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Unconstitutional or State Right? Lawmaker, Lobbyist Debate Popular Vote

by | Mar 11, 2011 4:36pm () Comments | Commenting has expired | Share
Posted to: State Capitol

During a public hearing on a measure that would add Connecticut to the National Popular Vote compact, State Rep. Andrew Fleischmann, D-West Hartford, squared off in a tense exchange with Electoral College advocate Tara Ross.

Fleischmann has been a strong supporter of adding Connecticut to a growing list of states that have entered into an agreement to cast their electoral votes to whichever presidential candidate wins the national popular vote. 

In the other corner sat Ross, a Texas lawyer and the author of a book supporting the existing Electoral College system. Ross travels the country speaking in support of the Electoral College.

Following her testimony in opposition to Fleischmann’s National Popular Vote bill, the two began a heated question and answer session that at times seemed to border on an all-out argument.

Fleischmann began by taking exception to Ross’s assertion that the state compact was unconstitutional. Ross indicated the movement represented an end-run around a Constitutional amendment to abolish the Electoral College.

Fleischmann said it’s the prerogative of each state to decide how they cast their electoral votes.

“When we [the legislature] discuss this issue, that’s our job,” he said.

In fact, states have changed how they’ve directed their electors over time, he said. He asked Ross if she was aware of how states directed them in the early 19th century.

“There was wide variety of methods, a crazy variety of methods—“she started to respond.

But Fleischmann cut in, “—actually no. There was relative uniformity. Legislatures decided how the votes were cast so there was absolutely no input from the public,” he told her.

Over time, states decided to move to a new system where voters decided how the electoral votes should be cast, he said. But that was not the original intention of the founding fathers, he said.

Ross disagreed. She said that certain states had created special districts for electing electors, separate from their congressional districts.

“So when I said there was a wide variety of a method, there was a really wide variety of methods,” she said.

But the most common involved a state legislature deciding, he said. Ross agreed that “many” did work that way.

“The majority,” he said, sharply.

Then he moved on, asking Ross if she was aware that in five presidential elections, electoral dysfunction has caused “tremendous national problems.” She responded that she’d be interested to know which elections he was speaking about.

Fleischmann said it would take too long to delve into each situation. Instead he ticked off the dates with brief descriptions—1800 and 1824 both had problems, he said.

In 1876, the national vote winner lost the election and the vote went to the House of Representatives leading to an uproar, he said.

“Oh and by the way, in 1876 it also led to questions about the end of Reconstruction. It was ended precipitously as a result. So one could argue that millions of African Americans in this country were disenfranchised due to the dealings of Congress to try to resolve the problems created by the Electoral College,” he said.

Another popular vote winner lost the election in 1888, he said. The 2000 election led to the first time in U.S. history where the Supreme Court decided the presidential election, he said. The court also said never to use that decision as a precedent, he said, adding, “which in itself is also unprecedented.”

Ross dismissed those elections as rarities.

“Yes I know that Electoral College opponents like to throw out all these close calls and say that’s why we’re on the verge of Constitutional crisis all the time. I think we’re on the verge so often it’s amazing it doesn’t happen—constantly,” she responded.

In 1876 the country as a whole was a mess of turmoil and strife, she said. It’s wrong to blame the Electoral College for what happened that year, she said. Instead she argued that the college helped to mend a divided country because Democratic candidates could never feasibly win an election without reaching out to at least one Southern state.

“I must say that’s a very unusual interpretation [of the 1876 election],” Fleischmann said.

But Ross said the national popular vote compact attempts to combine the results of 51 separate elections, each with varying rules, as if they were one single election.  That actually leads to less equality for voters around the country, she said.

Fleischmann responded that with 51 separate elections, it’s 51 times more likely that the election will end with uncertainty, leading many mathematicians to lend support to the national popular vote.

“I’ve heard that theory before,” Ross began to say.

“That’s not a theory. That’s a mathematical calculation,” he interrupted.

But Ross said if you look at the country’s history, even when one state has a close election, it doesn’t matter in the bigger picture because it’s rare that enough states are close at the same time to affect the outcome.

