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OP-ED | Fix a Flawed System – Use the National Popular Vote

by Andrew Fleischmann | Jan 25, 2012 10:00pm
(10) Comments | Commenting has expired
Posted to: Opinion

The National Popular Vote (NPV) initiative has gained ground across the U.S. because it does something overwhelming majorities of Americans in every state support: It ensures that the person who gets the most votes for President wins. Rep. John Hetherington’s recent criticisms of the initiative published on this site are so flawed that it’s hard to know where to start.

Along with so many others, I hope 2012 is the year that Connecticut will join the growing number of states that have passed the National Popular Vote initiative. The beauty of the initiative lies in its simplicity: the Presidential candidate with the most votes in the U.S. wins the election.

Rep. Hetherington claims that the NPV plan “allows any candidate to win without gaining a majority or even a minimum percentage of the popular vote”. This describes our current system of electing the President, as well as NPV. There is no requirement that the winner of the Electoral College receive an absolute majority of the national popular vote to win the Presidency – as evidenced by the non-majority elections of Presidents Lincoln, Wilson, Truman, Kennedy, Nixon and Clinton.

Further, under the current system, an absolute majority of the statewide popular vote is not needed to win any state’s electoral votes. In 2008 for example, no candidate received an absolute majority of the votes in four states.  And in some years that have seen multiple Presidential candidates, winners have not gotten an absolute majority in any state.

Rep. Hetherington argues that the NPV plan would somehow help extremist candidates outside the mainstream of politics. If this were true and the Electoral College system were needed to discourage these candidates, we would see extremist candidates in elections that do not use an Electoral College system - gubernatorial elections, for example.  When’s the last time you saw a fringe candidate win the Governorship in Connecticut?

Indeed, it was actually the state-by-state winner-take-all rule in our current system that encouraged extremist candidates like segregationists Strom Thurmond and George Wallace, who tried to exert influence by gaming the system and winning key states.

Rep. Hetherington goes on to say “some official in each participating state would have the awesome charge of deciding who received the most votes in the entire United States”.  This is plain nonsense.  Under existing federal law, each state has to provide a certified popular vote count to Washington a week before the Electoral College meets (the “safe harbor” date). This count is considered “conclusive” – there’s no mystery at all about it.

The Presidential candidate who gets the most votes in the United States should win the Presidential election. I hope the Connecticut General Assembly will listen to the 74 percent of Connecticut voters who agree.

Rep. Andrew Fleischmann represents the 18th district in West Hartford.

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posted by: Luther Weeks | January 26, 2012  12:40pm

Luther Weeks

There are many subjective and speculative arguments raised by Democrats and Republicans on the National Popular Vote Compact. (e.g. Would Connecticut voters benefit from campaign advertisements, more mailers, candidate sound byte visits, and telemarketing calls? Would a national popular vote actually make every vote equal given our varying state by state election laws?)

But there are problems beyond the political cased by force fitting the Compact on the current state by state system controlled by the 12th Amendment and the Electoral Accounting Act. Among these are:

- There is not (and would not be under the Compact) an official popular vote number available in time for Secretaries of the State to choose electors.
- Under the Supreme Court decisions in 2000, the vote could not be audited or recounted.
- Under law it would not be recounted in a close election or audited as only some states have audit and recount laws, which only apply based on single state results.
- We can expect any close election to be subject to many court challenges, and end up in the Supreme Court.

posted by: JohnHetherington | January 26, 2012  12:42pm

Perhaps I can help my good colleague, Andy Fleischmann, find a place to start.

Let’s start with the undisputed fact that the NPV compact opens the way for the candidate of a small faction to become President of the United States. That is because the compact awards the nation’s highest office to the candidate receiving only a bare plurality of the popular vote.  Obviously the size of the plurality needed to win decreases with more candidates. In 1992 Ross Perot as a third party candidate received almost 20% of the popular vote. Add a second Ross Perot as a fourth candidate and the winning fraction could fall to one-third of American voters.

Most lesser offices in the United States are indeed filled by a simple plurality. There is, however, limited impact from an aberrant outcome in a district, municipality or even a state. It is a different matter when we choose our national chief executive who also becomes the world’s most powerful leader.

The notion that election of a president should in some manner reflect the will of a majority is reflected in the Constitution. The Twelfth Amendment requires a majority of electoral votes in the Electoral College or the election goes to the House of Representatives where a majority of states, each casting a single vote, is needed to elect a president. Not perfect, but at least less likely to produce a president from the wings.

