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Unionizing The Electoral College

Gov. Martin O'Malley signs Maryland's Electoral College vote results for 2012 (detail)
The 2012 meeting of the Electoral College in, Annapolis, Md. Photo courtesy Maryland GovPics on Flickr.

Nobody “won” the popular vote in the 2016 presidential election, if by winning we mean getting a majority of the votes cast – but someone certainly led the vote totals, and that person is not going to become the 45th president of the United States.

Hillary Clinton garnered at least 1.5 million more votes than Donald Trump, giving her about 48 percent of the total to his 47 percent, according to the unofficial Associated Press tally in the days before Thanksgiving. But it is the 538 delegates to the Electoral College who will choose the next president in a few weeks, and Trump has more than enough pledged votes – at least 290, and more likely 306, assuming Trump holds on to a slim lead in Michigan. It takes 270 electoral votes to win the presidency.

Clinton racked up huge margins in urbanized coastal states, while Trump dominated – often in very close contests – in Florida, the Rust Belt, and from the Deep South through the Rocky Mountains. This is the fifth time a popular vote winner has lost the presidency, and the first since Al Gore – like Clinton, a Democrat – came up short in 2000.

Clinton’s blue-state backers are understandably upset. Recognizing the improbability of getting a constitutional amendment passed to abolish the Electoral College (it would take a two-thirds vote in each house of Congress, followed by ratification in three-quarters of the states), they have come up with a creative and characteristically blue-state alternative: They want to form an Electoral College union.

That’s my name for it, not theirs. Officially, it would be dubbed the National Popular Vote Interstate Compact. Proponents say it would work like this: First, you get states representing at least 270 votes to sign this contract, promising to deliver all their electors to whichever candidate wins the national popular vote – regardless of how that candidate performs in their own particular state. Once that happens, voila! The popular vote leader is guaranteed to win the presidency.

This idea isn’t new; it was dreamed up in 2006 by a pair of Yale Law School professors, according to the journalism site Politifact. Thus far, 10 states plus the District of Columbia have enacted laws to join the compact, representing 165 electoral votes. All of those states, not coincidentally, favored Gore in 2000 and Clinton in 2016. So the plan’s backers are on the home stretch. They just need 105 more electoral votes to achieve their goal, or so they think. Easy, right?

Sure. Just ask Al Gore and Hillary Clinton how easy it is to assemble a coalition of states representing 270 electoral votes.

Let’s set aside, just for a moment, whether abolishing or circumventing the Electoral College would actually be a good idea. I’ll come back to that. First, let’s look at the political realities in play – beginning with the fact that Hillary Clinton was far from the only Democrat to come up short in this year’s election. In fact, Democrats have been smoked by Republicans in federal and state races nationwide in three of the four elections since President Obama took office.

When Obama moved into the White House, his party held dominant majorities in both houses of Congress. They had total control of 27 state legislatures, to 14 for Republicans, with the others either nonpartisan or divided between the parties. There were 28 Democratic governors and 22 from the GOP.

After this year’s winners take power, Republicans will have control in 32 state legislatures, while Democrats will hold just 13. Twenty-four states will have Republican governors as well as GOP-controlled legislatures, mirroring the power dynamic at the federal level; Democrats will have complete control in a mere six states. There will be at least 33 Republican governors against either 15 or 16 Democrats, depending on how North Carolina’s disputed outcome is resolved, with one independent in Alaska. Many Democrats thought this was the year their party could make gains at the state level. It didn’t work out that way.

Does this sound like a formula for getting more states to sign their Electoral College union card? Of course not.

Forget the partisan divide for now. Is Texas likely to either make common cause with, or subordinate itself to, other big states whose economic, social and tax policies are radically different, such as New York and California? Is Florida going to sacrifice its position as a pivotal swing state to enhance the voting power of people in Manhattan or Seattle? Will the former industrial strongholds of the Midwest decide they would get more attention if they let voters on the coasts choose their next president? Not to mention all those less urbanized states that see themselves as having nothing in common with people who think policies on everything from rifles to bike lanes should be decided in Brooklyn and San Francisco.

Would you want to be the politician in any of those nonsignatory states who tells local voters that they need to be more considerate of people who trade backyards for rent control? I wouldn’t.

Now let’s turn to the arguments that the Electoral College is inherently undemocratic because it violates the principle of “one person, one vote,” which it certainly does.

Haven’t we just gone through a two-decade period in which many of us made the case that inherent rights should not be subject to the whims of transient majorities? That was the argument that we made when we asserted that marriage, regardless of gender, is a fundamental civil right. It is the case for defending unpopular speech, or to protect ethnic and religious minorities. Yes, we have majority rule in this country – but always within the limits of a system of checks and balances.

We also have a federal system that reserves powers not delegated to the federal government to the states and to the people. This is why we have a Senate that gives Montana the same number of senators as California, and it also is why we have the Electoral College. The Electoral College serves the same function in the executive branch that the Senate serves in the legislative branch.

Consider: To pass a law, you need approval by both houses of Congress, meaning the House of Representatives, where big-population states dominate, and the Senate, where smaller states get a disproportionate voice. You also need a presidential signature, or a supermajority to override a veto. A president chosen solely by popular vote would be the executive equivalent of a Congress consisting only of a House of Representatives.

