Last updated on 2011.02.01
Senate Bill 138 is the South Dakota incarnation of legislation promoted nationwide by the National Popular Vote movement. The bill is actually an agreement to join an interstate compact in which member states promise to appoint their delegates to the Electoral College based on the national popular vote.
In other words, in 2000, SB 138 would have bound Secretary of State Joyce Hazeltine to designate three Democrats as South Dakota's Electors, based on the fact that Al Gore won the most popular votes nationwide, even though George W. Bush beat Al Gore 60--38 in South Dakota.
When I received the press release on SB 138 Friday, I felt an early urge to oppose. I like the Electoral College. It's a fun game. It makes the election map look like Risk. It gives high school civics teachers one more cool lesson plan. The Electoral College is like your crazy uncle: he does things a little differently, but he's still fun to have around.
More seriously, I thought, "Isn't that illegal?" Don't you need a Constitutional amendment to mess with the Electoral College?
Actually, no. SB 138 isn't an unconstitutional bill; it's a non-constitutional end run around that hoary process laid out in Article 2, Section 1 and the Twelfth Amendment. The Constitution makes clear that the President and Vice-President shall be chosen by the Electoral College; however, it also makes clear that the members of the Electoral College shall be appointed by each state "in such Manner as the Legislature thereof may direct." Assigning South Dakota's Electors on the basis of the national popular vote is no more of a deviation from the Founding Fathers' intent than our current system of assigning all three of our Electors based on our state's popular vote, or Nebraska's system of appointing Electors based on popular vote within each Congressional district.
Mr. Crissman has already jumped on the anti-SB138 wagon, though his reasoning is thin at best. After confusing primaries with general elections and insinuating that SB 138 sponsor Rep. Tad Perry is questioning G.W. Bush's legitimacy, Mr. Crissman seems to argue that the Electoral College protects us from tyrants using money and media to influence the vote.
If we need, as various Founders feared, a check on media-savvy demagogues and the passions of the mob, the Electoral College as currently constituted is no such check. Besides, we have tools for education, communication, and participation that the Founders did not. As a small-d democrat who believes certainly in the right and mostly in the ability of modern people to govern their own affairs (Ã la Blanchard and Fukuyama?), I have a hard time opposing measures that put decisions more directly in the hands of the electorate.
If there are grounds for opposing the National Popular Vote bill, they may lie less in individual rights and more in states' rights. SB 138 addresses a national issue, how we elect our President. SB 138, if passed by our Legislature, would come into effect as an interstate compact when states possessing a majority of the Electoral College votes (270 or more) have signed on to the deal. The eleven largest states, which together now hold 270 Electoral votes, could thus enact this deal and impose the national popular vote scheme on the entire nation.
NationalPopularVote.com reports six states and the District of Columbia have enacted forms of their bill. Those enactors hold 74 Electoral votes. Seven more states could sign on and decide the issue for the rest of us. Even if we reject SB 138, a minority of other states could render moot South Dakota's choice of how to exercise its Constitutionally guaranteed power appoint Electors as the Legislature sees fit.
Therein lies the prospect for a Constitutional challenge to SB 138. It's not a bright prospect, but it's worth considering. If we really want to send away our crazy uncle, the Electoral College, maybe we shouldn't let just a handful of our big-city cousins make that call. If the national popular vote for President is the right way to go, maybe we need to build nationwide consensus, or at least the old-fashioned three-quarters states' majority, to make it happen.
Update 2011.02.01 07:04 CST: The formidable Dr. Blanchard weighs in with some educated analysis of NPV and a simpler alternative that achieves a similar movement toward aligning popular and Electoral votes while preserving states' rights. Expect commenter "kohler" to throw more spam without listening to what we're saying about our own state's affairs.
I can only imagine the outrage in SD if Hazeltine would have given Gore the votes and also Obama.
SD Voters would purge the legislature to change the process.
As of 2010, the National Popular Vote bill has been enacted by seven jurisdictions possessing 74 electoral votes (that is, 27% of the 270 electoral votes needed to bring the compact into effect). The seven jurisdictions are a mix of small, medium, and large states and include:
â— Hawaii (a small state),
â— the District of Columbia (small),
â— Maryland (an average-sized state),
â— Massachusetts (an averaged sized states),
â— Washington (an average-sized state),
â— New Jersey (a fairly large state), and
â— Illinois (a large state).