The matter of the 2000 election and the Florida vote is frequently cited, but NPV would not provide a solution. The problem arose precisely because Florida could not determine who won in Florida. If NPV were in effect, the chief election official in each NPV state would have to decide who carried Florida. What if they disagreed? What if there were challenges to the call of an election official? Time to lawyer-up and head to court, just like in 2000, but possibly with even more complications and uncertainty.

NPV raises very serious problems and should be rejected.

John Hetherington
Assistant Minority Leader
CT House of Representatives

posted by: mvymvy | January 26, 2012  10:47pm

With the current state winner-take-all system of awarding electoral votes, winning a bare plurality of the popular vote in the 11 most populous states, containing 56% of the population, could win the Presidency with a mere 26% of the nation’s votes.

With the current system of electing the President, no state requires that a presidential candidate receive anything more than the most popular votes in order to receive all of the state’s electoral votes.

Not a single legislative bill has been introduced in any state legislature in recent decades (among the more than 100,000 bills that are introduced in every two-year period by the nation’s 7,300 state legislators) proposing to change the existing universal practice of the states to award electoral votes to the candidate who receives a plurality (as opposed to absolute majority) of the votes (statewide or district-wide). There is no evidence of any public sentiment in favor of imposing such a requirement.
 
Since 1824 there have been 16 presidential elections in which a candidate was elected or reelected without gaining a majority of the popular vote.— including Lincoln (1860), Wilson (1912, and 1916), Truman (1948), Kennedy (1960), Nixon (1968), and Clinton (1992 and 1996).

Americans do not view the absence of run-offs in the current system as a major problem. If, at some time in the future, the public demands run-offs, that change can be implemented at that time.

When the bill is enacted by states possessing a MAJORITY of the electoral votes– enough electoral votes to elect a President (270 of 538), all the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states and DC. With National Popular Vote, citizens would continue to elect the President by a MAJORITY of Electoral College votes.

Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the “canvas”) in what is called a “Certificate of Ascertainment.” They list the electors and the number of votes cast for each.  The Congress meets in joint session to count the electoral votes reported in the Certificates of Ascertainment. You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site.

The U.S. Constitution requires the Electoral College to meet on the same day throughout the U.S. (mid-December). This sets a final deadline for vote counts from all states. In Bush v. Gore, the Supreme Court has interpreted the federal “safe harbor” statute to mean that the deadline for the state to finalize their vote count is 6 days before the meeting of the Electoral College.

With both the current system and National Popular Vote, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the common nationwide date for the meeting of the Electoral College.  In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets on the day set by federal law as the first Monday after the second Wednesday in December. 

The National Popular Vote compact is patterned directly after existing federal law and preserves state control of elections and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President.

The 2000 presidential election was an artificial crisis created because of Bush’s lead of 537 popular votes in Florida. Gore’s nationwide lead was 537,179 popular votes (1,000 times larger). Given the miniscule number of votes that are changed by a typical statewide recount (averaging only 274 votes); no one would have requested a recount or disputed the results in 2000 if the national popular vote had controlled the outcome. Indeed, no one (except perhaps almanac writers and trivia buffs) would have cared that one of the candidates happened to have a 537-vote margin in Florida.

posted by: Luther Weeks | January 27, 2012  10:15am

Luther Weeks

@MVYMVY,

As you say:

In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets on the day set by federal law as the first Monday after the second Wednesday in December.

That is the date each state must determine its electors. It is about 15 days before states are required to send in their Certificate of Attainment. The law says it must arrive by a few days after that. So it could not be used to determine the popular vote number in time for states to choose their electors if they are under the Compact.

We have no way of judging if the 500,000 or so margin for Gore in 2000 was accurate nor the counts for those earlier close elections. We have no way of knowing who would have voted in 2000 or what the margin would have been, if the NPV had been in effect. We do know that the votes in FL were not recounted and that one review of the ballots indicated that if such a recount had occurred in FL that Gore would have won under the current system.

posted by: mvymvy | January 27, 2012  2:56pm

The National Popular Vote Bill

“Article III–Manner of Appointing Presidential Electors in Member States

Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate.

The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.”

The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.

At least six days before the day fixed by law for the meeting and voting by the presidential electors, each member state shall make a final determination of the number of popular votes cast in the state for each presidential slate and shall communicate an official statement of such determination within 24 hours to the chief election official of each other member state.

