Monday, January 4, 2010

On the bill to enter into a multistate compact on a presidential popular vote

As I mentioned on an earlier thread, I participated in the Mass Citizens Legislative Seminar this past Spring. And we were given this issue to consider in a mock session of the State Senate.

So if you'll forgive the length of it, I'll recycle the rhetoric:

On the bill to enter into a multistate compact on a presidential popular vote

Madame President, I wish to speak against the proposed legislation before us, while at the same time being very much in support of the spirit behind it. It is not my intention to defend some conservative ideal of the status quo or advocate an unquestioning reverence for the old wisdom of the founders of this commonwealth or this country. I do not mean to advocate or even excuse complacency in the face of current challenges that ache for reform.

But while we should not cling to flawed systems blindly, neither should we abandon logic that is central and meaningful to our history, our electoral practice and our civic culture without a clear understanding of the consequences —intended and unintended.

You will likely hear the legislation we are considering today described as a “One man —one vote” proposal designed to repair what is broken in the way our country selects its president. It is fair to ask who would ever oppose such a notion as one man one vote —what’s more—who could mindfully watch the process by which we choose our presidents and not want to see it at least made “more perfect” —to
borrow a borrowed phrase. I acknowledge that this is the solid spirit behind the matter at hand —as I said it’s a spirit I embrace. But I submit to you that it is our task here to examine the implications of legislation beyond the stated spirit or slogans they travel by.

Just as not every law that calls itself patriotic is in fact and effect patriotic —not every law that purports to protect or improve election law is in fact and effect doing so.

In the final analysis, at it’s core the legislation at hand really does one thing only. It empowers our Secretary Of State to instruct our state’s delegates to the Electoral College to vote in direct contradiction to the statewide popular results of a presidential election.

This is hardly an ideal premise to build upon for legislation that purports to be about reforming our democracy.

Let us examine the proposal further though. The law would bind us into this agreement to potentially contradict the voters of our own state by securing the same agreement from just enough other states to secure a 2 vote margin of victory in the Electoral College. Mind you —no particular other states are identified as involving themselves in our Secretary of State’s license to contradict the voters of our own state. He will simply gather that authority to his office once a sufficient number of pigs have joined us in the poke.

Those who would support this legislation will no doubt point out the faults and flaws in the current system and argue that this seemingly perverse notion of brokering away our Electoral College votes is but a strange means to a nobler end: direct national popular election of the President of The United States. We are told this is the only means of guaranteeing that each vote should have the same weight as any other. That this will remove words like battleground states from our vocabulary and we will stop color coding our maps in ideological tints.

I will admit that this is where the spirit of this legislation is most appealing. The notion that a handful of remote states represent the tipping points to the otherwise foregone conclusions of our electoral contraption is an unsettling one. I’ll admit to my own pain and despair over Florida in 2000. In fairness I’ll also admit to clinging to hope in Ohio in 2004. Thankfully in 2008 we were confronted with neither the reality or the potential of a President elected contrary to popular consensus.

In 2008 we saw perhaps a few foregone conclusions successfully challenged.

And if you will recall, a very central message of the winning campaign was that the election was not about the winning candidate. It was about us. There was that notion about community organizing —that community organizing is the fundamental activity of government in an engaged and vital democracy.

That government should empower communities —as communities should empower government.

This notion of the common purpose of a people arrived at upon the real and human scale of the communities they know and live within —this is one notion —one of a few— I do believe the founders got right. It is the mechanism of community and consensus that informs the design of our Congress and it is the same mechanism by which we should still select our President.

One phenomena of the the current flawed system —at least in the last several presidential elections is that Massachusetts Democrats end up leaving the state to canvas elsewhere—realize that not all of our residents think that is a bad thing. These activists do generally return after the election though. Perhaps if we, like a number of other states chose to award our electoral delegates by the corresponding district more of the energy of that advocacy would remain here, who knows —we might enable and enliven more meaningful debate of the issues that effect our lives —among the candidates for President —and more importantly among ourselves.

That question of how we award the delegates to the Electoral College in consistent keeping with the popular mandate of Massachusetts voters might be worth visiting in this senate chamber, but I’ll grant political realities are such that action on a federal level would probably be necessary to effect a larger balance to the reform.

The measure actually at hand today attempts to change a fundamental aspect of our Constitutional Democracy by means of a clever and perverse construct that evades the deliberately more demanding requirements of amending the Constitution of The United States. I trust everyone in this room to regard The Constitution as something more than a set of cumbersome obstacles to be evaded. I believe we all take a pledge to that effect.

Direct popular election of the President might allow the candidates to direct their attention somewhere beside the battleground states, perhaps that’s true. But mightn’t it also serve to direct our own attention further afield from our own towns and districts and states, from the larger genuine context of our own lives and our own issues. With the measure being proposed today, we might avoid the rare aberration of a President elected contrary to the popular will. But the question remains will we be any more empowered to lend that contest meaning beyond mere popularity?

I submit to you, that the answer is no.

Respectfully submitted

Tom Driscoll


Anonymous said...

Your blog keeps getting better and better! Your older articles are not as good as newer ones you have a lot more creativity and originality now keep it up!

