The Popular Vote vs. the Electoral College

May 17, 2015

Right now, there's a well-organized, below-the-radar effort to render the Electoral College effectively useless. It's called the National Popular Vote, and it would turn our presidential elections into a majority-rule affair. Would this be good or bad? Author, lawyer, and Electoral College expert Tara Ross explains.

Electing the U.S. president by popular vote would lessen the value of individual votes and the impact of states in the election process.: The Electoral College system the founders designed requires two rounds of voting—one being a popular at the state level, and then another by the delegates chosen by the citizens of that state in their popular vote. The result: both individuals and states have greater influence in the election process.
View source; The National Popular Vote asks states individually to agree to give all of their electoral votes to the winner of the national vote, effectively eliminating the Electoral College without passing a constitutional amendment.
View source; Read legal expert Tara Ross on the importance of the Electoral College.
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The growing movement to elect the U.S. President by the popular vote would effectively “break the Constitution.”: The National Popular Vote asks states individually to agree to give all of their electoral votes to the winner of the national vote, effectively eliminating the Electoral College without passing a constitutional amendment.
View source; The NPV agreement would go into effect when states with a combined 270 electoral votes have signed on. NPV already has the support of 10 states plus D.C., totaling 165 points.
View source; Read Chapman University’s Hank Adler on how NPV would “break the Constitution.”
View source
Using the popular vote to elect the U.S. President sounds simple in theory but gets complicated in practice.: All state voting laws and codes are independent. However, a National Popular Vote agreement would make the states more interdependent than they previously were. For instance, under NPV it would be possible for a state to award all of its electoral votes to a candidate who didn’t even register for the ballot in that state. Another problem for NPV involves recounts. Currently all 50 states have their own unique rules governing when recounts will happen and how they will proceed. Lack of uniform procedures could quickly create problems. A close national count creates another set of problems. What if none of the individual states are close enough to warrant a recount? Do all 50 states recount? If only two or three states are close enough to recount, should others recount anyway? NPV would also bring an end to the current two-party system. Third-party candidates would now have real and significant impact in the election process and would lead to more European-style multi-candidate elections.
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The U.S. Constitution is the longest-lasting constitution in history in part because amendments are very hard to pass.: A constitutional amendment to the voting system would require the agreement of two-thirds of each house of Congress and three-quarters of the states, which the Founders set up as a nearly impossibly high standard for a reason.
View source; The Founders wanted the foundation of the nation’s government to be stable, and the fact that ours is now the longest-lasting constitution in history is evidence that their instincts were right.
View source
Electing the U.S. President by popular vote sounds simple in theory but would get messy in practice.: The National Popular Vote asks states individually to agree to give all of their electoral votes to the winner of the national vote, effectively eliminating the Electoral College without passing a constitutional amendment.
View source; In the NPV agreement, states could award their electoral votes to a candidate who didn’t register for the ballot in that state.
View source; NPV fails to address how recounts would work in all 50 states (each state currently has its own unique rules governing that process).
View source; The NPV would likely lead to more European multi-candidate elections.
View source; Read legal expert Tara Ross on the importance of the Electoral College.
View source
The Electoral College was created to avoid the tyranny of a pure democracy.: The Founding Fathers were highly suspicious of a pure democracy because it allowed for a tyranny of the majority—threatening the rights of minorities by providing no way to protect the property or personal security of those outside the majority.
View source; Alexander Hamilton, writing in Federalist Paper 68, laid out the historical problems clearly seen in pure democracies: A pure democracy allows for a bare majority, if they should be taken up by a “common passion,” to easily overrule the minority who might disagree with them.
View source; In Federal Paper 51, James Madison argued that pure democracy holds minority groups in tyranny to majorities.
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Electing the U.S. President by popular vote would wreck the system put into place to protect minority rights.: The National Popular Vote movement aims to institute a pure democracy by subverting the electoral college system without an amendment to the Constitution.
View source; A constitutional amendment to the voting system would require the agreement of two-thirds of each house of Congress and three-quarters of the states, which the Founders set up as a nearly impossibly high standard for a reason.
View source

In every presidential election, only one question matters: which candidate will get the 270 votes needed to win the Electoral College?

Our Founders so deeply feared a tyranny of the majority that they rejected the idea of a direct vote for President. That's why they created the Electoral College. For more than two centuries it has encouraged coalition building, given a voice to both big and small states, and discouraged voter fraud.

Unfortunately, there is now a well-financed, below-the-radar effort to do away with the Electoral College. It is called National Popular Vote or NPV, and it wants to do exactly what the Founders rejected: award the job of President to the person who gets the most votes nationally.

Even if you agree with this goal, it's hard to agree with their method. Rather than amend the Constitution, which they have no chance of doing, NPV plans an end run around it.

Here's what NPV does: it asks states to sign a contract to give their presidential electors to the winner of the national popular vote instead of the winner of the state's popular vote.

What does that mean in practice? It means that if NPV had been in place in 2004, for example, when George W. Bush won the national vote, California's electoral votes would have gone to Bush, even though John Kerry won that state by 1.2 million votes!

Can you imagine strongly Democratic California calmly awarding its electors to a Republican?

Another problem with NPV's plan is that it robs states of their sovereignty. A key benefit of the Electoral College system is that it decentralizes control over the election. Currently, a presidential election is really 51 separate elections: one in each state and one in D.C.

These 51 separate processes exist, side-by-side, in harmony. They do not -- and cannot -- interfere with each other.

California's election code applies only to California and determines that state's electors. So a vote cast in Texas can never change the identity of a California elector.

NPV would disrupt this careful balance. It would force all voters into one national election pool. Thus, a vote cast in Texas will always affect the outcome in California. And the existence of a different election code in Texas always has the potential to unfairly affect a voter in California.

Why?

Because state election codes can differ drastically. States have different rules about early voting, registering to vote, and qualifying for the ballot. They have different policies regarding felon voting. They have different triggers for recounts.

Each and every one of these differences is an opportunity for someone, somewhere to file a lawsuit claiming unfair treatment.

Why should a voter in New York get more or less time to early vote than a voter in Florida? Why should a hanging chad count in Florida, but not in Ohio? The list of possible complaints is endless.

And think of the opportunities for voter fraud if NPV is passed! Currently, an attempt to steal a presidential election requires phony ballots to appear or real ballots to disappear in the right state or combination of states, something that is very hard to anticipate. But with NPV, voter fraud anywhere can change the election results -- no need to figure out which states you must swing; just add or subtract the votes you need -- or don't want -- wherever you can most easily get away with it.

And finally, if NPV is adopted, and winning is only about getting the most votes, a candidate might concentrate all of his efforts in the biggest cities, or the biggest states. We could see the end of presidential candidates who care about the needs and concerns of people in smaller states or outside of big cities.

Here's why all of this is of so much concern: NPV is more than halfway to its goal.

NPV's contract will go into effect when states with a combined 270 electoral votes have signed. To date, NPV already has the support of 10 states plus D.C. Together, that's 165 electoral votes, leaving only 105 votes to go.

It is time to stop this attempt to undo the way American presidents are elected, which will in turn undo America. The people behind NPV think they are wiser than every generation of Americans that preceded them.

They aren't.

I'm Tara Ross for Prager University.

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