Anti-Electoral College forces are back at work! This time, in Nebraska.

It’s that time of year again! State legislative sessions are opening all across the country, which means that the anti-Electoral College crowd is back at work.  The effort is being spearheaded by National Popular Vote (“NPV”), a California-based organization that wants to change the way Americans elect their presidents.  Today, NPV is trying to get its plan approved by a legislative committee in Nebraska.

What, exactly, is NPV proposing?

Well, NPV supporters know that a constitutional amendment eliminating the Electoral College is not achievable. They simply do not have enough support. So, they have hatched a new scheme instead. They claim their plan simply makes creative use of constitutional provisions. Hmm. It must be creative! Indeed, their idea is so creative that it claims the ability to implement the direct presidential election system that was specifically rejected by the delegates to the Constitutional Convention.

We should call their “creativity” what it really is: an end-run around the constitutional amendment process.

NPV’s plan is simple: It asks each state to change its laws regarding allocation of presidential electors. Today, most states give their electors to the presidential candidate who won their own state’s election. For instance, Barack Obama obtained 55 electors from California in 2012 because he won the popular vote in California. NPV instead asks states to commit themselves, in advance and (supposedly) irrevocably, to award their electors to the winner of the national popular vote.

Participating states sign an interstate compact committing them to this new system. It goes into effect when states totaling 270 electors — enough to win a presidential election — have signed on. In this way, participating states are guaranteed that the winner of the national popular vote will be chosen as president. The Electoral College would still technically exist, but it would merely ratify the national popular-vote winner.

The Electoral College would be, for all intents and purposes, eliminated.

To date, ten (blue) states plus the District of Columbia have already approved this idea.  These states have 165 electoral votes among them.  Thus, they are 61% of the way to their goal of 270 electors.

NPV is working to get the support of additional states.  Today, NPV is making its pitch in Nebraska.  The Government, Military and Veterans Affairs Committee will hold a hearing on LB 112, the National Popular Vote legislation, at 1:30 p.m. today.  If you live in Nebraska, please call your legislator and urge him or her to vote NO on the bill.

The Electoral College is often misunderstood. But a little education shows that the institution is critical to the success of our republic.

For those who are interested, I’ve attached the testimony that I submitted to the Nebraska committee.  More information about the effort to protect the Electoral College can be found here: https://www.facebook.com/SaveOurStates or here: http://www.saveourstates.com/

Thank you for taking time to learn about our underappreciated Electoral College!

The State of Nebraska Legislature
Government, Military and Veterans Affairs Committee 

LB 112: An Act to Adopt the Interstate Compact on the Agreement Among the States to Elect the President by National Popular Vote
January 2015

Submitted By: Tara Ross
Author of Enlightened Democracy: The Case for the Electoral College

Overview

I urge you to vote against LB 112. It would effectively eliminate the Electoral College, an institution that protects small to mid-sized states such as Nebraska and is critical to the success of our republican democracy. It would also create many new logistical and legal problems for our presidential election system.

Modern Benefits of the Electoral College

  • The Benefits of Federalism. The Electoral College discourages presidential candidates from focusing too exclusively on regional majorities or special interest groups. As a matter of history, such strategies fail.
  • Moderation and Compromise. The Electoral College encourages Americans to work together, across state lines. A direct election system, by contrast, would result in multi-party presidential races, a fractured electorate, increasingly extremist third-party candidates, and constant recounts.
  • Stability and Certainty in Elections. The Electoral College typically produces quick and undisputed outcomes. Fraud is minimized because it is hard to predict where stolen votes will matter.

Problems Created by LB 112.

  • Differing States’ Laws. NPV attempts to combine 51 different state (and D.C.) election processes together to obtain one national outcome. This will not work. Chaos, litigation, and confusion will result. One of the three constitutional lawyers who originally proposed an NPV-like mechanism has conceded this difficulty.
  • Disenfranchised Voters. Some voters may be disenfranchised because their votes will be counted in different ways, depending on their state of residence.
  • Legal Issues. NPV’s plan has other constitutional and legal problems, which will be the subject of much litigation.
  • Amendment Necessary. The Electoral College should not be eliminated, but if it must be, then a constitutional amendment is necessary.

Conclusion. The Electoral College should not be eliminated through legislation such as LB 112. The system protects our freedom, just as it did when it was created in 1787. 

