That Living and Breathing Constitution
Peter Robinson points out that people don't much remember the Cold War anymore. I am concerned that in a few more years nobody will remember the Constitution either.
Consider the following news from Massachusetts -- no, not the brouhaha over John Kerry's failure to cough up $500K in sales tax on his yacht, this is real news:
The Massachusetts Legislature has approved a law intended to bypass the Electoral College system and ensure that the winner of the presidential election is determined by the national popular vote.
“What we are submitting is the idea that the president should be selected by the majority of people in the United States of America,’’ Senator James B. Eldridge, an Acton Democrat, said as he introduced the bill on the Senate floor.
I understand that many people hate the Electoral College. Fine. But isn't the Constitution clear on how it is to be amended?
Maybe John Yoo and Richard Epstein can weigh in with their opinions: Can a state legislature or a group of state legislatures effectively amend the Constitution by statute?
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Jun '10
Re: That Living and Breathing Constitution
If they did the same thing in Wyoming, and you live in Cheyenne, you might as well stay home. Your part of the national popular vote is a rounding error. Your impact is nothing.
Re: That Living and Breathing Constitution
etoiledunord: If they did the same thing in Wyoming, and you live in Cheyenne, you might as well stay home. Your part of the national popular vote is a rounding error. Your impact is nothing. · Jul 29 at 3:16pm
Your vote counts 1 in the popular vote, same as everyone else, wherever they live. Not that I think this is a good idea---it isn't.
To answer the original question (although I'm no expert), the Constitution doesn't specify how each state chooses its electors (some amendments lay down requirements if electors are chosen by popular vote in the state). The Massachusetts legislation, I believe, says that the Massachusetts electors will be given to whichever candidate has the largest national popular vote. (Presumably there is some technical discussion of how that is to be determined: what if, say, Florida has a recount going that could effect the total; etc.) Some states considering such legislation added the provision that it only takes effect if states representing more than half the electoral college follow suit. I don't know if this is true of the Massachusetts legislation.
So, not an amendment, but legislation saying how Massachusetts chooses its electors.
Re: That Living and Breathing Constitution
Here is a short answer, George: Keep the college. It has virtues that were unappreciated when it was put into place. Think of Bush v. Gore only this time have a national recount because the differnce is under 1 percent. The process comes to a halt. What the electoral college does is quarantine irregularities. The cost that it pays is that popular majorities may not always win. That probability is low under any scenario. So the administrative issue becomes paramount.
May '10
Re: That Living and Breathing Constitution
To expand on Professor Epstein's point about irregularities:
This misguided legislation creates a situation where states with very forgiving ballot standards will have more influence in the election that states with more precise standards.
Suppose Massachusetts accepts "pregnant chads" and therefore has a low ballot rejection rate of 0.01%, while Alabama rejects "pregnant chads" and ends up with a ballot rejection rate of 1%. The winner of Massachusetts will get practically full credit in the national vote tally for 99.9% of Massachusetts' liberal voters, while the winner of Alabama will only get credit for 99% of Alabama's conservative votes.
Jun '10
Re: That Living and Breathing Constitution
David Kreps
etoiledunord: If they did the same thing in Wyoming, and you live in Cheyenne, you might as well stay home. Your part of the national popular vote is a rounding error. Your impact is nothing. · Jul 29 at 3:16pm
Your vote counts 1 in the popular vote, same as everyone else, wherever they live. Not that I think this is a good idea---it isn't....
· Jul 29 at 3:35pm
(Re: If Wyoming were like Massachusetts) But the popular vote will seldom differ by the margin of victory in the presidential race in Wyoming. If Wyoming went against the tide, voted for the loser, then the State's vote total is just a meaningless statistic, a future trivia question, because Wyoming's electoral college votes will reflect the choice of Wyoming NOT AT ALL. It makes the State by State designation completely meaningless. That's the goal, and I don't like it.
May '10
Re: That Living and Breathing Constitution
The college also forces the campaigns into "battleground" states, where they confront one another before voters who are seriously considering each. A very healthy exercise. If the grand total popular vote is the only number that matters, both candidates would stick to their strongholds, where they can run up large totals efficiently, and avoid hard questions. The major candidates will never come within a timezone of each other, or ever face a open-minded audience.
In fact they would never face a true audience. Even more than now the campaigns would become mass-television events. Stick to large TV markets, with large, safe majorities, and run up the numbers.
May '10
Re: That Living and Breathing Constitution
It's a squalid, stupid idea. Still, I would have enjoyed seeing the Bay State's Electors casting a vote for W. in December 2004.
I tell you what.
Re: That Living and Breathing Constitution
Richard, my main question is procedural: Is it Constitutional for a state to select its Electors in such a way as to frustrate the very purpose of the Electoral College? Can states constituting a simple majority of electoral votes get around the supermajority amendment threshold by statute? Assuming the scheme goes into effect, will smaller states challenge this arrangement in federal court? Are they likely to win?
