in an editorial entitled Flunking the Electoral College the New York Times today advocates getting rid of the electoral college. Regardless of the merits of such an idea, I am alarmed at one paragraph in the editorial, which reads
The best way to abolish the Electoral College is to amend the Constitution. Until that happens, a national popular vote movement is working to get states representing a majority of the electoral votes to agree to award their votes to the candidate who has the most votes nationally. That would effectively end the Electoral College. Several states, including New Jersey and Illinois, have already enacted popular vote laws, and others are considering it.
This is, as far as I can tell, a Constitutional trainwreck, one which in a sense we narrowly avoided in 2000. Let me explain.
Allow me to quote from Amendment XIV to the United States Constitution:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Let me repeat, using ellipses, to make clear my concern:
But when the right to vote at any election for the choice of electors for President and Vice President of the United States. . . is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged . . . the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Now let me offer my analysis. Or rather, the analysis I read with respect to the election of 2000, which I believe was offered either by Anthony Amsterdam or Anthony Lewis, I do not remember which (and I have not been able to relocate the piece).
First - a state legislature has full constitutional authority to pass the National Popular Vote initiative. If it so desired, a legislature could in theory award all of its electoral votes on the basis of the length of the person's nose - there is NO restriction on the authority of the legislature's power to award electors: we do NOT have a constitutionally guaranteed right to vote for the electors of President and Vice-Presidet.
Second - the provision of the Fourteenth Amendment I have cited has never been enforced. It was intended at least in part to protect the rights of the newly freed slaves, proved insufficient for other reasons, and the issue of concern was in theory addressed by the 15th Amendment. Nevertheless it remains part of the Constitution.
Third - when the Florida Supreme Court in its first, unanimous opinion, ordered a recount in 2000, the Florida legislature, led by then-speaker (and newly defeated Congressman) Tom Feeney, started in action a process to legislatively designated electors for Bush. This was constitutionally their right, and is why I believe the actions of SCOTUS in Bush v Gore were irrelevant to the outcome of the 2000 election - once that action was begun in a legislature dominated by Republicans, Gore was never going to receive Florida's electoral votes.
Now consider the cited provision o hte 14th Amendment. In 2000 it could well have meant that Florida would have been denied ALL representation in the House of Representatives, since all people would have been denied the right to vote for electors - although the Amendment is not clear for how long: for one Congress, or for the term of office (4 years) for which people had been denied their right to vote.
The same principle would apply to any state whose legislature passed the National Popular Vote Initiative, if and when electoral votes were awarded to a candidate who had failed to carry that state - and arguable to any state participating in that initiative, even were the votes given to the candidate who had carried that state. The issue is not who get the electoral votes, but how they were awarded.
Here I have only addressed when state legislatures make the decision in favor of this Initiative. It should absolutely apparent that were the voters of a state to adopt that National Popular Vote initiative by initiative and referendum, that action would be unconstitutional - the authority of deciding how electors are awarded is reserved to the state legislatures.
Back door attempts to get around the the language of the Constitution and its ratified amendments are a very bad idea, however noble the goal.
And quite frankly, I do not think the goal itself is necessarily all that noble. Suppose the popular vote were close - are we going to recount every single ballot in the nation, with all the problems that representst? Remember that in 1960 the national popular vote margin as reported was only about 1 vote per precinct.
People are advocating on behalf of the initiative because of the reality of the impossibility of ratifying an amendment to abolish the electoral college. It takes only 13 states to reject an amendment. Consider these small states:
3 EVS: AK, MT, WY, SD, ND, DE, V
4 EVS: HA, ID, ME, NH, RI
that is 12 right there. Add any of the 4 with 5 EVs - NH, NM, NV and WV - and you have sufficient states to to block ratification of an amendment.
The electoral college forces candidates to pay attention to small states. After all, had Al Gore paid attention to NH in 2000, losing Florida would not have mattered. If all that matters is national popular vote, one could realistically argue that small states - and less populated parts of larger states - would never see a presidential candidate: it would not be strategically wise to spend time except in places to maximize the vote. But the attempt to get to 270 electoral votes can easily persuade one of the importance of NH or NV or NM - small states that are competitive between the parties.
All of that is interesting, but not relevant to my main concern. Should we reach sufficient states (totalling 270 or more electoral votes) that support this ill-conceived approach, I fear that we will find ourselves consumed by court battles even more divisive than those we already have in our elections. And what is worse? Suppose the Initiative were found not to require the suspension of House representation - which I argue would be total because all of the citizens would have been denied the right to vote for electors. Would we not have then opened the door to constitutional interpretation that says we can totally ignore clear language of the Constitution because we seek an end we cannot achieve by amendment?
I strongly oppose the Nationa Popular Vote Initiative. I think it is worse than misguided. It presents the real possibility of a Constitutional trainwreck.