An extrapolation from these actual initial numbers indicates that about 25 states (i.e., half of the states) will be needed to reach the 270 electoral votes needed to bring the National Popular Vote compact into force.
That is, the projected number of states needed, in the real world, is not 11, but, instead, approximately 25.
Such a group of states would essentially represent a majority of the American people.
The National Popular Vote bill has considerable support in small states. As of 2010, it has been enacted by Hawaii and the District of Columbia. As of 2010, the bill has been approved by a total of nine legislative chambers in small states, including the Maine Senate, Delaware House, and both houses in the Vermont and Rhode Island (as well as two chambers in Hawaii and one in the District of Columbia). Public opinion polls show a high level of support for a nationwide election for President in the small states of
â— Alaska (70%),
â— Delaware (75%),
â— District of Columbia (76%),
â— Idaho (77%),
â— Maine (77%),
â— New Hampshire (69%),
â— Vermont (75%),
â— Rhode Island (74%)
In fact, public support for a national popular vote runs slightly higher than the national average in many of the smallest states.
A survey of 1,045 South Dakota voters conducted on January 28–30, 2011, showed 71% overall support for the idea that the President of the United States should be the candidate who receives the most popular votes in all 50 states.
Voters were asked:
“How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current Electoral College system?â€
By political affiliation, support for a national popular vote was 61% among Republicans, 82% among Democrats, and 77% among others. By gender, support was 83% among women and 59% among men. By age, support was 73% among 18-29 year olds, 67% among 30-45 year olds, 70% among 46-65 year olds, and 77% for those older than 65.
Most voters don't care whether their presidential candidate wins or loses in their state . . . they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was counted and mattered to their candidate.
A national popular vote is the only way to give voters in the nation’s small states a voice in presidential elections. Under a national popular vote, a vote in a small state would be as important in as a vote in a battleground states such as Pennsylvania.
The current system of electing the president ensures that the candidates, after the primaries, do not reach out to all of the states and their voters. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind. The reason for this is the state-by-state winner-take-all method (not mentioned in the U.S. Constitution, but since enacted by 48 states), under which all of a state's electoral votes are awarded to the candidate who gets the most votes in each separate state.
Presidential candidates concentrate their attention on only a handful of closely divided "battleground" states and their voters. In the 2012 election, pundits and campaign operatives agree already, that only 14 states and their voters will matter. Almost 75% of the country will be ignored --including 19 of the 22 lowest population and medium-small states, and big states like California, Georgia, New York, and Texas. This will be more obscene than the already outrageous facts that in 2008,, candidates concentrated over 2/3rds of their campaign events and ad money in just 6 states, and 98% in just 15 states (CO, FL, IN, IA, MI, MN, MO, NV, NH, NM, NC, OH, PA, VA, and WI). Over half (57%) of the events were in just 4 states (Ohio, Florida, Pennsylvania and Virginia). In 2004, candidates concentrated over 2/3rds of their money and campaign visits in 5 states; over 80% in 9 states; and over 99% of their money in 16 states.
2/3rds of the states and people have been merely spectators to the presidential elections.
12 of the 13 lowest population states (3-4 electoral votes) are almost invariably non-competitive, and ignored, in presidential elections. Six regularly vote Republican (Alaska, Idaho, Montana, Wyoming, North Dakota, and South Dakota),, and six regularly vote Democratic (Rhode Island, Delaware, Hawaii, Vermont, Maine, and DC) in presidential elections. So despite the fact that these 12 states together possess 40 electoral votes, because they are not closely divided battleground states, none of these 12 states get visits, advertising or polling or policy considerations by presidential candidates.
These 12 states together contain 11 million people. Because of the two electoral-vote bonus that each state receives, the 12 non-competitive small states have 40 electoral votes. However, the two-vote bonus is an entirely illusory advantage to the small states. Ohio has 11 million people and has "only" 20 electoral votes. As we all know, the 11 million people in Ohio are the center of attention in presidential campaigns, while the 11 million people in the 12 non-competitive small states are utterly irrelevant. Nationwide election of the President would make each of the voters in the 12 lowest population states as important as an Ohio voter.
