Unconstitutional or State Right? Lawmaker, Lobbyist Debate Popular Vote
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.