The 2000 election was a perfect storm, in that the national popular vote, the Electoral College vote, and Florida’s vote were all close enough to create such a controversy, she said. The great thing about our system was that when that situation occurred, the problems were isolated in Florida, where there was only one set of court battles to resolve, she said.

Fleischmann said that was a new way of looking at the election.

“In terms of your last response, I’ve never heard it put it that way—” he started.

“You need to read my book, sir,” Ross interrupted and then said, “sorry.”

The Government Administration and Elections Committee will need to vote on the bill before March 18.

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(10) Archived Comments

posted by: BMS | March 11, 2011  5:24pm

I never understood why the Supreme Court was involved in the 2000 election. If each state has the prerogative as to how they choose their electors. Then it would seem that state courts would determine state law.

posted by: mvymvy | March 11, 2011  5:56pm

A survey of 800 Connecticut voters conducted on May1415, 2009 showed 74% overall support for the idea that the President of the United States should be the candidate who receives the most popular votes in all 50 states. Voters were asked:

How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current Electoral College system?

The results of the first question, by political affiliation, was 80% among Democrats, 67% among Republicans, and 71% among others. By gender, support was 81% among women and 66% among men. By age, support was 82% among 18-29 year olds, 69% among 30-45 year olds, 75% among 46-65 year olds, and 72% for those older than 65.

Then, voters asked a second question that emphasized that Connecticuts electoral votes would be awarded to the winner of the national popular vote in all 50 states, not Connecticut, vote. In this second question, 68% of Connecticut voters favored a national popular vote.

Do you think it more important that Connecticuts electoral votes be cast for the presidential candidate who receives the most popular vote in Connecticut, or is it more important to guarantee that the candidate who receives the most popular votes in all 50 states becomes president?

The results of the second question, by political affiliation, was 74% among Democrats, 62% among Republicans, and 63% among others. By gender, support was 75% among women and 59% among men. By age, support was 75% among 18-29 year olds, 57% among 30-45 year olds, 68% among 46-65 year olds, and 70% for those older than 65.


posted by: Another view | March 11, 2011  6:10pm

There is no good reason to maintain the flawed, undemocratic and archaic electoral college system.  Fleischman is correct and the right wing “expert” from Texas is clearly a hack for the status quo.

posted by: mvymvy | March 11, 2011  6:11pm

Because of the state-by-state winner-take-all electoral votes laws (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in each state) in 48 states, a candidate can win the Presidency without winning the most popular votes nationwide.  This has occurred in 4 of the nation’s 56 (1 in 14) presidential elections.  The precariousness of the current state-by-state winner-take-all system is highlighted by the fact that a shift of a handful of votes in one or two states would have elected the second-place candidate in 4 of the 13 presidential elections since World War II.  Near misses are now frequently common.  There have been 6 consecutive non-landslide presidential elections (1988, 1992, 1996, 2000, 2004, and 2008). 537 popular votes won Florida and the White House for Bush in 2000 despite Gore’s lead of 537,179 popular votes nationwide. A shift of 60,000 votes in Ohio in 2004 would have defeated President Bush despite his nationwide lead of over 3 million votes.

posted by: mvymvy | March 11, 2011  6:14pm

The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).
The bill preserves the Electoral College, while assuring that every vote is equal and that every voter will matter in every state in every presidential election. 

Every vote, everywhere, would be politically relevant and equal in presidential elections. Elections wouldn’t be about winning states. No more distorting and divisive red and blue state maps.  Every vote, everywhere would be counted for and directly assist the candidate for whom it was cast. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.
In the 2012 election, pundits and campaign operatives already agree that only 14 states and their voters will matter under the current winner-take-all laws (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in each state) used by 48 of the 50 states.  Candidates will not care about 72% of the voters—voters in 19 of the 22 lowest population and medium-small states, including Connecticut, and big states like CA, GA, NY, and TX.  2012 campaigning would be even more obscenely exclusive than 2008 and 2004. In 2008, candidates concentrated over 2/3rds of their campaign events and ad money in just 6 states, and 98% in just 15 states (CO, FL, IN, IA, MI, MN, MO, NV, NH, NM, NC, OH, PA, VA, and WI).  Over half (57%) of the events were in just 4 states (OH, FL, PA, and VA). Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind. 