Remember, under the Constitution’s “supremacy clause” (Article VI), “... the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby ...”

Everything that makes any state distinguishable from the major population centers, from minimum wages to right-to-work laws to renewable energy, is subject to override by federal statute. Absent the Electoral College, candidates who might be unacceptable to vast swaths of the nation could be imposed by people concentrated in small geographic areas who know little about the rest of America, and might care even less.

Maybe you think this is a fair outcome. Certainly, you have a point that Donald Trump himself is unacceptable to vast swaths of the population, even more so than Hillary Clinton, as demonstrated by the popular vote. But the Electoral College is what gives small-population states any sort of voice in the selection of their president; without it, they would likely be ignored. You can’t knit a vast nation together by unionizing one club of “ins” against another club of “outs” (sometimes referred to as “deplorables”).

It’s reasonable not to like the Electoral College, just as it is reasonable not to like the disproportionate attention that states like Iowa, New Hampshire, Nevada and South Carolina receive in the presidential primaries. But at least recognize that the system serves a purpose for all of us.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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8 Responses to "Unionizing The Electoral College"

  • O. Anthony
    November 28, 2016 - 1:26 pm

    The National Popular Vote bill would guarantee the majority of Electoral College votes and the presidency to the candidate who receives the most popular votes in the country. It does not abolish the Electoral College.

    The National Popular Vote bill would replace state winner-take-all laws that award all of a state’s electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states), in the enacting states.

    The bill retains the constitutionally mandated Electoral College and state control of elections, and uses the built-in method that the Constitution provides for states to make changes. It ensures that every voter is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

    Under National Popular Vote, every voter, everywhere, for every candidate, would be politically relevant and equal in every presidential election. Every vote would matter in the state counts and national count.

    The bill would take effect when enacted by states possessing a majority of the electoral votes—270 of 538.
    All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes in all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

    The National Popular Vote bill would give a voice to the minority party voters for president in each state. Now their votes are counted only for the presidential candidate they did not vote for. Now they don’t matter to their candidate.

    In 2012, 56,256,178 (44%) of the 128,954,498 voters had their vote diverted by the winner-take-all rule to a candidate they opposed (namely, their state’s first-place candidate).

    And now votes, beyond the one needed to get the most votes in the state, for winning in a state, are wasted and don’t matter to presidential candidates.
    Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004.
    Oklahoma (7 electoral votes) alone generated a margin of 455,000 “wasted” votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes).
    8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

  • O. Anthony
    November 28, 2016 - 1:29 pm

    Of COURSE Clinton “won” the national popular vote. She won the plurality of the votes cast. Winning the plurality of the vote is how every other election in the United States is determined.

  • O. Anthony
    November 28, 2016 - 1:32 pm

    With the current state-by-state winner-take-all system of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a bare plurality of popular votes in the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with less than 22% of the nation’s votes!

    A presidential candidate could lose, winning 78%+ of the popular vote and 39 states.

  • O Anthony
    November 29, 2016 - 1:10 pm

    Because of state-by-state winner-take-all laws, not mentioned, much less endorsed, in the Constitution. . .

    Policies important to the citizens of non-battleground states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

    “Battleground” states receive 7% more presidentially controlled grants than “spectator” states, twice as many presidential disaster declarations, more Superfund enforcement exemptions, and more No Child Left Behind law exemptions.

    Compare the response to hurricane Katrina (in Louisiana, a “safe” state) to the federal response to hurricanes in Florida (a “swing” state) under Presidents of both parties. President Obama took more interest in the BP oil spill, once it reached Florida’s shores, after it had first reached Louisiana. Some pandering policy examples include ethanol subsidies, steel tariffs, and Medicare Part D. Policies not given priority, include those most important to non-battleground states – like water issues in the west.

    The interests of battleground states shape innumerable government policies, including, for example, steel quotas imposed by the free-trade president, George W. Bush, from the free-trade party.

    Parochial local considerations of battleground states preoccupy presidential candidates as well as sitting Presidents (contemplating their own reelection or the ascension of their preferred successor).

    Even travel by sitting Presidents and Cabinet members in non-election years is skewed to battleground states

  • O Anthony
    November 29, 2016 - 1:10 pm

    Because of state-by-state winner-take-all laws, not mentioned, much less endorsed, in the Constitution. . .

    537 votes, all in one state determined the 2000 election, when there was a lead of 537,179 (1,000 times more) popular votes nationwide.

    Since World War II, a shift of a few thousand votes in one, two, or three states would have elected the second-place candidate in 5 of the 16 presidential elections

    In the 2012 presidential election, 1.3 million votes decided the winner in the ten states with the closest margins of victory.

    Candidates had no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they were safely ahead or hopelessly behind.

    With the end of the primaries, without the National Popular Vote bill in effect, the political relevance of 70% of all Americans was finished for the presidential election.

    In the 2016 general election campaign

    Over half (57%) of the campaign events were held in just 4 states (Florida, North Carolina, Pennsylvania, and Ohio).