Anonymous said...

A survey of 800 Massachusetts voters conducted on June 3, 2008 showed 73% overall support for a national popular vote for President.

By party, support was 82% among Democrats, 66% among independents, and 54% among Republicans.

By age, support was 74% among 18-29 year olds, 69% among 30-45 year olds, 72% among 46-65 year olds, and 78% for those older than 65.

By gender, support was 80% among women and 63% among men.

By race, support was 75% among whites (representing 88% of respondents), 59% among African-Americans (representing 4% of respondents), 66% among Hispanics (representing 1% of respondents), and 57% among Others (representing 7% of respondents).


mvymvy said...

Under the current system of electing the President, presidential candidates concentrate their attention on a handful of closely divided "battleground" states. 98% of the 2008 campaign events involving a presidential or vice-presidential candidate occurred in just 15 closely divided "battleground" states. Over half (57%) of the events were in just four states (Ohio, Florida, Pennsylvania and Virginia). Similarly, 98% of ad spending took place in these 15 "battleground" states. Similarly, in 2004, candidates concentrated over two-thirds of their money and campaign visits in five states and over 99% of their money in 16 states.
Two-thirds of the states and people have been merely spectators to the presidential elections. Candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the voter concerns in states where they are safely ahead or hopelessly behind. The reason for this is the state-by-state winner-take-all rule enacted by 48 states, under which all of a state's electoral votes are awarded to the candidate who gets the most votes in each separate state.

In the past six decades, there have been six presidential elections in which a shift of a relatively small number of votes in one or two states would have elected (and, of course, in 2000, did elect) a presidential candidate who lost the popular vote nationwide.

mvymvy said...

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, nowadays, 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 rule (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 rule 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 rule) 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.

What the current U.S. Constitution says is "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."

mvymvy said...

The congressional district method of awarding electoral votes (currently used in Maine and Nebraska) would not help make every vote matter. In NC, for example, there are only 4 of the 13 congressional districts that would be close enough to get any attention from presidential candidates. A smaller fraction of the county's population lives in competitive congressional districts (about 12%) than in the current battleground states (about 30%) that now get overwhelming attention , while two-thirds of the states are ignored Also, a second-place candidate could still win the White House without winning the national popular vote.

mvymvy said...

Opponents remain stuck on a misconception that the plan would “force” states to give their electoral votes to a candidate that may not have won their state, but this misses the point entirely. The National Popular Vote plan changes the Electoral College from an obstruction of the popular will to a ratifier in that it would always elect the candidate who has won the most popular votes in all 50 states and the District of Columbia. Rather than states throwing their votes away, the actual voters themselves are empowered, as each and every one of us would have an equal vote for president – something we are sorely lacking under the Electoral College.

mvymvy said...

In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. This national result is similar to recent polls in closely divided battleground states: Colorado-- 68%, Iowa --75%, Michigan-- 73%, Missouri-- 70%, New Hampshire-- 69%, Nevada-- 72%, New Mexico-- 76%, North Carolina-- 74%, Ohio-- 70%, Pennsylvania -- 78%, Virginia -- 74%, and Wisconsin -- 71%; in smaller states (3 to 5 electoral votes): Delaware --75%, Maine -- 77%, Nebraska -- 74%, New Hampshire --69%, Nevada -- 72%, New Mexico -- 76%, Rhode Island -- 74%, and Vermont -- 75%; in Southern and border states: Arkansas --80%, Kentucky -- 80%, Mississippi --77%, Missouri -- 70%, North Carolina -- 74%, and Virginia -- 74%; and in other states polled: California -- 70%, Connecticut -- 74% , Massachusetts -- 73%, New York -- 79%, Washington -- 77%, and West Virginia- 81%. Support is strong in every partisan and demographic group surveyed.

The National Popular Vote bill has passed 29 state legislative chambers, in 19 small, medium-small, medium, and large states, including one house in Arkansas, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, North Carolina, and Oregon, and both houses in California, Colorado, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, Vermont, and Washington. The bill has been enacted by Hawaii, Illinois, New Jersey, Maryland, and Washington. These five states possess 61 electoral votes -- 23% of the 270 necessary to bring the law into effect.


DianaC said...


Very interesting points. When you look at the National Popular Vote plan closely, it's amazing legislators consider signing away the views of their own citizens -- because that's exactly what the bill does.

How would individual citizens be better represented by having their electors chosen based on how another state voted. For example, under NPV, in 2004 California would have been forced to cast its 55 electoral votes for George Bush -- even though he lost 54% to 44% there. Likewise in 2008, Texas would have cast its 34 electoral votes for Barack Obama.

Also, I'd encourage you to consider the favor that swing states do for the country. Swing states are swing states because they're the most evenly divided. In a way, they're a microcosm of the diverse political and ideological viewpoints held nationwide. By driving candidates to such close states, the entire nation is more likely to get a moderate executive who represents as many diverse perspectives as possible. If numbers were all that mattered - regardless of distribution - America's unique liberty and stability -- combined with diversity -- would be severely threatened.

Thanks for your post. For more information on how the Electoral College protects diversity and representation, check out