Hertzburg Does Not Like Electoral College

Small State, Small Mind
by Hendrik Hertzburg

On the eve of Independence Day, the Governor of Rhode Island, Donald L. Carcieri, vetoed the National Popular Vote bill, which had been passed by both houses of the state legislature and which, according to a recent poll, was favored by 74 per cent of the state’s voters.

The three key paragraphs of the Governor’s veto message deserve scrutiny. They are a concise statement of several misconceptions about (or misrepresentations of) this blog’s favorite achievable reform.

Paragraph one:

This legislation attempts to eviscerate the Electoral College and subvert the Constitution of the United States.

The “Electoral College”—a term that appears nowhere in the Constitution, by the way—was eviscerated and/or subverted a long time ago, as I will explain anon. But the Constitution quite clearly provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors,” etc. Italics mine.

This power, as Bush v. Gore affirmed, is “plenary”—i.e., “full, complete, covering all matters.” The National Popular Vote compact—under which the contracting states agree that once enough of them have subscribed to the compact to account for a majority of the electoral vote (270) they will cast all their votes for the winner of the national popular vote, thus guaranteeing that winner the Presidency—simply uses this constitutional power.

Paragraph two:

Our Founding Fathers established a process by which the American people would elect a President and Vice President. Despite the cries from those who believe the current system is unjust, and that the only legitimate way to select a Commander-in-Chief* is by direct election, no serious effort has been made to amend the Constitution to provide this “remedy.”

Our Founding Fathers did not establish “the current system.” They directed the legislatures of the several states to “chuse” electors, but that was meant to be only the opening step in a complicated dance. The chosen electors would meet in their own states (all on the same day, to prevent collusion) and “give their votes”—which would be signed, sealed, and delivered (by horse and rider, presumably, or horse and carriage, or barge, or ship, or riverboat, or guy on foot carrying sack, or some combination) to the President of the Senate, in the nation’s capital. The President of the Senate would open and count them in the presence of both Houses of Congress. It was taken it for granted that, post-George Washington, hardly anyone would manage to capture the Presidency outright by garnering an electoral-vote majority. The usual procedure, it was assumed, would be for the House of Representatives to pick the President from among the top five finishers, with each state delegation casting a single vote. In other words, the “Electoral College” would be a kind of slow-motion nominating convention, with the final choice being made by the House under a regime designed to maximize the power of states with small non-enslaved populations. That’s the “process” the (by then exhausted) Founding Fathers hammered out in Philadelphia and thought they were establishing.

It didn’t turn out that way. The winner-take-all rule, which only three states used at first, was one of many spanners tossed into the works over the years. The practice of legislatures delegating the choice of electors to voters was another. The emergence of national political parties was yet another. For a variety of reasons, the “current system” bears little resemblance to the zany compromise the Framers, in their wisdom, ended up adopting. We can be grateful for that small favor, but the “current system” is unjust nevertheless—not only because it can easily deprive the people of their preferred choice but also, and mainly, because it shuts the citizens of the thirty or more non-“battleground” states out of the game, effectively disenfranchising them.

It is not true that no serious effort has been made to provide the “remedy” (why the sneering scare quote marks, Governor?) of instituting direct election via constitutional amendment. In fact there have been several such efforts. One of them, mounted in the wake of the 1968 squeaker, had the support of both President Nixon and the opponent he had lately vanquished, former Vice-President Hubert Humphrey, plus the most prominent leaders of both parties and large majorities in the House, the Senate, the state legislatures, and (not that it mattered) the public. It was killed by a Senate filibuster.

An effort of comparable seriousness is hard to imagine now, mainly because of the changed attitude of Republican leaders for whom the 2000 result was an occasion for rediscovering the lofty virtues of the “current system.” As it is perhaps superfluous to mention, Governor Carcieri is a Republican. Not all Republicans are averse to popular election, of course, but enough of them are to make a constitutional amendment, which can be blocked by the non-assent of a quarter of the states, vanishingly unlikely. It won’t be so easy to block N.P.V.

Paragraph three:

The appropriate forum to change or eliminate the Electoral College is through a constitutional amendment to the United States Constitution. The state legislature should focus on legislative matters that are germane to our state and leave federal matters to our congressional delegation.

An appropriate forum, not the appropriate forum. Electing the President by popular vote wouldn’t be the first great democratizing change to have bubbled up from the state level. That’s how we got two others, the popular election of senators and woman suffrage. Oregon found a way to have its senators picked by its people in 1907; by 1913, when the 17th Amendment was finally added to the Constitution, popular election was already a reality in twenty-nine states. Wyoming enfranchised its female citizens as early as 1869; by 1912 eight other states had followed suit. The 18th Amendment was ratified in 1920, by which time the women of Wyoming had been voting in local, state, and federal elections for half a century. The National Popular Vote plan is in this venerable tradition. And once Americans have experienced the advantages of one or two national popular elections—dramatically higher turnout, campaigns waged on national issues, political energy in every corner of the country, candidates turning up in more than a dozen or so states, every vote counting equally, and no more red state/blue state blather (to say nothing of no more losers stumbling into the White House)—the new arrangement will quickly be formalized in the Constitution itself.

*The Governor here commits the common, lazy error of referring to the President as the “Commander-in-Chief” without specifying that, under the Constitution, the only thing the President is Commander-in-Chief of is the armed forces. He is not the Commander-in-Chief of the United States. By the same token, the President of the Senate—i.e., the Vice-President—is the President of the Senate. Cheney to the contrary notwithstanding, he is not the President of the United States.

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