    Virtually all (94%) of the campaign events were in just 12 states (containing only 30% of the country’s population).

    In the 2012 general election campaign

    38 states (including 24 of the 27 smallest states) had no campaign events, and minuscule or no spending for TV ads.

    More than 99% of presidential campaign attention (ad spending and visits) was invested on voters in just the only ten competitive states..

    Two-thirds (176 of 253) of the general-election campaign events, and a similar fraction of campaign expenditures, were in just four states (Ohio, Florida, Virginia, and Iowa).

    Issues of importance to non-battleground states are of so little interest to presidential candidates that they don’t even bother to poll them individually.

    Charlie Cook reported in 2004:
    “Senior Bush campaign strategist Matthew Dowd pointed out yesterday that the Bush campaign hadn’t taken a national poll in almost two years; instead, it has been polling [the then] 18 battleground states.”

    Bush White House Press Secretary Ari Fleischer acknowledging the reality that [then] more than 2/3rds of Americans were ignored in the 2008 presidential campaign, said in the Washington Post on June 21, 2009:
    “If people don’t like it, they can move from a safe state to a swing state.”

    Over 87% of both Romney and Obama campaign offices were in just the then 12 swing states. The few campaign offices in the 38 remaining states were for fund-raising, volunteer phone calls, and arranging travel to battleground states.

  • O Anthony
    November 29, 2016 - 7:48 pm

    Support for a national popular vote is strong in every smallest state surveyed in recent polls among Republicans, Democrats, and Independent voters, as well as every demographic group

    Among the 13 lowest population states, the National Popular Vote bill has passed in 9 state legislative chambers, and been enacted by 4 jurisdictions.

    Now political clout comes from being among the handful of battleground states. 80% of states and voters are ignored by presidential campaign polling, organizing, ad spending, and visits. Their states’ votes were conceded months before by the minority parties in the states, taken for granted by the dominant party in the states, and ignored by all parties in presidential campaigns.

    State winner-take-all laws negate any simplistic mathematical equations about the relative power of states based on their number of residents per electoral vote. Small state math means absolutely nothing to presidential campaign polling, organizing, ad spending, and visits, or to presidents once in office.

    In the 25 smallest states in 2008, the Democratic and Republican popular vote was almost tied (9.9 million versus 9.8 million), as was the electoral vote (57 versus 58).

    In 2012, 24 of the nation’s 27 smallest states received no attention at all from presidential campaigns after the conventions. They were ignored despite their supposed numerical advantage in the Electoral College. In fact, the 8.6 million eligible voters in Ohio received more campaign ads and campaign visits from the major party campaigns than the 42 million eligible voters in those 27 smallest states combined.

    The 12 smallest states are totally ignored in presidential elections. These states are not ignored because they are small, but because they are not closely divided “battleground” states.

    Now with state-by-state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), presidential elections ignore 12 of the 13 lowest population states (3-4 electoral votes), that are non-competitive in presidential elections. 6 regularly vote Republican (AK, ID, MT, WY, ND, and SD), and 6 regularly vote Democratic (RI, DE, HI, VT, ME, and DC) in presidential elections.

    Similarly, the 25 smallest states have been almost equally noncompetitive. They voted Republican or Democratic 12-13 in 2008 and 2012.

    Voters in states, of all sizes, that are reliably red or blue don’t matter. Candidates ignore those states and the issues they care about most.

  • O Anthony
    November 29, 2016 - 7:49 pm

    Voters in the biggest cities are almost exactly balanced out by rural areas in terms of population and partisan composition.

    16% of the U.S. population lives outside the nation’s Metropolitan Statistical Areas. Rural America has voted 60% Republican. None of the 10 most rural states matter now.

    16% of the U.S. population lives in the top 100 cities. They voted 63% Democratic in 2004.
    The population of the top 50 cities (going as far down as Arlington, TX) is only 15% of the population of the United States.

    Suburbs divide almost exactly equally between Republicans and Democrats.

  • O Anthony
    November 30, 2016 - 12:57 pm

    In Gallup polls since they started asking in 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states) (with about 70% opposed and about 10% undecided).

    Support for a national popular vote for President is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in every state surveyed recently. In the 41 red, blue, and purple states surveyed, overall support has been in the 67-81% range – in rural states, in small states, in Southern and border states, in big states, and in other states polled.

    Most Americans don’t ultimately care whether their presidential candidate wins or loses in their state or district . . . they care whether he/she wins the White House. Voters want to know, that no matter where they live, even if they were on the losing side, their vote actually was equally counted and mattered to their candidate. Most Americans think it is wrong that the candidate with the most popular votes can lose. We don’t allow this in any other election in our representative republic.

    The National Popular Vote bill was approved this year by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).
    Since 2006, the bill has passed 34 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Maine (4), Michigan (16), Nevada (6), New Mexico (5), North Carolina (15), and Oklahoma (7), and both houses in Colorado (9).
    The bill has been enacted by 11 small, medium, and large jurisdictions with 165 electoral votes – 61% of the way to guaranteeing the presidency to the candidate with the most national popular votes and majority of Electoral College votes.