Count 'EmBy Hendrik Hertzberg
Published February 27th 2006 in The New Yorker
Last Thursday morning, in one of the smaller function rooms at the
National Press Club, in Washington, an ad-hoc bunch of amateurs,
once-weres, might-bes, and goo-goos floated an initiative that, with a
little luck, could enable our ramshackle republic to take a long, and
long overdue, step toward a more perfect union. The idea behind their
initiative is this: that the President of the United States should be
elected by the people of the United States.
This idea is neither new nor outlandish, but for most of the past couple of centuries it has been dismissed as unachievable. The Electoral College is enshrined in the Constitution itself, so getting rid of it would require the concurrence of two-thirds of both houses of Congress plus three-quarters of the state legislatures. That�s not going to happen.
But maybe it doesn�t have to. The promoters of the Campaign for a National Popular Vote, as they�re calling themselves, have come up with an elegant finesse. Instead of trying to change the Constitution, they propose to apply it, one bit in particular: Article II, Section 1, which instructs each state to �appoint� its Presidential electors �in such Manner as the Legislature thereof may direct.� Here�s how the plan would work. One by one, legislature by legislature, state law by state law, individual states would pledge themselves to an interstate compact under which they would agree to award their electoral votes to the nationwide winner of the popular vote. The compact would take effect only when enough states had joined it to elect a President�that is, enough to cast a majority of the five hundred and thirty-eight electoral votes. (Theoretically, as few as eleven states could do the trick.) And then, presto! All of a sudden, the people of all fifty states plus the District of Columbia are empowered to elect their President the same way they elect their governors, mayors, senators, and congressmen. We still have the Electoral College, with its colorful eighteenth-century rituals, but it can no longer do any damage. It becomes a tourist attraction, like the British monarchy.
There is very little doubt about the constitutional and legal feasibility of this plan. The power of state legislatures to direct the choice of their states� electors, the Supreme Court has repeatedly ruled, is essentially unlimited. As the Court pointed out in one well-known case,
the State legislature�s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. (Bush v. Gore, 2000)
The political feasibility of the plan is another matter. Its initial backers are middleweights at best. Its originator is a scientist�John R. Koza, a Stanford professor who teaches courses in genetic algorithms and made a small fortune by co-inventing the rub-off instant lottery ticket. At Thursday�s press conference, a few representatives of the media�s wonkish fringe (Congressional Quarterly, Roll Call, C-Span) heard mostly from formers: John Anderson, a former Republican congressman from Illinois (and 1980 independent Presidential candidate); Birch Bayh, a former Democratic senator from Indiana; and John Buchanan, a former Republican congressman from Alabama. Former Representative Tom Campbell, of California, and former Senators Jake Garn, of Utah, and David Durenberger, of Minnesota�Republicans all�have also signed on. The presence of so many Republicans is a deliberate choice, designed to counter suspicions that a Democratic plot is afoot. But, in reality, no one has the slightest idea which party, if either, would benefit. It�s true that George W. Bush�s court-certified five-hundred-and-thirty-seven-vote edge in Florida trumped Al Gore�s half-million-vote national plurality in 2000. But it�s also true that Bush�s three-million-vote majority in 2004 would have been vaporized by a switch of sixty thousand votes in Ohio.
On the other hand, in only one of the past twenty-nine Presidential elections has the winner of the popular vote not also been the winner of the electoral vote. So why not stick with an arrangement that, since 1888, has �worked� ninety-seven per cent of the time? Because the deepest argument for a national popular vote has nothing to do with who wins. It has to do with the over-all health of a democratic order.
As has become increasingly clear over the past few general elections, with their red states and blue states, an American Presidential campaign is no longer truly national. It takes place almost exclusively in the purple states�the �battleground states,� where neither party can be sure of a lock. In 2004, there were thirteen such states, accounting for twenty-eight per cent of the population (and thirty-two per cent of the ultimate vote, since turnout increases with the uncertainty of the outcome). In the final month, the candidates spent $237 million on advertising, $229 million of it in those thirteen states. (In twenty-three states, they didn�t spend a dime.) At the same time, President Bush, Vice-President Cheney, Senator Kerry, and Senator Edwards attended a total of two hundred and ninety-one campaign events. Two hundred and sixty-eight of them were in the lucky thirteen.
There�s a traditional view that without the Electoral College Presidential campaigns would simply ignore the small states. It hasn�t worked that way. The real division that the Electoral College creates, in tandem with the winner-take-all rule, is not between large states and small states but between battleground states and what might be called spectator states. Of the thirteen least populous states, six are red, six are blue, and one�New Hampshire�is up for grabs. Guess which twelve Bush and Kerry stiffed and which one got plenty of love, long after the primary season? Size doesn�t matter. At the other end of the spectrum, the three biggest states�blue California, red Texas, and blue New York�were utterly ignored, except for purposes of fund-raising.
That�s not the worst of it, though. After all, some people might count it a blessing to be spared the October onslaught of thirty-second spots and traffic jams caused by self-important motorcades. The worst of it is the death of participatory politics in two-thirds of the country. If you live in a spectator state, it might be fun to persuade your neighbors to vote your way, or ring their doorbells, or hand them leaflets. But it can�t make a difference. And it doesn�t matter which side you�re on or which color your state is. Widening your ticket�s margin of victory or narrowing its margin of defeat is equally pointless. In this sense, our Presidential campaigns are not only not national; in most of the country they�re not local, either. They�re just not.
For fifty years, polls have consistently shown that seventy per cent of the public favors direct election. Nevertheless, the National Popular Vote plan will meet with a lot of resistance, some of it from battleground-state politicians. But in all those spectator states there are scores of millions of voters, and thousands of politicians, who would like to get in on the game. They might prefer to see our Presidents elected not by red states and blue states and purple states, and not by big states or small states, but by the United States. Last Friday, a bill went into the hopper of the Illinois legislature. We�ll see.
