Electoral College opponents may be nearly halfway to their goal of eliminating America's unique presidential election system. But you won't hear anything about it from the media that are understandably obsessed with health-care reform, cap and trade, and the troubled economy. And you certainly won't hear anti-Electoral College activists brag about it. The "National Popular Vote" website proclaims, more modestly, that NPV has achieved 23 percent of the votes that it needs to succeed.
Why would NPV raise the consciousness of a nation to the fact that it may be much, much closer to radical change in our presidential election system? If voters were to focus on NPV's recent legislative successes, the resulting protests might bring the whole scheme to a crashing halt.
NPV is the architect of anti-Electoral College legislation that has been introduced in many state legislatures. Approval of the legislation commits states to an interstate compact. This compact requires each participating state to allocate all its electors to the winner of the nationwide popular vote. Currently, most states award their electors to the winner of the statewide popular vote. The compact goes into effect when states holding 270 electoral votes (a majority) have agreed to participate. So far, Hawaii, Illinois, Maryland, New Jersey, and Washington (61 electoral votes, total) have approved the plan.
Most state legislatures have approached NPV's proposal with the assumption that the normal legislative process applies to their consideration of the legislation. They have thus assumed that gubernatorial vetoes could validly defeat their efforts to join the interstate compact. Indeed, in three states, the legislature approved NPV but presumed itself defeated when the governor vetoed the plan: (California, Vermont, Rhode Island; 62 electoral votes, total--although the Rhode Island legislature recently reversed itself, considering but failing to reapprove NPV in 2009).
Unfortunately, there is a valid legal argument that this legislative assumption is wrong. Article II of the Constitution requires state legislatures to determine the manner of elector allocation in their states. It clearly provides, "Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors . . . ." The legal question is whether this use of "legislature" refers to the state lawmaking process or to the formally elected body.
In Bush v. Gore, Chief Justice Rehnquist's concurrence arguably sided for the latter. He wrote that a state judiciary could not tread on the Article II responsibilities of the state legislature. Could a state governor?
If gubernatorial approval is unnecessary, then California, Vermont, and potentially Rhode Island should also be added to the list of states participating in NPV. Adding these states to the total brings the total number of participating electoral votes to 123 (46 percent of the total), not 61 (23 percent of the total).
You can be sure that NPV knows this. They are simply waiting for the right time to challenge gubernatorial vetoes.
It is well past time for voters to sit up and pay attention to the radical change that could soon be shoved on us all. Devastating ramifications would follow any elimination of the Electoral College, but NPV's attempt to do so by skirting the constitutional amendment process creates unique logistical difficulties.
NPV's compact gives the presidency to the winner of the "largest national popular vote total." Note that it says the "largest" total, not a majority. The compact does not so much as designate a threshold that must be attained for a winning plurality. Nor is provision made for a run-off because NPV can't force non-participating states to conduct run-offs. Thus, a presidential candidate could win with only 15 percent of votes nationwide. But it gets worse. Under this scheme, a state could be forced to award its entire slate of electors to a candidate who was not on its own ballot. What if voters in New York and Massachusetts throw all their weight behind one regional candidate? That person may not be on the ballot in a state like Washington, but all 11 electors from Washington would be given to that Northeastern regional candidate if that candidate obtains any winning (albeit small) nationwide plurality.
Washington probably did not nominate a slate of electors for the third-party candidate in our example. Never fear. NPV's compact allows the winning candidate to select his own slate. Perhaps he would select citizens of New York to represent Washington in the Electoral College vote. He'd hate to be undermined by a "faithless" Washington elector, determined to vote for the winning candidate in his home state.
There are other inconsistencies among states' ballots that would skew the election results. Some states allow felons to vote. Others do not. States differ in their requirements for ballot qualification. Inevitably, some states would have to abide by national election results derived from policies with which they disagree.
It gets worse. States have different criteria for what does (or does not) trigger recounts within their borders. These differences could cause a whole host of problems. What if the national total is close--close enough to warrant a recount--but a recount can't be conducted because the margins in individual states were not close? Or perhaps recounts are conducted, but only in two or three states, each with a different idea of how to count a hanging chad. Perhaps a fourth state would see what is going on and choose to conduct a recount that its statutes previously deemed optional. Maybe this fourth state has a different definition of "hanging chad," and its sole goal is to counteract the efforts of the other states.
Such a state of affairs invites chaos, litigation, and confusion each and every election year. Some voters will be disenfranchised by the widely differing ideas of how to count a vote.
What if such problems caused one state to pull out of the compact in violation of its terms? How would compliance be enforced? How much litigation would ensue before the presidential election could be resolved?
Formally eliminating the Electoral College through a constitutional amendment would be unhealthy for the country. But NPV's efforts to skirt the constitutional amendment process is even worse. At least a constitutional amendment would give Americans the opportunity to put one national set of rules and one national process in place before pretending that it is possible to come up with one national tally of voters' preferences.
Defenders of the Constitution need to rise up, take action, and defeat NPV before it is too late.
Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College.