Now, policies important to the citizens of ‘flyover’ states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

The bill would take effect when enacted by states that have a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538). Then, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

The Electoral College that we have today was not designed, anticipated, or favored by the Founding Fathers but, instead, is the product of decades of evolutionary change precipitated by the emergence of political parties and enactment by 48 states of winner-take-all laws,  not mentioned, much less endorsed, in the Constitution.

The bill uses the power given to each state by the Founding Fathers in the Constitution to change how they award their electoral votes for president.  Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.

posted by: CitizenCT | March 11, 2011  10:53pm

Popular vote would even further diminish the role CT plays in a presidential election.  Why campaign in a small state like CT if you can win their support by dominating in more populous states like California or Texas.  Popular vote makes CT a small after thought follower.  Our voice is louder with the electoral college method.

posted by: UhOh | March 11, 2011  11:05pm

Rep. Fleischman holds such contempt for anyone who didn’t graduate from an ivy league. 

He was rejected by his own colleagues to be the next Majority Leader of the House of Representatives, then passed over for the open chair seats on the Appropriations, Finance, and Judiciary committees. 

The Democrats should find a better spokesperson.

posted by: Brian Parker | March 12, 2011  1:33pm

Brian Parker

I may be reading this wrong. CT votes all electoral votes with whoever the National Winner is?

Why do citizens of CT vote than? Just wait for the result of the nation and that’s what we’ll do. I guess unless the election is razor close.

Further, let’s say 100% of the citizen of CT vote for the democrat running for president. If the Republicans win the popular vote, all CT electoral college votes go to the republican—which no one in the state wanted…

I must be reading this wrong, yes?

(aside - anyone else having trouble logging into their account here; been wanting to change my avatar for a while but keep getting an error message)

posted by: mvymvy | March 12, 2011  2:56pm

The 11 most populous states contain 56% of the population of the United States and a candidate would win the Presidency if 100% of the voters in these 11 states voted for one candidate.  However, if anyone is concerned about the this theoretical possibility, it should be pointed out that, under the current system, a candidate could win the Presidency by winning a mere 51% of the vote in these same 11 states—that is, a mere 26% of the nation’s votes. 

The political reality is that the 11 largest states rarely agree on any political question.  In terms of recent presidential elections, the 11 largest states include five “red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey).  The fact is that the big states are just about as closely divided as the rest of the country.  For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry. 

Moreover, the notion that any candidate could win 100% of the vote in one group of states and 0% in another group of states is far-fetched.  Indeed, among the 11 most populous states, the highest levels of popular support , hardly overwhelming, were found in the following seven non-battleground states:
* Texas (62% Republican),
* New York (59% Democratic),
* Georgia (58% Republican),
* North Carolina (56% Republican),
* Illinois (55% Democratic),
* California (55% Democratic), and
* New Jersey (53% Democratic). 

In addition, the margins generated by the nation’s largest states are hardly overwhelming in relation to the 122,000,000 votes cast nationally.  Among the 11 most populous states, the highest margins were the following seven non-battleground states:
* Texas—1,691,267 Republican
* New York—1,192,436 Democratic
* Georgia—544,634 Republican
* North Carolina—426,778 Republican
* Illinois—513,342 Democratic
* California—1,023,560 Democratic
* New Jersey—211,826 Democratic

To put these numbers in perspective, Oklahoma (7 electoral votes) alone generated a margin of 455,000 “wasted” votes for Bush in 2004—larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes).  Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).

posted by: mvymvy | March 12, 2011  3:00pm

Under National Popular Vote, when every vote counts, successful candidates will continue to find a middle ground of policies appealing to the wide mainstream of America.  Instead of playing mostly to local concerns in Ohio and Florida, candidates finally would have to form broader platforms for broad national support.  It would no longer matter who won a state.

Now political clout comes from being a battleground state.  Connecticut is ignored.

If the National Popular Vote bill were to become law, it would not change the need for candidates to build a winning coalition across demographics. Candidates would still have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as voters in Ohio.

With National Popular Vote, every vote, everywhere, would be politically relevant and equal in presidential elections. It would no longer matter who won a state.  Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.

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