The State of Nebraska Legislature
Government, Military and Veterans Affairs Committee 

LB 112: An Act to Adopt the Interstate Compact on the Agreement Among the States to Elect the President by National Popular Vote
January 2015

Submitted By: Tara Ross
Author of Enlightened Democracy: The Case for the Electoral College

Full Testimony

LB 112 represents the latest attempt to eliminate America’s unique and successful presidential system. Abolishing the Electoral College would be unhealthy for the country and especially detrimental for small to mid-sized states such as Nebraska. But eliminating the Electoral College through this roundabout manner, without going through a formal constitutional amendment process, carries its own special dangers.

I will first discuss the benefits of the Electoral College. Then I will turn to a discussion of the special problems created by the National Popular Vote (“NPV”) legislation.

Our Misunderstood Electoral College

Perhaps the most important thing to understand about the Electoral College—and the Constitution in general—is that the Founders were not trying to create a PURE democracy. They wanted to be self-governing, of course. They had just fought an entire Revolution in part because they had no representation in Parliament. The principles of self-governance were very important to them. On the other hand, they knew their history and knew that pure democracies have a tendency to implode. Why? In a pure democracy, 51 percent of the people can rule the other 49 percent all the time, without question—even when that bare majority is being tyrannical.

Consider that even very sizable minorities can be tyrannized in such a system! And imagine the oppressive laws that could have been passed in the wake of an event like 9-11, when voters were gripped in emotions like fear, sorrow, and anger.

The Founders wanted to be self-governing, but they also wanted hurdles to stop (or at least slow down) these types of irrational, bare, or emotional majorities. They wanted to protect minority political interests, especially the small states, from the tyranny of the majority.

The Founders thus created a Constitution that combines democracy with federalism (states acting on their own behalves) and republicanism (deliberation and compromise). Thus, we have a Senate (one state, one vote) and a House (one person, one vote). It is why we have presidential vetoes. It is why we have supermajority requirements to do things like amend the Constitution.  And it is why we have our uniquely successful Electoral College, which operates today to elect Presidents through a combination of state and individual actions.

The Benefits of Federalism. Because of the Electoral College, American presidential candidates can’t focus too exclusively on regional majorities or special interest groups. As a matter of history, such strategies fail. In 1888, for instance, Grover Cleveland ran a campaign that was perceived as too focused on the interests of southern states. He became one of the few presidential candidates to win the popular vote, but lose the presidency. By contrast, candidates have been most successful when they build broad coalitions, taking into account the needs and opinions of a wide variety of voters. Ronald Reagan and FDR epitomized this ability to build coalitions. They won by electoral landslides.

The existence of so-called “swing” states does not change this analysis. The full history of states’ voting shows that no state is permanently “safe” or “swing.” California voted for a Republican candidate as recently as 1988. Texas used to be as undeniably Democrat as it is Republican today. States such as Georgia, Kentucky, and Louisiana all voted for Bill Clinton in the 1990s, but they were considered very safe Republican states in 2008. States such as Virginia and North Carolina have changed from red to purple in recent years.

Moderation and Compromise. The Electoral College supports our stable two-party system. Today, third-party candidates do not receive much support. In a direct popular election, everything changes. A vote for Ross Perot or Ralph Nader is no longer “wasted,” and the number of presidential candidates would increase. People would enjoy casting their votes for a wider variety of candidates, of course, but there is a downside to a multi-party system, too: Candidates are not required to obtain majority support (except maybe in a runoff). In such a world, voters and political parties have no incentive to moderate, compromise, and build coalitions. They are simply working to earn a spot in the runoff or to obtain the plurality needed to win. The electorate would become more and more fractured. Spreading votes among more candidates means closer vote totals and, thus, more recounts. Worse, extremist candidates could more easily sway an election, as they sometimes do in Europe.

Stability and Certainty in Elections. The Electoral College encourages stability and certainty in our political system. The Electoral College typically produces quick and undisputed election outcomes for two reasons: First, the system (along with the winner-take-all rule) tends to magnify the margin of victory, giving the victor a certain and demonstrable election outcome. Such certainty can’t be provided by a direct popular election. Popular votes are often close, and these close votes can result in constant litigation and recounts. Second, the system controls the effect of fraud and error. In part, this is because it is difficult to predict where stolen votes will make a difference to the national outcome. But if one person can identify a problematic state (think Ohio in 2004), then, in all likelihood, everyone knows and that area is closely watched. It becomes harder to steal votes. To the degree that fraud and errors do occur, the Electoral College makes it possible to isolate the problem to one or a handful of states, as occurred in 2000.

Special Problems Created by NPV

The current presidential election process blends federalist and democratic principles. America holds 51 completely separate, purely democratic elections each presidential election year (each state, plus D.C.). Each state is responsible for holding its own, independent election to determine which electors will represent it in the Electoral College vote. Differences among states’ laws are irrelevant because votes cast in one state do not impact the outcome in another state. In short: 51 elections are held; 51 sets of state election laws govern these elections; 51 outcomes are achieved. Everyone is treated fairly.

