Graduating from the Electoral College

Republican efforts to "reform" how California casts its votes in the Electoral College have quietly, and deservedly, collapsed—for now. A group called "Californians for Equal Representation" (CFE), led by a Republican lawyer and supported by Governor Arnold Schwartzenegger, failed to collect the 434,00 signatures they needed to place it on the ballot. According to the San Francisco Chronicle, the Presidential Election Reform Act

...would have changed the state's winner-take-all means of awarding Electoral College votes to a proportional system that would have awarded 53 of the state's 55 electoral votes - one by one - to the popular vote winner of each of the state's 53 congressional districts. The other two electoral votes would have gone to the statewide popular vote winner.

The Electoral College may be an antiquated and antidemocratic institution, and its abolition is long overdue, but the CFE's campaign was a brazen attempt to weaken Democrats' hold on the largest bloc of electoral votes in the country. If passed, it might've given Republicans 20 electoral votes (about equal to Ohio or Pennsylvania) that otherwise would've gone to Democrats.

Not surprisingly, the "Equal Representation" effort focused only on California, ignoring the electoral votes of Texas—with its 34 Republican votes—and all other states.

The need for serious reform seems clear enough. For example, a Wyoming voter has about four times the clout in the Electoral College as voters in the largest states. As our smallest state in population, Wyoming has one vote for every 171,668 residents, compared to one vote per 662,865 Californians or 691,405 Texans. (My own state, Oregon, casts one vote per 528,680 residents—giving each of us just 1/3 the impact of a Wyoming voter.)

Despite these disparities, outright abolition of the Electoral College, through a constitutional amendment, simply ain't gonna happen. The legislatures of the fourteen smallest states could easily block, forever, an amendment that would end a system that gives them a disproportionate influence on presidential elections.

An intriguing alternative, of uncertain constitutionality, has been advanced by two law professors (and brothers), Akhil Reed Amar and Vikram Amar. Under the Amar Plan for an interstate agreement, participating states would cast all their electoral votes for the candidate who won the national popular vote. This National Popular Vote Interstate Compact would go into effect when enough states had accepted it to determine the result of the election. Once the members of the compact could command 270 votes, in other words, they could swing the election to the winner of the national popular vote no matter how the other states cast their electoral votes.

National Popular Vote has begun a campaign that is sure to encounter resistance from smaller states and those who fear the domination of national politics by the eleven largest states, who between them could control the 270 votes needed to elect a president.

How would courts rule on the constitutionality of the Compact, if it is ever adopted? States can determine their own methodologies for casting electoral votes, and there's no constitutional provision that specifically conflicts with the Compact. In fact, the Constitution provides that "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..." [1]

Republicans will oppose the Compact, for obvious reasons. If it had been in place in 2000, Al Gore's narrow victory (by half a million votes) in the popular would've changed the result. Instead, he lost in the Supreme Court by one vote—and by 271 votes to 266 in the Electoral College.

NOTES

[1] Two states, Maine and Nebraska, already allow for split votes in the Electoral College.

GRAPHIC: 2000 election results in the Electoral College, with each square representing one vote (click for larger version).