This idea is neither new nor outlandish, but for most of the past couple of centuries it has been dismissed as unachievable. The Electoral College is enshrined in the Constitution itself, so getting rid of it would require the concurrence of two-thirds of both houses of Congress plus three-quarters of the state legislatures. That�s not going to happen.
But maybe it doesn�t have to. The promoters of the Campaign for a National Popular Vote, as they�re calling themselves, have come up with an elegant finesse. Instead of trying to change the Constitution, they propose to apply it, one bit in particular: Article II, Section 1, which instructs each state to �appoint� its Presidential electors �in such Manner as the Legislature thereof may direct.� Here�s how the plan would work. One by one, legislature by legislature, state law by state law, individual states would pledge themselves to an interstate compact under which they would agree to award their electoral votes to the nationwide winner of the popular vote. The compact would take effect only when enough states had joined it to elect a President�that is, enough to cast a majority of the five hundred and thirty-eight electoral votes. (Theoretically, as few as eleven states could do the trick.) And then, presto! All of a sudden, the people of all fifty states plus the District of Columbia are empowered to elect their President the same way they elect their governors, mayors, senators, and congressmen. We still have the Electoral College, with its colorful eighteenth-century rituals, but it can no longer do any damage. It becomes a tourist attraction, like the British monarchy.
There is very little doubt about the constitutional and legal feasibility of this plan. The power of state legislatures to direct the choice of their states� electors, the Supreme Court has repeatedly ruled, is essentially unlimited. As the Court pointed out in one well-known case,
the State legislature�s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by State legislatures in several States for many years after the Framing of our Constitution. (Bush v. Gore, 2000)
The political feasibility of the plan is another matter. Its initial backers are middleweights at best. Its originator is a scientist�John R. Koza, a Stanford professor who teaches courses in genetic algorithms and made a small fortune by co-inventing the rub-off instant lottery ticket. At Thursday�s press conference, a few representatives of the media�s wonkish fringe (Congressional Quarterly, Roll Call, C-Span) heard mostly from formers: John Anderson, a former Republican congressman from Illinois (and 1980 independent Presidential candidate); Birch Bayh, a former Democratic senator from Indiana; and John Buchanan, a former Republican congressman from Alabama. Former Representative Tom Campbell, of California, and former Senators Jake Garn, of Utah, and David Durenberger, of Minnesota�Republicans all�have also signed on. The presence of so many Republicans is a deliberate choice, designed to counter suspicions that a Democratic plot is afoot. But, in reality, no one has the slightest idea which party, if either, would benefit. It�s true that George W. Bush�s court-certified five-hundred-and-thirty-seven-vote edge in Florida trumped Al Gore�s half-million-vote national plurality in 2000. But it�s also true that Bush�s three-million-vote majority in 2004 would have been vaporized by a switch of sixty thousand votes in Ohio.
On the other hand, in only one of the past twenty-nine Presidential elections has the winner of the popular vote not also been the winner of the electoral vote. So why not stick with an arrangement that, since 1888, has �worked� ninety-seven per cent of the time? Because the deepest argument for a national popular vote has nothing to do with who wins. It has to do with the over-all health of a democratic order.
As has become increasingly clear over the past few general elections, with their red states and blue states, an American Presidential campaign is no longer truly national. It takes place almost exclusively in the purple states�the �battleground states,� where neither party can be sure of a lock. In 2004, there were thirteen such states, accounting for twenty-eight per cent of the population (and thirty-two per cent of the ultimate vote, since turnout increases with the uncertainty of the outcome). In the final month, the candidates spent $237 million on advertising, $229 million of it in those thirteen states. (In twenty-three states, they didn�t spend a dime.) At the same time, President Bush, Vice-President Cheney, Senator Kerry, and Senator Edwards attended a total of two hundred and ninety-one campaign events. Two hundred and sixty-eight of them were in the lucky thirteen.
There�s a traditional view that without the Electoral College Presidential campaigns would simply ignore the small states. It hasn�t worked that way. The real division that the Electoral College creates, in tandem with the winner-take-all rule, is not between large states and small states but between battleground states and what might be called spectator states. Of the thirteen least populous states, six are red, six are blue, and one�New Hampshire�is up for grabs. Guess which twelve Bush and Kerry stiffed and which one got plenty of love, long after the primary season? Size doesn�t matter. At the other end of the spectrum, the three biggest states�blue California, red Texas, and blue New York�were utterly ignored, except for purposes of fund-raising.
That�s not the worst of it, though. After all, some people might count it a blessing to be spared the October onslaught of thirty-second spots and traffic jams caused by self-important motorcades. The worst of it is the death of participatory politics in two-thirds of the country. If you live in a spectator state, it might be fun to persuade your neighbors to vote your way, or ring their doorbells, or hand them leaflets. But it can�t make a difference. And it doesn�t matter which side you�re on or which color your state is. Widening your ticket�s margin of victory or narrowing its margin of defeat is equally pointless. In this sense, our Presidential campaigns are not only not national; in most of the country they�re not local, either. They�re just not.
For fifty years, polls have consistently shown that seventy per cent of the public favors direct election. Nevertheless, the National Popular Vote plan will meet with a lot of resistance, some of it from battleground-state politicians. But in all those spectator states there are scores of millions of voters, and thousands of politicians, who would like to get in on the game. They might prefer to see our Presidents elected not by red states and blue states and purple states, and not by big states or small states, but by the United States. Last Friday, a bill went into the hopper of the Illinois legislature. We�ll see.