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UPDATING the ELECTORAL COLLEGE: the NATIONAL POPULAR VOTE LEGISLATION the Electoral College Is an Anomaly of the American Democracy

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UPDATING the ELECTORAL COLLEGE: the NATIONAL POPULAR VOTE LEGISLATION the Electoral College Is an Anomaly of the American Democracy RECENT DEVELOPMENT UPDATING THE ELECTORAL COLLEGE: THE NATIONAL POPULAR VOTE LEGISLATION The Electoral College is an anomaly of the American democracy. The United States is virtually alone in entrusting the election of its President to a small, largely anonymous group of individuals, rather than to its citizen voters.1 On February 23, 2006, National Popular Vote (“NPV”),2 an or- ganization led by several former national legislators of both parties,3 un- veiled the proposed text for legislation (“NPV legislation”) that would guarantee a majority in the Electoral College to the winner of the national popular vote for President.4 The NPV legislation would effectively abol- ish the Electoral College by having states pass an interstate compact to pledge their electoral votes to the winner of the national popular vote. The NPV legislation promises to revive the centuries-old debate over the method for selecting the President5 and raise important questions about the founda- tions of American democracy. This Recent Development evaluates the National Popular Vote legis- lation and its likely effect on the Presidential election process. In Part I, this Recent Development discusses the Electoral College—the current system for selecting the President—ªrst by describing its origins at the Constitutional Convention, and then by commenting on the evolution of this institution over time. Part II explains the provisions of the NPV legisla- tion and examines the legislation’s progress in several states. Part III pre- sents the views of supporters and critics of the NPV legislation on the likely effects of the legislation’s enactment. Ultimately, the Recent Develop- ment concludes that the NPV legislation would probably diminish the dis- 1 See Donald Lutz et al., The Electoral College in Historical and Philosophical Per- spective, in Choosing a President 31, 47 (Paul D. Schumaker & Burdett A. Loomis eds., 2002). 2 National Popular Vote!, http://www.nationalpopularvote.com/npv/ (last visited Nov. 17, 2006). 3 The legislators included former Representative John Anderson (R-Ill.); former Sena- tor Birch Bayh (D-Ind.); and former Representative John Buchanan (R-Ala.). See Hendrik Hertzberg, Count ’Em, New Yorker, Mar. 6, 2006, at 27. 4 See John R. Koza et al., Every Vote Equal: A State-Based Plan for Elect- ing the President by National Popular Vote 248–49 (2006) (describing the motiva- tion and legal basis for the NPV legislation), available at http://www.every-vote-equal.com/ tableofcontents.htm. See also Birch Bayh, U.S. Senator from Indiana, Press Conference on Election of the President by Popular Vote (Feb. 23, 2006) (unveiling the NPV legislation with NPV members). 5 The ªrst resolution to amend the Constitution’s Presidential election provisions was introduced in 1797. See Lawrence D. Longley & Alan G. Braun, The Politics of Electoral College Reform 42 (2d ed. 1975). Since then, there have been over 1,000 proposed Constitutional amendments concerning the Electoral College. See Lutz et al., supra note 1, at 45–46. 206 Harvard Journal on Legislation [Vol. 44 parity in presidential campaign resources and media attention between battleground and spectator states, eliminate use of the House contingency procedure, and ameliorate sectionalism. However, such beneªts would come at the potential cost of increased spending on Presidential campaigns and the introduction of structural precariousness into the Presidential election system. I. The Electoral College System Selection of the President is governed by a combination of the Con- stitution (speciªcally Article II and the Twelfth and Twenty-third Amend- ments), state law, and customary practice. Article II of the Constitution mandates election of the President through the Electoral College, which is composed of electors appointed by each state and the District of Co- lumbia.6 The number of electors for each state is equal to the sum of the number of senators and representatives to which that state is entitled.7 State legislatures have complete discretion over the appointment of electors.8 The federal Constitution does not guarantee individuals a right to vote for Presidential electors, and only one state grants its citizens a state consti- tutional right to vote for Presidential electors.9 Despite freedom to choose the appointment process, virtually every state assigns its entire electoral slate to the winner of that state’s popular vote (the “winner-take-all” rule).10 Only Maine and Nebraska use the district system, which assigns an elec- tor to the winner of each congressional district’s popular vote and two electors to the winner of the state’s popular vote.11 However, neither has actually split its electoral slate between two Presidential candidates since instituting the district system.12 Once appointed, the electors meet in their 6 See U.S. Const. art. II, § 1, cl. 2. The District of Columbia receives the number of electoral votes “to which the District would be entitled if it were a State.” See U.S. Const. amend. XXIII, § 1. 