As for the wisdom of the College, I agree that it is worth keeping, although I was mainly thinking about its helpful tendency to decentralize political influence geographically. I heartily second Richard and Mark's excellent points about the practical value of quarantining irregularities.
Re: That Living and Breathing Constitution
G.A. makes an excellent point: a national popular vote would change candidate behavior. In theory, a popular California politician could stay at home, emphasize divisive regional issues against a midwestern opponent, win by a supermajority in the West, lose by a smaller margin elsewhere and wind up president.
May '10
Re: That Living and Breathing Constitution
I have never heard a good argument that popular majorities should always win. That's not a universal principle. The Electoral College wasn't designed with that intention anyways. Not to mention the same Constitution gives each state two senators regardless of population.
Re: That Living and Breathing Constitution
This is all completely unknown territory, George. The original purpose of the electoral college was to be a deliberative body. The all or nothing nature of the state vote is not a constitutional requirement. Individual states can manipulate things so that each Congressional district has an electoral vote, but I know of no mechanism whereby a majority of states could force others to adopt some alternative rule. I can't see any way in which some states can change the game for every state. But I have been wrong before, and could be wrong again.
Jul '10
Re: That Living and Breathing Constitution
I have a question about the bill: does it confer the electoral votes on the candidate with the highest popular vote total? Or only on a candidate who receives a majority of the popular vote? The distinction is important. Nevertheless, I think our two party system would be DOA.
First, if the candidate with the highest pop vote becomes President, then anyone with the influence to grab, say, 15% of voters is in the game. Second, if a majority of the popular vote is necessary, then anyone who can garner 5% is a potential king-maker.
Following from that, the opportunity for litigious nonsense is drastically underestimated by Richard. Imagine a national recount in which there are five competitive candidates. We need the Electoral College.
Re: That Living and Breathing Constitution
The Massachusetts law isn't in violation of the Constitution's text, which gives each state the authority to choose its electors. But it is not in the spirit -- the Electoral College was designed as a compromise between those who wanted direct election of the President by the people, and those who wanted the states or Congress to choose. The Electoral College still gives states more power in the selection of the President, since a state's electoral votes includes not just its members of the house but its Senate seats as well.
The Electoral College is designed to magnify the influence of states in the selection of the President and to give voice to federalism even in the executive branch. But the Constitution doesn't prevent small states from deliberately harming their own interests. Small states should resist this proposal -- which doesn't appear to be the case -- because if it passes, candidates will only campaign in the states with the largest populations. If I were a citizen of Hawaii or Washington, I would question whether my state legislature was acting in my best interests. As a citizen of a big state like California, I couldn't be happier.
Re: That Living and Breathing Constitution
If states like Massachusetts really dislike the Electoral College because it is undemocratic, there are other reforms along similar lines. Why not pass a law to effectively do away with their Senate seats? They could pass a statute ordering their Senators to automatically approve bills that pass the House. Funny, but I suspect that Massachusetts' antipathy to federalism and the Framers's design will only go so far.
May '10
Re: That Living and Breathing Constitution
Garbage in, garbage out. Lousy, cretinous candidates will make lousy, cretinous politicians, regardless of procedure.
May '10
Re: That Living and Breathing Constitution
Richard Epstein
Individual states can manipulate things so that each Congressional district has an electoral vote, but I know of no mechanism whereby a majority of states could force others to adopt some alternative rule. I can't see any way in which some states can change the game for every state. But I have been wrong before, and could be wrong again. · Jul 29 at 8:09pm
Professor Epstein, if a subset of states having at least 270 electoral votes between them each enact a law saying that their electoral votes go to the winner of the national popular vote, then mathematics dictates that the winner of the national popular vote will get at least 270 electoral votes and win every election.
Re: That Living and Breathing Constitution
Shudder along to this from Doug Mataconis today at Outside the Beltway:
May '10
Re: That Living and Breathing Constitution
You mean it's too hard to convince other people to agree to amend the Constitution in harmful and unpopular ways. That's where we get sweeping-social-policy-change-by-judicial-fiat.
May '10
Re: That Living and Breathing Constitution
I don't understand what compelling reason there is to make a change. We're had 56 elections in this country. Only four times has the popular vote and electoral vote been split. The last time was in 2000. The last time before that was 1888.
What's the big rush, then? The system works. It has worked for as long as it's been in place. I see no reason to change it.
May '10
Re: That Living and Breathing Constitution
Jimmie Bise Jr: I don't understand what compelling reason there is to make a change. We're had 56 elections in this country. Only four times has the popular vote and electoral vote been split. The last time was in 2000. The last time before that was 1888.
What's the big rush, then? The system works. It has worked for as long as it's been in place. I see no reason to change it. · Aug 1 at 10:45pm
Anything but pure majoritarianism is unfair and undemocratic. Except when the judicial branch overrules the legislative branch in favor of left-wing social reforms.