NPV would change this. America would still hold 51 state-level elections, governed by 51 sets of election laws. But NPV would attempt to derive only one outcome from these 51 processes. Suddenly, variances among states’ laws—previously irrelevant—would matter a great deal. Now these varying laws ensure unequal treatment of voters.

Consider the issue of early voting. Voters in Nebraska have their own laws regarding early voting. Other states might have different provisions regarding when early voting starts, how long it lasts, or who may early vote and how they may early vote. If Nebraska’s voters are competing only against other Nebraska voters in a contest to determine the identity of Nebraska’s electors, then they have no reason to care what the rules are in another state. Ballots cast in other states do not affect the identity of a Nebraska elector. However, once NPV throws voters of all states into the same election pool, then many problems begin to arise. With NPV in place, the identity of a Nebraska elector could be changed by a vote cast in Minnesota or Alaska or any other state. How can Nebraska voters be equal with those in Minnesota if they have less time to vote? Or if it is harder to obtain an absentee ballot?

There are many other differences among states’ laws: States differ in whether they allow felons to vote. They differ in their requirements for ballot qualification. States have different criteria for what does (or does not) trigger recounts within their borders. These differences could cause a whole host of problems. What if the national total is close—close enough to warrant a recount—but a recount can’t be conducted because the margins in individual states were not close? Or perhaps recounts are conducted, but only in two or three states, each with a different idea of how to count a hanging chad. Perhaps other states see what is going on and choose to conduct recounts that their statutes previously deemed optional. They have different definitions of “hanging chad,” and they want to counteract the efforts of other states.

One well-respected constitutional lawyer, Prof. Vikram David Amar, has acknowledged the real dangers created by these issues. Amar’s opinion is important: NPV is based upon an idea that he and two other professors proposed in 2001. Yet Amar notes that a “problem I see in the current National Popular Vote bill is that it does not guarantee a true national election with uniform voter qualification, voter mechanics, and vote-counting standards. Absent such uniformity, some states might have incentives to obstruct or manipulate vote counts.”

Additional problems are created by the fact that NPV gives the presidency to the candidate winning any plurality. NPV is not looking for a majority winner. It is not even looking for a minimum plurality. Thus, a candidate could win with only 15 or 20 percent of votes nationwide.

Such an idea sounds far-fetched today, with America’s two-party system firmly in place. But if elimination of the Electoral College undermines the two-party system, as many believe it will, then such results are entirely possible.

But it gets even worse. Under this scheme, Nebraska could be forced to award its entire slate of electors to a candidate who was not on its ballot.  By the terms of the NPV compact, this candidate could be entitled to personally appoint the five electors who will represent Nebraska in the Electoral College vote.  He could even appoint people from out-of-state, if he thought they were more likely to be faithful to him in the Electoral College vote.

Finally, remember that NPV’s compact is a temporary solution—easy to join and unjoin, by its own terms—as opposed to a constitutional amendment, which would be a relatively permanent solution. Imagine that NPV has just enough states to be operable during the 2012 election. The presidential campaigns are proceeding on the assumption that a national direct election will be in place on Election Day. But in late June, Massachusetts gets worried that the Republican will win the national popular vote. In disgust, its legislature decides to pull out of NPV’s compact. Suddenly, NPV no longer has enough states to proceed. The country is again hosting a normal presidential election with the Electoral College in place. Well, unless some other state changes its mind and swiftly adopts NPV for purely political, partisan reasons.

This kind of flip-flopping back and forth is not good for the stability of the country or its presidential election system.

There are many other legal and constitutional issues created by NPV’s compact: Is its interstate compact an illegal end-run around the constitutional amendment process? Will the compact require congressional approval? Does NPV’s entire scheme fail under Court precedents such as U.S. Term Limits, Inc. v. Thornton and Clinton v. New York? Does the compact create Equal Protection issues because of the unequal treatment of voters? Reasonable legal arguments can be made for any of these positions, and they will doubtless be litigated at length. Such extended litigation is harmful to the stability of our political system—to say the least.

Formally eliminating the Electoral College through a constitutional amendment would be unhealthy for the country. But NPV’s attempt to skirt the constitutional amendment process altogether would create added difficulties. These logistical and legal nightmares could haunt the country each and every presidential election year.

Conclusion

The Electoral College is an important safeguard in our constitutional system of checks and balances, and it is critical to the success of our nation’s republican democracy. I urge you to protect the Electoral College by voting “no” on LB 112.