Electoral Exit: Presidents Should Be Elected by Popular Vote

Barack Obama won the 2012 presidential election with nearly five million more popular votes than Mitt Romney and a resounding electoral vote majority of 332 to 206. But was his electoral vote victory necessarily so clear?

If six states Obama carried that have Republican governors and state legislative majorities had provided for casting their electoral votes in a different way—one that several of them are now contemplating—the result would have been entirely different.

Indeed, if Florida, Michigan, Ohio, Pennsylvania, Virginia, and Wisconsin had allocated their electoral votes as Maine and Nebraska now do (and all states can) to their winner in each of their Congressional districts, the 2012 electoral results would have been:

Obama—269

Romney—269

A tie would, of course, have thrown the election into the House of Representatives, whose Republican majority would have made Mitt Romney president—never mind the fact that he got only 47 percent of the popular vote to Barack Obama’s 51 percent. But even that result is not as straightforward as it might seem.

While leaving it to the states to decide how to pick their electors, the Constitution provides that when a presidential election is decided by the House, each state shall have one vote. As matters stand, that would still leave the Republicans in control—but these sands can shift swiftly, as evidenced by the fact that the 2010 Congressional elections produced a swing from 33 House delegations with Democrat majorities to 33 controlled by Republicans.

Worse yet, the one-state-one-vote prescription flies in the face of the one-man-one-vote mandate that the U.S. Supreme Court has set for all other elections in this country. Theoretically, at least, the 26 smallest states (population-wise) with only 18 percent of the U.S. total could decide who holds the nation’s highest office. Short of that, the thought that California’s 37 million residents should have no more voice than Wyoming’s 600,000 is abhorrent.

The prospect for gaming the elector selection process that’s now emerging coupled with all of the anomalies make a compelling case for scrapping the present system and going to direct election of the president by popular vote nationally.

That case is reinforced by the fact that in the 2012 election, only about 10 so-called battleground states mattered in determining the presidential outcome. The two campaigns virtually ignored heavily Democratic states like California and heavily Republican states like Tennessee, and a vote cast in those states counted for next to nothing compared to a vote cast in Nevada or New Hampshire.

Popular vote election of the president would sweep away such disenfranchisement. Each voter in every state would have an equal voice, and the possibility of a tie would be infinitesimal.

Former presidents Richard Nixon, Gerald Ford, and George H.W. Bush have all favored scrapping the Electoral College and going to a popular election. In Tennessee, so have Howard Baker and, of course, Al Gore, who lost the 2000 election despite winning a majority of the popular vote. So it’s not, or shouldn’t be, a partisan issue, and it commands broad public support.

In an op-ed piece in The Tennessean last March, co-authored by a former chairman of the state Democratic party and a former chairman of the state Republican party, they report that, “A statewide poll conducted by the McLaughlin Group, a conservative polling firm, found that four of every five Tennesseans want the candidate who receives the most votes to win the White House.”

The main arguments against this are that it would result in the election of presidents who’ve gotten less than a majority of the vote, lead to more third-party and independent candidates, and perhaps even the fragmentation of the two-party system that has been a source of national cohesion.

It’s true that 15 U.S. presidents have been elected with less than a majority of the popular vote, including most recently George Bush and Bill Clinton, and with Abraham Lincoln garnering the fewest at just under 40 percent. But there’s little basis for asserting that they or John Kennedy or Harry Truman or Woodrow Wilson—to name the other 20th century “minority” presidents—would have governed any less effectively if they had been elected with a plurality of the popular vote.

In all probability, other formidable third-party candidates, perhaps even a Tea Party candidate, will emerge to produce more plurality presidents. But experience in all 50 states whose governors can be selected by pluralities, militates against the proposition that this will result in fragmentation of the two-party system.

In Texas, Republican Gov. Rick Perry won election in 2006 with 39 percent of the vote, but has been a popular governor, and was reelected in 2010 by a large majority. And does anyone believe that Gov. Bill Haslam has been any less effective because he only got 47 percent of the vote in 2010 Republican primary?

It’s widely supposed that it would take a cumbersome Constitutional amendment to change the way the president gets elected. But that is not the case. Eight states and the District of Columbia have already started down a different path through adoption of what’s known as the National Popular Vote Interstate Compact. The compact pledges them to cast their electoral votes for the candidate receiving the most popular votes nationally, but it would only take effect after enough states to produce an electoral vote majority have adopted it.

Some believe the Compact could run afoul of a Constitutional prohibition against states entering into compacts with each other without Congressional consent. But this could be rectified by a majority vote of Congress rather than the two-thirds vote required to initiate a Constitutional amendment that must then be ratified by three-fourths of the states. Still, a Constitutional amendment would be preferable for the long run.

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Comments » 2

oldgulph writes:

Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.

The U.S. Constitution provides:

"No state shall, without the consent of Congress,… enter into any agreement or compact with another state…."

Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can "not be read literally." In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:

"Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

"The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta."

Specifically, the Court's 1893 ruling in Virginia v. Tennessee stated:

"Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States."

The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…."

In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:

"The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States"

The National Popular Vote compact would not "encroach upon or interfere with the just supremacy of the United States" because there is simply no federal power -- much less federal supremacy -- in the area of awarding of electoral votes in the first place.

oldgulph writes:

The U.S. Constitution says "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ." The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law. The U.S. Constitution gives "exclusive" and "plenary" control to the states over the appointment of presidential electors.

Historically, virtually all of the previous major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation's first election in 1789. However, now, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.

In 1789, only 3 states used the winner-take-all method (awarding all of a state's electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all method is now currently used by 48 of the 50 states.

In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.

In 1789, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state.

The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.

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