Will Massachusetts and New York Join the Effort to End-Run the Constitution?

July 13, 2010   •  By IFS staff
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Some people seem intent on bending the rules—even constitutional rules—as far as they possibly can. And then some. They continue as long as they can make any kind of argument that they did not technically break the rules. Cracks, bruises, unintended consequences: any casualty is acceptable as long as they achieve their objective. For some, perhaps it is a grab at political power. For others, it is just a fun intellectual game. In either case, it is a destructive mindset that could undermine our republican democracy.

The latest of these battles is against the Electoral College. This effort began innocently enough several years ago when a few law professors were doing what some might say they do best: engaging in mental gymnastics, apparently just for the fun of it. Or maybe as a part of a continuing effort to see who can outdo the other, coming up with imaginative ways to legally do something that was supposed to be illegal. Could they come up with a way to eliminate the Electoral College without actually amending the Constitution?

These professors eventually landed on an idea. They imagined a scenario in which a handful of states would agree to allocate their presidential electors to the winner of the national popular vote. (Today most states allocate their electors to the winner of the state popular vote.) The 11 most populous states hold a majority of electoral votes and can determine the outcome of a presidential election. Thus, if they were to approve such a measure, the Electoral College would be essentially eliminated, replaced by a direct popular election. At the time, this author dismissed the plan as an imprudent scheme and an end-run around the Constitution that only a bunch of out-of-touch academics could love.

Such a common-sense assessment of the plan should have prevailed. Perhaps it still will, but recent events have unfortunately put the outcome in question.

A California-based group, National Popular Vote, has been working in recent years to make this academic daydreaming into reality. The movement has operated largely behind the scenes while the country is focused on BP, the economy, and healthcare. Thus, it has had some measure of success.

Five states have so far endorsed this ill-advised scheme to skirt the Constitution: Hawaii, Illinois, Maryland, New Jersey and Washington (61 electoral votes). The latest fronts in this battle are Massachusetts (12 electoral votes) and New York (31 electoral votes). The Massachusetts House and New York Senate have both approved the bills, so approval by the Massachusetts Senate and New York Assembly would send the measure to the states’ respective governors. Both states could act at any time. Three other state legislatures have approved NPV, although the bills were vetoed: California, Rhode Island, and Vermont (62 electoral votes). The Rhode Island House later rejected the measure. These latter states remain important because of a lawsuit that could be filed in an attempt to overturn the vetoes.

If each of these states is included, NPV could have as many as 166 electoral votes in favor of its scheme. It needs 270 to essentially eliminate the Electoral College. NPV is close to success, yet because of the manner in which it is seeking change, the vast majority of the country remains completely unaware that the presidential election system is so close to such radical change.

In effect, NPV’s architects have been too imaginative. They have convinced themselves that their path is in line with the Constitution, despite the fact that it leads in the exact opposite direction of the Founders’ vision.

First, the Founders intentionally created a high bar for constitutional amendments: the Constitution’s supermajority requirements were meant to ensure widespread awareness and acceptance of change. By contrast, NPV is taking the path of least resistance: Change is possible despite the fact that only a handful of states are on board and most voters have no idea the matter is being discussed.

Second, the Founders explicitly rejected direct popular elections for the president. Indeed, the small states probably would not have consented to the Constitution if such a presidential election process had been included. Yet NPV will put this system into place with or without the approval of most states. Surely such a step is a violation of the self-governing principles that we pride ourselves on.

NPV is bending and pushing the rules of constitutional construction as far as it possibly can. Have the rules technically been broken? In all likelihood, a court will be asked to decide this matter at some point in the future. In the meantime, the cracks, bruises and other unintended consequences of NPV’s scheme are already beginning to rear their head. For instance, as this author has detailed elsewhere, there is already good reason to believe that the logistics of presidential elections will become immensely difficult with NPV in place—even worse than if change were made by constitutional amendment. The country can’t conduct one coherent national election when there are 51 different sets of state and local election codes in place. Today, the variance among state election laws is irrelevant because each state (plus D.C.) need accomplish nothing more than elect its own slate of electors. In essence, Americans conduct 51 different elections and expect 51 different sets of results. NPV, by contrast, expects to smash these 51 sets of laws into one completely national result. It won’t work. Instead, the resulting chaos will make Florida 2000 look like a picnic.

NPV has introduced its proposal in most state legislatures, but the current battlegrounds are Massachusetts and New York. Indeed, the Massachusetts Senate could approve the measure as early as this week. Unfortunately, many of those legislators seem intent on enacting NPV because they have asked and answered one question for themselves: Do we want to eliminate the Electoral College? They have answered in the affirmative, too quickly dismissing the value of the Electoral College in a nation as diverse as our own.

Yet they need to remember that there is a second question that needs to be asked: Is NPV’s scheme the correct way in which to make such a radical change? An honest assessment of this second question requires a vote against NPV’s attempt to sidestep the Constitution.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College.

IFS staff

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