7 See id. art. II, § 1, cl. 2. 8 See id. Under the Constitution, the power of the state legislatures is absolute; accord- ingly, a state may vest the power to select electors “in a board of Bank directors—a turn- pike corporation—or a synagogue.” Lucius Wilmerding, Jr., The Electoral College 43 (1958) (quoting Rep. Storrs during a debate in 1826); see Neal R. Peirce & Law- rence D. Longley, The People’s President: The Electoral College in American History and the Direct Vote Alternative 44 (1981) (“The Constitution had given the state legislatures an absolute carte blanche” to shift “the method of choosing Presidential electors from year to year for the beneªt of ruling circles in each state”). 9 See Bush v. Gore, 531 U.S. 98, 104 (2000) (per curiam) (“The individual citizen has no federal constitutional right to vote for electors for the President of the United States”). The Colorado Constitution guarantees its citizens the right to vote for President. See Colo. Const. sched., § 20; see also Koza et al., supra note 4, at 38. 10 See George C. Edwards III, Why the Electoral College is Bad for America 9 (2004) (“Since the advent of Jacksonian democracy, the states have almost exclusively used the winner-take-all method for allocating their electors to candidates.”) 11 See Me. Rev. Stat. Ann. tit. 21-A, § 802 (2005); Neb. Rev. Stat. Ann. § 32-714 (2006). 12 See Koza et al., supra note 4, at 54. 2007] Recent Developments 207 respective states on the same day to cast separate ballots for President and Vice President.13 After electors cast their ballots, the Vice President of the United States, in his capacity as President of the Senate, opens and counts the electors’ votes in the presence of the House and Senate.14 To be elected outright, a Presidential candidate must have a majority of the electoral votes.15 If no candidate wins a majority, the House elects the President using the House contingency procedure. Under this procedure, the House chooses among the three candidates with the highest electoral vote totals; when voting, the delegation from each state has one vote.16 The states’ delegations con- tinue to vote until one candidate receives a majority and thus is elected.17 The Electoral College can be best understood through an examina- tion of both its origins at the Constitutional Convention and its subsequent development. Like much of the Constitution, the Electoral College was the product of compromise after protracted disagreement.18 James Wilson, dele- gate to the Constitutional Convention from Pennsylvania, called the issue of Presidential selection “the most difªcult . on which we have had to decide.”19 Under the ªnal formulation, apportionment of electoral votes was es- sentially population-based, except for the automatic award of two electoral votes to every state.20 Delegates recognized that the House contingency procedure, which gave each state only one vote, was a major concession to small states.21 They probably also understood that the Electoral College, which assigns state electoral votes based not on voter turnout but on popula- tion alone, would beneªt southern states, as slaves could not vote but were 22 still included in the states’ population count. 13 See U.S. Const. amend. XII. 14 See id. 15 See id. 16 See id. 17 See id. 18 The Constitutional Convention deliberated on Presidential selection process for twenty-two days and held thirty votes on the subject. See Edwards, supra note 10, at 78– 79. The idea for an Electoral College may have originated with the Maryland Constitution of 1776, which chose its state senate through a complicated procedure similar to the Elec- toral College. See Peirce & Longley, supra note 8, at 22. Cf. MD. Const. of 1776, art. XIV–XVII (1776). 19 2 The Records of the Federal Convention of 1787, at 50 (Max Farrand ed., 1937). 20 See U.S. Const. art. II, § 1, cl. 2. 21 See id. 22 See Akhil Reed Amar & Vikram David Amar, Why Old and New Arguments for the Electoral College Are Not Compelling, in After the People Vote: A Guide to the Electoral College 58, 58–59 (John C. Fortier ed., 2004). For example, Pennsylvania, which had a greater free population than Virginia, received fewer electoral votes. The elec- toral votes attributable to the slave population provided the margin that elected Jefferson over Adams in 1800. As a result of including slaves in population totals, Amar and Amar argue, a white, slave-owning Virginian was President for thirty-two of the ªrst thirty-six years of the nation’s existence. See id.; see also Edwards, supra note 10, at 87 (explaining 208 Harvard Journal on Legislation [Vol. 44 As a result of such compromises, the Electoral College had “some- thing for everyone”: roughly population-based apportionment for the large states, equal state inºuence in the House contingency procedure for the small states, state legislative power over elector selection for the states’ rights supporters, and at least the possibility of a popular vote for the direct election proponents.23 Despite evidence of careful planning, the Electoral College soon de- viated from the Framers’ intentions in at least four ways.
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