New York Moves the Country Closer to a Constitutional Crisis

When the delegates to what came to be called the Constitutional Convention met in Philadelphia during the hot summer of 1787, they took on the daunting task of designing a new form of government. By any measure, the Constitution they devised has proven to be remarkably enduring. It has also turned out to be unusually concise – at 4,400 words, the amended Constitution is the shortest (and oldest) written constitution of any major power.

It would be even shorter and easier to understand, however, if it hadn’t been for perhaps the most novel and Byzantine contribution of the Framers: the Electoral College. The goal behind the Electoral College was simple: to limit the influence of direct democracy in the early republic. At the same time, it reaffirmed the principle of federalism by giving states a privileged position in selecting the country’s chief executive.

Like most schemes, the Electoral College didn’t long survive prolonged contact with the enemy. The emergence of political parties in the first few electoral cycles threw the system into serious disarray, with the perverse and unforeseen result that a President and Vice President could hail from opposing political parties. That made for uncomfortable palace intrigue, and in 1803 the Twelfth Amendment was passed to facilitate the modern Presidential ticket – with a President and Vice President running for high office as a team.

Today, the Electoral College functions mostly to distribute electoral power among the states, helping to produce the familiar blue-red-purple map of America. But the fact that this is the only way that the Electoral College makes itself felt in our elections is entirely by tradition. Few Americans appreciate that there is absolutely no Constitutional guarantee that the vote in the Electoral College, held in mid-December, will in any way reflect the popular vote held a month earlier. In truth, the Electoral College is as free in selecting a President as a papal conclave is in selecting a Pope.

What is more broadly understood is that it is possible for a candidate to both win the presidency and lose the popular vote. In fact, that exact thing has happened four times – most recently when George W. Bush defeated Al Gore by five electoral votes despite receiving half a million fewer votes in the general election.

It’s certainly a testament to America’s civic soundness that the outcome of that vote was generally, if unhappily, accepted. But there has also been a sense that allowing the popular and electoral votes to diverge invites tension and might even, one day, lead to a serious crisis. If, today, the outcome of the Electoral College only has full legitimacy when it reflects the popular vote, why not do away with it altogether and elect the President directly?

The most immediate answer is because that would require a Constitutional amendment, and any change to the electoral law is bound to disadvantage one of the political parties. In this case, it would probably be the Republicans. That’s because the GOP tends to disproportionately draw its strength from the rural states that are favored in the current system. In fact, Republicans have floated an idea that moves in the opposite direction: to award electoral votes not by state, but by Congressional district. That might not sound like an enormous change, but in 2012 it would have meant that Mitt Romney would have won the Presidency with 5 million fewer votes than Barack Obama.

But opponents of the Electoral College haven’t given up; instead they’ve devised an ingenious workaround. Briefly, the idea is for states to pass legislation allocating their electoral votes to the winner of the popular vote, regardless of who wins the vote in that particular state. (The legislation doesn’t kick in until enough states have signed on to determine the outcome of the election.) Last week, New York joined the movement – which now represents a respectable 165 votes.

Not to put too fine a point on it, but this is an absolutely awful idea. Let me quickly give you three reasons why.

First, it would be a logistical nightmare. The current system requires the states to individually certify their respective vote totals. If there’s a hiccup, then that state might go into an automatic or requested recount. But the state-by-state nature of the vote inherently limits the scope of the problem. In 2000, for example, the Florida vote was incredibly close (on the order of 500 votes), and so the state went through the ordeal of an elaborate, and ultimately aborted, recount. But the vote in most states was not close, so they just watched. With more than a million-vote lead for Bush, for example, Texas could comfortably certify that its election outcome was accurate. But could it certify that it wasn’t off by 500 votes? Nationally, Bush and Gore were within half a percentage point of each other – within the threshold commonly used to require an automatic recount.

In other words, with a popular vote in place, the 2000 election could have been a whole lot more fun.

This was fun. Let's do this again.

This was fun. Let’s do this again.

Second, it would lead to increased polarization. The formula for Presidential campaigns is well known: appeal to the base during the primaries and then tack to the center for the general election. With no Electoral College, there would be little reason to do that. The Democrats, especially, would be tempted to run up the vote among their base of support. That might be a tempting prospect for liberals who would be free to push for their preferred policy ideas, but it’s not all it’s made out to be. The most likely outcome would be that the Senate would become an even more important source of obstruction as voters from small states were left with fewer ways to exert political pressure. In the end, widening the gap between the President and a majority (or veto-wielding minority) in the Senate is a poor recipe for getting more of what you want.

But it’s a great recipe for driving Americans further apart.

Lastly, and this is impossible to understate, so blatantly flaunting the Constitutional order raises grave legitimacy questions. There is no doubt that the inter-state compact being pursued by some states is legal; but there can also be little doubt that it is contrary to the spirit of the Constitution, which outlines that any fundamental change to our electoral process should only be undertaken with the overwhelming support of the Union.

The desire to effectively abolish the Electoral College is animated, in part, by a basic electoral calculus. But it is also driven by a trend that I’ve warned against before: the desire to substitute structural tinkering for substantive deal making. That was the same philosophy that gave us the sequester, which attempted to produce fiscal discipline through the mechanism of a legislative Sword of Damocles. Predictably, it failed and the sword fell through the federal budget with deleterious effect. We’ve also seen this temptation at play over the efforts to reform the Senate’s filibuster – a good idea in its own right, but also an attempt to avoid having to deal with a recalcitrant minority in that chamber.

Unfortunately, self-government doesn’t work that way and being clever will only get you out of a corner so many times. Circumventing the Electoral College might be a tactical victory for some, but for the country, it would be a colossal failure.

Follow Pedro on Twitter @IamPedroA.

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