05 September 2008
Electoral College Reform? Not So Easy
Reforming the Electoral College system for electing the U.S. president would require enormous effort and a consensus that does not now exist.
David Lublin is professor of government in the School of Public Affairs at American University, Washington.
By David Lublin
It’s not hard to point out reasons why one might want to abolish the Electoral College for electing the president of the United States -- especially because the system occasionally elects a candidate who has received fewer popular votes nationally than another candidate. Figuring out how to replace it is not so simple.
One reason that the Electoral College is likely to stick around is that amending the U.S. Constitution is difficult. It requires that the U.S. Congress first pass the proposal by a two-thirds majority in both the House of Representatives and the Senate, and then three-quarters of the states must ratify it. The Constitution has been amended only 27 times since its adoption in 1787. And that’s including the first 10 amendments to the Constitution, known collectively as the Bill of Rights, passed shortly after ratification of the original Constitution.
Overwhelming support, if not consensus, is generally required to get over the hurdles to ratification. That consensus does not currently exist for abolishing the Electoral College. Many Democrats think the loss of their candidate in the 2000 presidential election shows the urgency of reform, but some Republicans consequently view efforts to change the system as an effort to discredit the victory of their candidate. Despite some support across party lines, there is no consensus in favor of reform.
Moreover, various states have an array of reasons to oppose ratification. Small states receive a somewhat disproportionate share of electoral votes since the number of electoral votes allotted to each state equals the number of senators -- always two -- plus the number of representatives elected by the state -- at least one, regardless of the population. Closely contested states, such as Florida and Ohio in the 2000, 2004, and 2008 elections, receive more attention from presidential candidates because electoral votes are allocated by the winner-take-all method in all but two states -- Maine and Nebraska. Electoral College opponents identify this aspect of the current system as a flaw, but marginal states may not be so quick to give up the extra attention lavished on them by presidential candidates. Many people like the fact that the Electoral College reflects the federal nature of the United States and resist efforts to abolish it as an attack on federalism and the powers of the states.
National Popular Vote Compact
Some advocates of Electoral College reform are suggesting that the country work around the amendment process through an interstate compact that would assure that the winner of the national popular vote becomes president. Proponents of this National Popular Vote compact suggest that states containing a majority of Electoral College votes should agree to cast their votes for the presidential candidate who wins the national popular vote in the election, whether the candidate won or lost in those states. Adopting the reform through a compact between the states would be much easier than through constitutional amendment. It would take 38 states to ratify a constitutional amendment, but as few as the 11 most populous states could bring the interstate compact into effect.
It sounds like a clever solution, but it may sow the seeds of new problems. In the United States, the presidential election is not really a single national election but 51 separate contests in the 50 states and the District of Columbia (the national capital, Washington). Because each state decides which presidential and vice presidential candidates get on its ballot, different sets of candidates appear on the ballots of various states. Even under the compact, Americans would still not have a true national election in which every voter has the same candidate choices.
Presidential candidates could even have different running mates in different states. The proposed compact requires that any votes cast in any state for the presidential or vice presidential candidate count toward the total for the slate regardless of whether the same vice presidential candidate appeared on the ballot. For example, the running mate of third-party candidate Ralph Nader did not appear on the California ballot in 2004. Nonetheless, all votes cast for Ralph Nader in California would have counted toward not just Nader’s national total but also for his running mate, even though the running mate did not appear on the ballot -- an unsatisfactory solution in that case.
Some Open Questions
The close presidential contest between Republican George W. Bush and Democrat Al Gore in Florida in 2000 and its impact on the outcome stimulated calls for reform of the Electoral College. Ironically, a national popular vote would likely compound the problems of a close contest.
There is no mechanism in place -- and the proposed National Popular Vote compact does not create one -- for deciding a nationally close contest. All existing ballot recount laws govern the prospect of a close election within a state but do not force a recount if the election is nationally close. Moreover, while the news media and both major political parties could give a great deal of scrutiny to the recount in the single state at issue in 2000, it would be much harder for them to do the same across the entire country. While the chance of a tight election is smaller in a national contest, the standards for what constitutes a close election would also be much lower.
The enforceability of an interstate compact governing how states cast their Electoral College votes also remains an open question. The U.S. Constitution clearly gives state legislatures the right to determine how states cast their electoral votes. While the compact would prohibit withdrawal from the compact within six months of an election, it is far from clear that this provision is legally enforceable. The compact contains no backup provisions if states do withdraw and the courts refuse to stop them.
These concerns might seem small and overly technical, but the 2000 election demonstrated the importance of legal details and the necessity of being ready when an improbably close election occurs. National popular election of the president may eventually be viable, but it will require careful advance planning at the federal level to make it work and more consensus than currently exists to make that happen.
The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.
