Messing With the Electoral College

There is a movement in the country to surreptitiously elect the President by popular vote under the guise of saving the Electoral College. Specifically, I am referring to the interstate compact for the popular vote of the President. According to the dynamics, once the requisite number of states sign onto the agreement by statute and their electoral votes equal 270 (the amount needed to win the Presidency), the electoral votes of the signatory states would then be allocated to the winner of the popular vote nationally. As an example, lets assume Obama runs against Romney in 2012 and the compact is in effect. Obama wins the popular vote nationally. Lets assume that Kentucky, Montana and Louisiana are signatories to the compact representing 19 electoral votes. Yet, the voters of those states vote for Romney. Because of the compact, those 19 electoral votes would be awarded to Obama in direct opposition to the will of the voters in Kentucky, Montana, and Louisiana.

This system is proposed because, the supporters note, it is possible to win the Presidency without winning the popular vote. They note it has happened four times out of 56 elections, the last being in 2000. They also note that a shift of 60,000 votes in Ohio in 2004 would have given Kerry those electoral votes despite Bush having a 3 million vote advantage nationally. Equally important, they state that candidates do not pay attention to the needs of the entire country when campaigning and concentrate on certain states ignoring states they either take for granted or those they know they have no chance winning. For example, in the 2004 and 2008 campaigns, 67% of candidate visits and advertisements were spent in just six states. In fact, close to 98% of their spending is concentrated in just 15 states.

Theoretically, they assert that this compact does not run afoul of the Constitution. Article II, Section 1 leaves it to the legislatures of the states to determine the method of choosing electors. Of the original 13 states, only three used the current winner-take-all format at they abandoned the system only to revive it in the years before the Civil War with the advent of organized political parties and regional jockeying to advance regional causes (i.e., slavery). Thus, they contend that the proposed system would not require an amendment to the Constitution because it is within the rights of states under Article II, Section 1 to enter into this compact.

Currently, eight states and DC have approved legislation signing onto the compact: Vermont, Maryland, Washington, Illinois, New Jersey, Massachusetts, California, and Hawaii. Using their own website, I then included states where legislation has passed one or both chambers at the state level which brings the total number of states to 19 and DC, but having only 239 electoral votes. Then in order to bring the total to the minimum of 270 electoral votes for the system to be triggered, I included 5 more states with 35 electoral votes where legislation has at least been reported out of committee.

Using the dynamics of this compact, I then looked at what effect it would have on the outcome of the 2008, 2004, 2000 and 1992 elections (the last was included because there was a third party candidate- Ross Perot). In 2008, Obama won the popular and electoral vote. He had 365 electoral votes. Had the compact been in effect, the electoral votes in four states would have flipped to Obama (Arkansas, Montana, Kentucky, and Louisiana) giving him 393 electoral votes. Obama won with 53% of the popular vote and 67% of the electoral votes. The compact would have given him 73% of the electoral vote. However, it would have negated the votes of 60% of Arkansas voters, 51% in Montana, and 59% each in Kentucky and Louisiana.

In the 2004 election, Bush won the popular vote over Kerry and the electoral vote with 286. Here, the case is more vivid. Since Bush won the popular vote, the votes of 16 signatories would have essentially been wasted as a whopping 202 electoral votes would have gone to Bush at the expense of Kerry. To see how utterly ridiculous this is, Bush defeated Kerry with 51% of the popular vote and 53% of the electoral vote. If this compact was in effect in 2004, Bush would have been awarded 92% of the electoral vote.

In the contested 2000 election, Gore won the popular vote with 50.3% to 49.7% for Bush (excluding Nader and others). Bush, however, won the electoral vote with 271. If the compact had been in effect, Gore would have won with 326 electoral votes. In effect, the votes in Colorado, Nevada, Arkansas, North Carolina, Montana, Kentucky, and Louisiana- 7 states- would have been essentially negated in terms of the electoral count. That is equivalent to disenfranchising 5.3 million voters (those who voted for Bush in those states). Ironically, in the 1992 election, George H.W. Bush would have lost the popular vote (both major party candidates ended up with less than 50% of the vote because of Perot) and the electoral vote. He would have benefitted by gaining only 15 electoral votes at the expense of Clinton.

The other proposal is that since electoral votes are determined by the number of Congressional seats in the House for each state plus two (the number of Senators), that electoral votes be allocated according to Presidential win by Congressional district plus two if they win the statewide vote (accounting for the Senators). In other words, the electoral votes are allocated as they are in Maine and Nebraska. Note that it is determined by the vote for President within the district, not the Congressman. Often, it is one and the same, but not necessarily as Jim Matheson’s seat in Utah is a perfect example (a Democrat representing a Republican- Presidential-wise- district). Using this criteria, Obama would have won the 2008 election with 284 electoral votes, or 81 less electoral votes than he had otherwise. In 2004, Bush would have defeated Kerry more soundly with 345 electoral votes instead of the 286 he really garnered. And here is the irony- in 2000, George W. Bush would have defeated Al Gore with 290 electoral votes instead of 271. In effect, there would have been no recount in Florida since the only thing contested was the overall state count which would have garnered Gore, at most, two electoral votes. However, in the 1992 election, Clinton would have defeated Bush I with 321 electoral votes rather than the 370 he won with that year.

The reasons cited by the supporters of this compact are counterintuitive. First, they assume that it will force candidates into some 50-state campaign. That simply will not happen as that would spread limited resources thin. Instead, they would concentrate on states with large populations like New York, Texas, California and Illinois. Specifically, they would even then center their campaigns in the large metropolitan/population centers within those states. In effect, smaller states would come out even bigger losers than the current perception. If every state signed onto this compact, then it would be a rubber stamp for the popular vote as the electoral vote would be 538-0. A good argument can be made that it would be the smaller states that would be most disadvantaged, especially those with limited media outlets.

Consider also the case of a close election nationally as far as the popular vote goes. In 2000, something like 543,000 popular votes separated Bush from Gore. Yet, Gore won only 22 of 50 states plus DC and that is giving him the benefit of the doubt in the Florida recount if he had prevailed. Conversely, Obama won 30 states plus DC in 2008, certainly more of a “mandate” than Gore in 2000. Also, since about 500 votes separated Gore from Bush and Florida’s 25 electoral votes in 2000, it makes greater logistical sense to, in the case of close elections, localize the problem for possible recount purposes rather than having it spread throughout different states. Imagine a scenario where 100,000 votes separate the candidates nationally- certainly a close race. But its 15,000 votes in Wisconsin, for example, and 2,000 in Florida, and 8,000 in Ohio and so on. In cases where the popular vote is not close, the compact makes no sense. In cases where the popular vote is close, it makes even less sense. It would certainly make the legal profession happy as recounts would become the norm.

Only four times the candidate with the more popular votes lost an election- Jackson won in 1824, Hayes in 1876, Harrison in 1888, and Bush in 2000. Four times since the 1700s! The fact is that awarding electoral votes according to the national popular vote would clearly effectively disenfranchise voters in many states and create more problems than it intends to prevent. One could also argue that even more money would flow into campaigns if candidates were forced to engage in a 50, or even 30-state campaign. It should also be noted that those states that have already signed onto this compact are decidedly blue states. Seems they just can’t let go of the fact that Bush won in 2000.