I’ve come out in favor of the Electoral College before (see here).  Among other things, the EC ensures that Presidents get broad support as opposed to simply the most support, it gives minorities a bigger voice, and it makes vote fraud much more difficult.  See here for an FEC paper on the origins of the EC, and it makes for very informative reading, especially on the reason that the Founders decided not to go with a direct popular vote for the President.  (The paper was last updated in 1992, but the history is what’s important.)

In Wednesday’s "Best of the Web Today" column, James Taranto takes on the National Popular Vote Interstate Coalition.  What they’re trying to do is get enough states, accounting for at least the 270 electoral votes needed to win, to agree to direct their electors to vote for whoever wins the national popular vote, regardless of how the vote in their particular state went. 

Taranto notes that the states currently supporting it, or who’s legislatures have at least passed a bill on to their governor, all voted Democratic in at least the last 5 elections, usually by double-digit margins.  Taranto surmises (though, not really having to make a big logical leap):

It’s no mystery why this idea appeals to Democrats. They are still bitter over the disputed 2000 presidential election, in which Al Gore "won" the popular vote but George W. Bush won the actual election. Changing the rules wouldn’t necessarily benefit Democrats, but you can see why trying to do so might make them feel good.

After all, it was after the 2000 election that the NPVIC got it’s start.  Again, not much of a leap.

But there are problems with this, not even related to the question of popular vote vs electoral vote.  While the measure would be indeed constitutional, Taranto contends it would be unenforceable.

Think about that old Philosophy 101 question: If God is omnipotent, can he make a rock so big that he can’t lift it? It seems like a puzzle, but the answer is clearly no. The premise that God is omnipotent leads to the conclusion that he can both make and lift a rock of any size. "A rock so big that he can’t lift it" is a logically incoherent construct, not a limitation on God’s power.

The NPVIC is based on the similarly illogical premise that lawmakers with plenary powers can enact a law so strong that they can’t repeal it. In truth, because a state legislature’s power in this matter is plenary, it would be an entirely legitimate exercise of its authority to drop out of the compact anytime before the deadline for selecting electors–be it July 21 of an election year or Nov. 9.

Call it the problem of faithless lawmakers–somewhat akin to the question of faithless electors. Legal scholars differ on whether state laws requiring electors to vote for the candidate to whom they are pledged are constitutional. But because the power of legislatures to choose the method of selecting electors is plenary, there is no question that the Constitution would permit faithless lawmakers to exit the NPVIC.

If one or more states did so, and it affected the outcome of the election, the result would be a political crisis that would make 2000 look tame. Unlike in that case, the Supreme Court would be unable to review the matter because it would be an exercise in plenary lawmaking authority. Challenges in Congress to the electoral vote count would be almost inevitable. Whatever the outcome, it would result from an assertion of raw political power that the losing side would have good reason to see as illegitimate.

The problem here is that we’d be giving the election of our President over to what amounts to a gentleman’s agreement; an agreement that not even the Supreme Court would be able to work out, since they wouldn’t have jurisdiction. 

I’m still entirely behind the Electoral College system, and please read the link for the details (and especially the FEC paper; history is important).  But Taranto winds up with something to think about, should this gentleman’s agreement get put in place.

Since the NPVIC would be legally unenforceable, only political pressure could be brought to bear to ensure that state legislatures stand by their commitments to it. Would this be enough? Let’s put the question in starkly partisan terms: If you’re a Republican, do you trust Massachusetts lawmakers to keep their word, and to defy the will of the voters who elected them, if by doing so they would make Sarah Palin president?

Consider this.

Filed under: DemocratsGovernment

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