The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.”

posted by: mvymvy | January 27, 2012  3:26pm

The current state-by-state winner-take-all system encourages regional candidates. A third-party candidate has 51 separate opportunities to shop around for states that he or she can win or affect the results. Minor-party candidates have significantly affected the outcome in six (40%) of the 15 presidential elections in the past 60 years (namely the 1948, 1968, 1980, 1992, 1996, and 2000 presidential elections). Candidates such as John Anderson (1980), Ross Perot (1992 and 1996), and Ralph Nader (2000) did not win a plurality of the popular vote in any state, but managed to affect the outcome by switching electoral votes in numerous particular states. Extremist candidacies as Strom Thurmond and George Wallace won a substantial number of electoral votes in numerous states.

If an Electoral College type of arrangement were essential for avoiding a proliferation of candidates and people being elected with low percentages of the vote, we should see evidence of these conjectured apocalyptic outcomes in elections that do not employ such an arrangement. In elections in which the winner is the candidate receiving the most votes throughout the entire jurisdiction served by that office, historical evidence shows that there is no massive proliferation of third-party candidates and candidates do not win with small percentages. For example, in 905 elections for governor in the last 60 years, the winning candidate received more than 50% of the vote in over 91% of the elections. The winning candidate received more than 45% of the vote in 98% of the elections. The winning candidate received more than 40% of the vote in 99% of the elections. No winning candidate received less than 35% of the popular vote.

posted by: Luther Weeks | January 27, 2012  9:02pm

Luther Weeks

@mvymvy,

Thanks for pointing out that:

At least six days before the day fixed by law for the meeting and voting by the presidential electors, each member state shall make a final determination of the number of popular votes cast in the state for each presidential slate and shall communicate an official statement of such determination within 24 hours to the chief election official of each other member state.

Obviously, this would not solve the problem since it only applies to member states of the Compact. There is no mechanism in the Compact requiring non-Compact states to comply and missing their official counts would still leave the official popular vote undetermined.

Also makes one wonder what the enforcement mechanism is for the Compact in the first place. Reading the agreement, I see no penalties or enforcement mechanism. If Compact states brought one or more states into Court, it would all have to be resolved quickly so the Compact states could meet the requirements of the 12th Amendment.

posted by: mvymvy | January 28, 2012  4:23pm

In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:

“When enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”

In 1999, the Commonwealth Court of Pennsylvania stated in Aveline v. Pennsylvania Board of Probation and Parole:
“A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”

In 1952, the U.S. Supreme Court very succinctly addressed the issue in Petty v. Tennessee-Missouri Bridge Commission:
“A compact is, after all, a contract.”

The important point is that an interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.

Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.

posted by: sharewhut | February 2, 2012  3:59pm

“With the current state winner-take-all system of awarding electoral votes, winning a bare plurality of the popular vote in the 11 most populous states, containing 56% of the population, could win the Presidency with a mere 26% of the nation’s votes.”

This is a core problem with Electoral College. Magnified by the fact that it was designed at a time where there wasn’t as much a diversity in size of state populations. NPV would not correct this as these states would still have a greater influence.
Allotting a state’s EC votes proportionally would be a more ‘fair’ representation of overall ‘desire’ of the voters.
Split the Electors based on House districts according to popular vote, with the 2 Senate based going to state winner.
I’ll leave it to someone with more time to go through and figure out effect on whole result, but looking at the largest states-
CA would have given (with 61%-37%) 32+2 to Obama and 21 to McCain.
NY @ 62-37% Obama 18+2 - 11
FL @ 51-48% Obama 13+2 - 12
TX @ 55-44% McCain 18+2- 14
Winner takes all, currently and with NPV gives overwhelming power to large cities- Obama won CA by just under 3 million votes,of which 1.2 mil was the spread in L.A..
NY won by @ 1.9 mil, won NYC(County) by 500,000.
The creation of the EC was in large part to prevent this- keep New York, Boston, Philly, and large (and ‘elite’)population centers of the East from running roughshod over less populated (typically less educated,agrarian)emerging states.
CT would have been 5-2 for Obama.Won state by @ 370,000 with over 100,000 from Bridgeport, Hartford, New Haven, & Stamford.

posted by: ASTANVET | February 2, 2012  8:35pm

The fact that these are elected officials in government who do not understand the fundamentals to why we have an electoral college and the protections that give us over massive voter fraud, is staggering!! What country do you think we live in??  we are a constitutional republic, not a democracy - democracy means mob rule.  I won’t bore you with the thoughts of the founders, as it seems the idea and their ideals would be lost on you. 

The 17th Amendment was a huge mistake, striping the power from the State to appoint senators - it has removed any allegiance to the governor and the state legislature from the Senator.  This isn’t American Idol, this is the highest office in the land.