The fact that the bonus of two electoral votes is an illusory benefit to the small states has been widely recognized by the small states for some time. In 1966, Delaware led a group of 12 predominantly low-population states (North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, Pennsylvania) in suing New York in the U.S. Supreme Court, arguing that New York's use of winner-take-all effectively disenfranchised voters in their states. The Court declined to hear the case (presumably because of the well-established constitutional provision that the manner of awarding electoral votes is exclusively a state decision). Ironically, defendant New York is no longer a battleground state (as it was in the 1960s) and today suffers the very same disenfranchisement as the 12 non-competitive low-population states. A vote in New York is, today, equal to a vote in South Dakota--both are equally worthless and irrelevant in presidential elections.
The 11 most populous states contain 56% of the population of the United States and a candidate would win the Presidency if 100% of the voters in these 11 states voted for one candidate. However, if anyone is concerned about the this theoretical possibility, it should be pointed out that, under the current system, a candidate could win the Presidency by winning a mere 51% of the vote in these same 11 states -- that is, a mere 26% of the nation's votes.
The political reality is that the 11 largest states rarely agree on any political question. In terms of recent presidential elections, the 11 largest states include five "red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six "blue" states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.
Moreover, the notion that any candidate could win 100% of the vote in one group of states and 0% in another group of states is far-fetched. Indeed, among the 11 most populous states, the highest levels of popular support , hardly overwhelming, were found in the following seven non-battleground states:
* Texas (62% Republican),
* New York (59% Democratic),
* Georgia (58% Republican),
* North Carolina (56% Republican),
* Illinois (55% Democratic),
* California (55% Democratic), and
* New Jersey (53% Democratic).
In addition, the margins generated by the nation's largest states are hardly overwhelming in relation to the 122,000,000 votes cast nationally. Among the 11 most populous states, the highest margins were the following seven non-battleground states:
* Texas -- 1,691,267 Republican
* New York -- 1,192,436 Democratic
* Georgia -- 544,634 Republican
* North Carolina -- 426,778 Republican
* Illinois -- 513,342 Democratic
* California -- 1,023,560 Democratic
* New Jersey -- 211,826 Democratic
To put these numbers in perspective, Oklahoma (7 electoral votes) alone generated a margin of 455,000 "wasted" votes for Bush in 2004 -- larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 "wasted" votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).
I don't disagree with your head count, Kohler, but one of the points is not who will vote for it but the fact that the process makes it possible for just 11 large states to do it, an exercise of large-state power over small-state power that the Founders wanted to mitigate if not prevent.
Under the CURRENT SYSTEM, a candidate could win the Presidency by winning a mere 51% of the vote in the 11 largest states — that is, a mere 26% of the nation’s votes.
Quite true, Kohler. We haven't seen a President elected by a majority of Americans for quite some time. However, the scenario to which you refer is a product of the action of individual voters. The action to which I'm referring is the action of 11 state legislatures who effectively negate the ability of other states to exercise a constitutionally granted power. The scenarios are different and worth investigating.
Expect something like this from the Republicans next.
In 1966, Delaware led a group of 12 predominantly low-population states (North Dakota, South Dakota, Wyoming, Utah, Arkansas, Kansas, Oklahoma, Iowa, Kentucky, Florida, Pennsylvania) in suing New York in the U.S. Supreme Court, arguing that New York’s use of winner-take-all effectively disenfranchised voters in their states. The Court declined to hear the case (presumably because of the well-established constitutional provision that the manner of awarding electoral votes is exclusively a state decision).
Heck of a link, Larry. But I'm still searching for a partisan twist on this plan. Does one party or another benefit from NPV and SB 138?
Hey, Kohler, now you're just spamming the same old cut-and-paste from the NPV FAQs. I've already linked to their site. Try keeping it original... or cite your sources.
Cory: Good post. I have posted on the same topic after reading this. I have some disagreements with you here, though they are minor. I will mention one. No president has ever been elected by a majority of the people. Many Presidents have been elected by a majority of the popular vote. Obama was one. Bush 43 (2004) and Bush 41 (1998) are examples.
For reasons I lay out in my post, the National Popular Vote idea is too clever by half.
Well argued, Dr. Blanchard!
Dr. Blanchard articulates my concerns very nicely, and offers an alternative that may prove more beneficial for correcting the popular vs electoral college votes.