California's Wacky Electoral College Proposal
I heard about this on NPR the other day and found it intriguing. It's a proposal by the California legislature that would allocate all of California's Electoral College votes to the winner of the national popular vote (as opposed to the California popular vote, which is the current system). The article states that the legislation would become effective only if states with a combined vote count of 270 electoral votes did the same thing. Apparently Colorado, Illinois, Louisiana, and Missouri are considering similar legislation. If this eventually worked out, the winner of the national popular vote would be elected President and the Electoral College would essentially be eliminated apart from its formalisms.
This is obviously spurred by the 2000 election, when the debate over the legitimacy of the Electoral College gripped the nation mainly along partisan lines. Without the Electoral College, close presidential elections would largely be in the hands of the most populous states -- California, New York, and Texas. With the Electoral College, close elections are still largely in the hands of a few swing states. Either way, a handful of states wield disproportionate power in deciding who gets to be President. As a practical matter I think a system that chooses important states based on population is better than a system that chooses them based on purpleness (this coming, of course, from a life-long and committed resident of the great state of California).
But policy aside, is it constitutional? I've never studied Election Law, so I asked a colleague who had taken the course in law school. He said that he didn't study this sort of thing in Election Law, but did provide some valuable insights. He pointed out that states can't mandate how their Electors vote; state legislatures can only choose which Electors go to Washington. But he also pointed out that states currently choose the Democratic or Republican slate of Electors assuming they'll vote a certain way without forcing them to, so the statute could be workable on those grounds. He was also baffled at why any state other than California, New York, or Texas would go along with something like this. Finally, he made the observation that if the legislation is contingent upon a consortium of states with 270 votes, it would have to change after each census.
But this statute goes beyond changing the way electors are chosen and behave. It essentially eliminates the Electoral College system by allowing a consortium of do-gooder states to impose direct democracy by choosing the President based on the national popular vote. Could something like this happen without an actual Constitutional amendment? The reply was that we've already monkeyed around with the Electoral College without benefit of Constitutional amendments. The Electoral College as we know it today -- where electors are chosen based on statewide popular voting -- is a great deal different from the way it looked at the end of the eighteenth century. The fact that a change would have the substantive effect of removing all of the operative effects of the Electoral College shouldn't change that.
Okay, so it's constitutional. Back to policy. Is it a good idea? Armchair Justice says: YES!. The Electoral College strikes me as one of a number of compromises that was necessary to bring a series of would-be independent nation-states into a united federalist system (see the last clause of Article V of the U.S. Constitution for what is perhaps the most important compromise). It was a way of allowing smaller states to have more influence in the national election. That may have been a good idea back in the formative years of Our Nation, but it doesn't make a lot of sense today. There's no good reason for the President to be selected by other than a national popular vote.
But wouldn't this decrease the power of smaller states? Perhaps. If so, that's not a bad thing. A vote in California shouldn't be worth less than a vote in Wyoming simply because more people choose to live in California. Besides, as it stands now any state -- big or small -- only gets disproportionate influence in the Presidential election if it's a swing state. If California weren't reliably blue or reliably red, candidates would spend half their campaigns in the few hundred miles between San Diego and San Francisco.
I'd like to see this legislation come into effect, but it doesn't seem very likely.
This is obviously spurred by the 2000 election, when the debate over the legitimacy of the Electoral College gripped the nation mainly along partisan lines. Without the Electoral College, close presidential elections would largely be in the hands of the most populous states -- California, New York, and Texas. With the Electoral College, close elections are still largely in the hands of a few swing states. Either way, a handful of states wield disproportionate power in deciding who gets to be President. As a practical matter I think a system that chooses important states based on population is better than a system that chooses them based on purpleness (this coming, of course, from a life-long and committed resident of the great state of California).
But policy aside, is it constitutional? I've never studied Election Law, so I asked a colleague who had taken the course in law school. He said that he didn't study this sort of thing in Election Law, but did provide some valuable insights. He pointed out that states can't mandate how their Electors vote; state legislatures can only choose which Electors go to Washington. But he also pointed out that states currently choose the Democratic or Republican slate of Electors assuming they'll vote a certain way without forcing them to, so the statute could be workable on those grounds. He was also baffled at why any state other than California, New York, or Texas would go along with something like this. Finally, he made the observation that if the legislation is contingent upon a consortium of states with 270 votes, it would have to change after each census.
But this statute goes beyond changing the way electors are chosen and behave. It essentially eliminates the Electoral College system by allowing a consortium of do-gooder states to impose direct democracy by choosing the President based on the national popular vote. Could something like this happen without an actual Constitutional amendment? The reply was that we've already monkeyed around with the Electoral College without benefit of Constitutional amendments. The Electoral College as we know it today -- where electors are chosen based on statewide popular voting -- is a great deal different from the way it looked at the end of the eighteenth century. The fact that a change would have the substantive effect of removing all of the operative effects of the Electoral College shouldn't change that.
Okay, so it's constitutional. Back to policy. Is it a good idea? Armchair Justice says: YES!. The Electoral College strikes me as one of a number of compromises that was necessary to bring a series of would-be independent nation-states into a united federalist system (see the last clause of Article V of the U.S. Constitution for what is perhaps the most important compromise). It was a way of allowing smaller states to have more influence in the national election. That may have been a good idea back in the formative years of Our Nation, but it doesn't make a lot of sense today. There's no good reason for the President to be selected by other than a national popular vote.
But wouldn't this decrease the power of smaller states? Perhaps. If so, that's not a bad thing. A vote in California shouldn't be worth less than a vote in Wyoming simply because more people choose to live in California. Besides, as it stands now any state -- big or small -- only gets disproportionate influence in the Presidential election if it's a swing state. If California weren't reliably blue or reliably red, candidates would spend half their campaigns in the few hundred miles between San Diego and San Francisco.
I'd like to see this legislation come into effect, but it doesn't seem very likely.
posted by aj at 10:51 AM
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