular vote in all 50 states and the District of Columbia. It is activated if – and only if – the participating states collectively have a majority of votes in the Electoral College.
States enter the compact one by one, passing a statute through regular legislative channels. If by July 2012, states adopting the compact collectively have a majority of electoral votes (currently 270 of 538), the agreement is set in stone for the year, and the White House is guaranteed to the candidate who wins the popular vote. Electoral votes would still elect the president and the total number of electoral votes won by a candidate might vary based on which states are in the compact, but no one would focus on electoral vote margins. All attention before and after the election would be on the popular vote. Gone would be the red-blue maps on election night and the early projections of winners while Western states are still voting. Every voter would count the same, whether it is cast in Maine, Alaska, Texas or Florida.
NPV plan advances
Since the plan's launch by National Popular Vote in 2006, it has passed into law in Hawaii, Illinois, Maryland, New Jersey and Washington. Bills have been introduced in 48 states and earned the votes or sponsorship of more than 1,700 legislators. Endorsers include The New York Times, Los Angeles Times, Common Cause, the NAACP, columnists E.J Dionne and Hendrik Hertzberg and former members of Congress Tom Campbell, R-Calif., Jake Garn, R-Utah, John Anderson, R-Ill., and Birch Bayh, D-Ind.
With media interest beginning to rise, the proposal's popularity will keep growing. In polls taken by National Popular Vote since the 2008 elections, the number of citizens supporting a national popular vote for president reflects landslide support in a full range of states, including 68 percent in Colorado, 78 percent in Florida, 75 percent in Iowa, 73 percent in Michigan, 69 percent in New Hampshire, 72 percent in Nevada, 74 percent in North Carolina and 78 percent in Pennsylvania.
The last time the nation had a similar focus on reforming the Electoral College was in 1969-70, after several congressional hearings, a controversial election in 1960 and concerns about the impact of independent candidate George Wallace on the 1968 election. National support for a national popular vote reached 80 percent in Gallup polls, and a proposed constitutional amendment to abolish the Electoral College won the votes of 81 percent of U.S. House members, including future Presidents Gerald Ford and George H.W. Bush. It faltered in the Senate only because of parliamentary procedures denying majority support for change.
The case for reform is even stronger today. In the 1960s, far more states were contested, and there was more fluctuation in voting patterns. We are better prepared for a national popular vote, with more uniform voting standards and patterns of participation.
Objections to the NPV plan generally fall into three categories: (1) defense of the current Electoral College system, with a kind of magical thinking that the success of the United States is connected to the Electoral College; (2) belief that the “right way” to replace the current system is by amending the Constitution; (3) support for alternative reform approaches.
Defenders of the current Electoral College present a grab-bag of arguments. They suggest fairer elections for president might undermine federalism despite the fact that the NPV plan doesn't diminish state powers under the Constitution or have any impact on the U.S. Senate. They argue that the United States in the 21st century is incapable of fairly administering close popular vote elections, despite the examples of large states such as Texas and California and large nations such as Brazil. They warn that third parties would start having a much bigger impact despite the lack of evidence from the thousands of statewide popular vote elections for governor and U.S. Senate. They argue that candidates would only spend time in big population states and cities even though the numbers show such a strategy would be a losing formula.
Those touting a constitutional amendment present a false choice, as many National Popular Vote advocates support both it and amendment strategies. Certainly the winner-take-all unit rule system used by most states is not “more constitutional” than the National Popular Vote plan; it's just the status quo that was adopted by the 1830s and one that as implemented today would shock our Founders, who wanted all states to have a meaningful role in presidential elections. States nearly always have taken the lead in advancing a more representative democracy, including in expanding suffrage rights to women and people without property and establishing popular election of U.S. senators. Even if the compact is established by state laws rather than federal law, Congress would have the power to establish rules to resolve any administrative concerns, such as how to conduct recounts.
Alternate reform approaches can have zealous advocates, but are either dead in the water politically or unlikely to meet the goals of voter equality and majority rule.
As one example, FairVote's review of allocating electoral votes by congressional district shows that if established nationally, it would have an extreme partisan bias. Both congressional district allocation and proportional allocation of electors within states would keep many states sidelined – and trying to pass these reforms state by state is problematic and prone to partisan gaming of the national rules.
Other novel approaches perhaps could be tried for local and state offices, but for presidential elections a straight-up one person-one vote election is the only reform that is tested and meets voters' expectation of transparency and popularity.
With a national popular vote, presidential campaigns would seek votes everywhere in a true 50-state effort. Every vote – in every corner of every state – would be equal. Americans could get involved in presidential campaigns in their own communities.
The bottom line is that candidates for our one national office should have incentives to speak to everyone, and all Americans should have the power to hold their president accountable. Only a national popular vote will do. Now, with the National Popular Vote campaign, we have a sensible road map for change.
Richie has been executive director of FairVote (formerly the Center for Voting and Democracy) since its founding in 1992. He is co-author of “Every Vote Equal: A State-Based Plan For Electing The President By National Popular Vote" and "Reflecting All of Us.” He can be reached at rr(at)fairvote.org.