[Mb-civic] How we really elect 'em.

[George R. Milman]

 <http://www.newyorker.com/main/start/> 



COMMENT

COUNT 'EM

by Hendrik Hertzberg

Issue of 2006-03-06
Posted 2006-02-27

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.

 

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