Thursday, July 3, 2008

Deep-Sixing Two and Five

On June 29, Katrina vanden Heuvel was part of the Round Table discussion on This Week with George Stephanopoulos. While discussing the possibility that a Bob Barr third-party candidacy might draw enough votes away from John McCain to open up states like Alaska and Georgia for an Obama victory, vanden Heuvel said:

We’ve been talking about expanding the electoral map. I think until you bust open the Electoral College - which I hope we’ll do in 2012 - you can’t expand it that much.

This struck me as odd since four years is not very long to pass the Constitutional amendment that would be needed to do away with the Electoral College. Or would it? I turned to Wikipedia and eventually found The National Popular Vote Interstate Compact, also known as The Amar Plan. This, it turns out, is precisely what vanden Heuvel had in mind.

Under The National Popular Vote Interstate Compact (TNPVIC), individual states agree to abide by the national popular vote. In other words, regardless of how voters in a particular state vote, that state will cast all its electoral votes for whoever wins the popular vote nationally. TNPVIC further specifies that states can agree to the Compact but their agreement will not take effect until states controlling a majority of electoral votes have signed onto TNPVIC. As Wikipedia points out, this means that as few as eleven states could put this Compact into effect: the eleven states with the most electoral votes control a majority of those votes.

It is not clear whether TNPVIC is Constitutional. On the one hand, Article Two, Section 1, Clause 2 of the Constitution allows each state to decide for itself how to apportion its electoral votes. On the other hand, Article One, Section 10, Clause 3 (the Compact Clause) forbids states from entering into compacts with other states without Congressional approval. On the third hand, the extent of the Compact Clause’s prohibition seems to be unclear. Even if TNPVIC is Constitutional, however, it is clearly an attempt to make an end-run around the mechanism for amending the Constitution provided in Article Five.

Article Five requires a two-thirds vote of quorums of both Houses of Congress or a request by two-thirds of the state legislatures to even propose amending the Constitution. It further requires that three-fourths of the states (either by Legislature or Convention) approve the amendment before it takes effect. And, in fact, there have been previous attempts to abolish the Electoral College using the Constitutionally prescribed amendment process. Since these attempts failed, TNPVIC was devised to do away with the need for those pesky super-majorities: the Compact could effectively amend the Constitution with only eleven/fiftieths of the states agreeing. Not only does this approach treat the Constitution as a system to be beaten rather than the highest law of the land, it drives another nail into the coffin of Federalism.

Alongside my outrage, however, I must admit to some amusement. I’m not entirely sure the lawmakers and governors who support TNPVIC have thought this through. The Compact was dreamed up in 2001. It doesn’t take a Constitutional lawyer to conclude that the scheme was originally developed in response to the 2000 Presidential election in which Al Gore won the popular vote and George W. Bush won the Electoral College. Based on the timing - and on Katrina vanden Heuvel’s approval - I’m guessing TNPVIC is driven primarily by Democratic outrage over being cheated out of the Presidency in 2000. I’m further guessing that Democrats suspect it’s unlikely approaching impossible that there will be a situation where Republicans win the popular vote but Democrats win the Electoral College. What if they’re wrong?

As a starting point, let’s assume the 2008 election will look just like the 2000 election - and then we’ll change a few things and see what happens.

First, let’s say that all the states that went for Gore in 2000 approve TNPVIC in time for the 2008 election. That would mean states controlling 260 electoral votes would have approved the Compact. (This number is different from the 266 electoral votes Gore received because redistricting has changed the electoral vote map. And because there was one abstention by a District of Columbia elector. Who knew?) To get TNPVIC to go into effect, it needs states controlling 270 votes to agree to the Compact. So let’s say Florida also signs onto TNPVIC. That means that states controlling 287 electoral votes have now approved TNPVIC and it will take effect for the 2008 election.

Second, let’s say that every state that went for Gore goes for Obama. And let’s give Obama Florida by saying that 1000 Floridians who voted for Bush now decide to vote for Obama. Now Obama has 287 electoral votes, all of them from states that signed on to TNPVIC, and Obama has the popular vote. Obama is the President and all is well. But what if there’s a shift - just a slight shift - in the popular vote?

In 2000, Bush got 50,455,156 votes; these become McCain’s votes in 2008. Gore got 50, 992,335 votes; these become Obama’s votes in 2008. We’ve already taken 1000 Florida votes away from McCain and given them to Obama, so now our numbers are:
McCain - 50,454,156
Obama - 50,993,335

Obama is winning the popular vote by 539,179. In 2008 there were 6 states where the margin of victory was less than 12,000 votes: Florida, Iowa, New Hampshire, New Mexico, Oregon, and Wisconsin. That leaves 44 states plus the District of Columbia where we can play with the popular vote a little. Let’s say that in each of these 45 states (yes, I know DC is not a state) there’s a swing in the popular vote of 12,000. That is, in each of these 45 states 6,000 people who voted for Gore decide to vote for McCain. That means McCain would pick up 270,000 votes and Obama would lose 270,000 votes.

Now our popular vote looks like this:
McCain - 50,724,156
Obama - 50,723,335

Oops! Guess who gets to be President? And guess how happy the voters in the states that signed on to TNPVIC are going to be when their elected officials inform them that, yes, we know you voted for Obama and, yes, we know he won the Electoral College and, yes, we know he should be President, but we’re going to cast our electoral votes for McCain?

I’m sure the supporters of the TNPVIC consider an outcome like this very unlikely. But I think there’s a good chance this scenario or one very like it will happen. Look at it this way. More than 225 years ago a group of pretty smart guys wrote a Constitution that embodied a new way of looking at government and at the same time glued a bunch of disputatious states into one nation. That Constitution has served us well for all these years, amended as necessary by a mechanism designed to be as difficult as possible and thereby to avoid the tyranny of the majority. Now a group of people, many angry at losing and all tired of playing by the rules, are willing to do whatever it takes to get their way. If that means cutting the heart out of two Articles of the Constitution, that’s fine with them because they know how this country should be governed far better than those old-timers in funny clothes.

I call that hubris. And as our forefathers in democracy taught us, nothing follows hubris as inexorably as nemesis.


Sources, numbers, and a confession:

Presidential Election of 2000, Electoral and Popular Vote Summary

Wikipedia - United States presidential election, 2000 (detail)

Wikipedia - United States presidential election, 2000

Wikipedia - List of U.S. states by population

I took the transcript of Katrina vanden Heuvel’s comment from my own tape of This Week with George Stephanopoulos. You can find the video at This Week under “The Roundtable”. (I assume this moves off the main site once the next show airs.) Her comment about the Electoral College should begin about 7-8 minutes in.

The final numbers in this post look pretty simple, but I juggled numerous articles and four spreadsheets to get to them. I love my iMac but I hate not being able to put code behind Appleworks' spreadsheet the way I could behind Excel. If you find any mistakes, please let me know.

Although the existence of The National Popular Vote Interstate Compact came as a surprise to me, my home state of New Jersey is one of four states that have signed onto this deal. My only excuse for not realizing this is that the Legislature did this in 2007 when for good reason I was paying absolutely no attention to politics. The other three states that have signed onto the Compact are: Maryland, Illinois, and Hawaii. All four of these states went for Gore in 2000. They also went for Kerry in 2004; and Clinton in 1992 and 1996.

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