The Electoral College was one of the least controversial provisions of the original Constitution. The state-by-state way we elect the President of the United States gives each state a number of Electoral Votes equal to the sum of their U.S. Representatives and Senators (and Washington, D.C., gets three). Nearly all states award all of their electoral votes to the candidate who receives the most votes in their state (Nebraska and Maine apportion some by congressional district). To win, a candidate must collect the majority of electoral votes (270 of 538), or else the election goes to the House of Representatives (which also has a majority requirement). The Electoral College makes presidential campaigns and elections primarily a state responsibility, part of the American constitutional system called federalism.

Electoral College Map

Federalism, and the Electoral College in particular, reflect the belief that stable institutions are essential for maintaining a political regime and preserving a free society. They are products of the understanding that freedom is never the result of simple legal or even constitutional commands. Freedom requires institutions that channel potentially dangerous political passions into constructive compromise and coalition building. The Electoral College system does this; the proposed “National Popular Vote” interstate compact does not.

National Popular Vote is a San Fransisco-based organization founded and funded by Dr. John Koza. It is also the name of Dr. Koza’s proposal to use state legislation to create an agreement among states that would change how the Electoral College works. In short, states would agree to ignore the result within their state and instead give all of their electoral votes to the candidate winning the most votes nationwide. There is no majority requirement or provision for a runoff. The agreement takes effect when passed by enough states to control an electoral vote majority, and therefore to control the presidential election.

While Dr. Koza’s proposal has been stymied now for over a year, it was previously enacted in five states: Hawaii, Illinois, Maryland, New Jersey, and Washington. Within the last month, it has made some progress in Delaware, Massachusetts, and New York. It is now dead for the year in Delaware, but it remains possible that either or both of the other two states could enact it.

National Popular Vote cleverly takes advantage of the Constitution’s grant of authority to state legislatures to determine how to allocate their electoral votes. For over a century, Electoral College opponents focused on amending the Constitution. National Popular Vote is a clever strategy and, at least on its surface, elegantly simple.

Yet the benefits of the current Electoral College system have nothing to do with surface appeal. In fact, the debate over National Popular Vote exposes just how little most Americans (and many law professors and even politicians) understand the incentives created by the Electoral College that moderate and strengthen our political system.

The Electoral College forces presidential campaign strategists and national political parties to construct broad coalitions across much of the nation. The phenomena of “swing states” makes this clear: the candidates and their parties are currently so evenly matched that recent elections have worked their way down to a small number of states. Thankfully, and in part because of the workings of the Electoral College, neither the safe states nor the swing states represent anything like particular geographic regions or political interests. The states that make up each group (“safe” and “swing”) have been continually shifting as the political parties strive to achieve the constitutional majority defined by the Electoral College.

The greatest historical example of the importance of the Electoral College is the election of 1888. National Popular Vote claims that Grover Cleveland’s loss was a great injustice, yet it was a turning point–for the better–in American politics. Read more in our earlier post: What Grover Learned at (the) Electoral College.

The Delaware Senate spent portions of this week considering HB 198, which would commit the state to NPV’s anti-Electoral College scheme. The House already approved the legislation last year, so senate approval would send the bill to the Governor’s desk. The Senate has three legislative days left in which it could still approve the bill.

Save Our States director Trent England was in Dover earlier this week. He and Shaun Fink of the Caesar Rodney Institute visited with legislators and helped to educate them on the logistical and legal aspects of the bill. A few talk radio hosts in Delaware and a timely National Review Online blog post have all helped to get the word out. The grassroots response was overwhelming: Delaware citizens flooded state senate offices with phone calls. They want their senators to vote “NO” on NPV’s scheme, which would badly hurt a small state such as Delaware. Good news: Senators appear to be listening to their constituents (keep calling!). The Senate has considered, but then postponed, a vote on the measure twice.

An interesting tidbit: Saul Anuzis, former Chairman of the Michigan Republican Party, has taken an interest in the issue and went to Delaware to lobby senators. For someone who claims to be an “unabashed Reagan-conservative,” his position is pretty surprising. He is urging Republican Senators to vote for the NPV plan. He claims that the Electoral College hurts the Republican Party; he says that getting rid of it would benefit Republicans in upcoming elections.

There are three big problems with Anuzis’s analysis.

First, even assuming that Anuzis is correct about the immediate political benefits, he is absolutely wrong to campaign against the Electoral College based on purely partisan concerns. Constitutional provisions are meant to serve the entire country on a permanent basis. It is destructive to change them simply to serve one person or party at one moment in time. The Electoral College serves all of us by ensuring that presidential candidates must always take into account the needs of a wide variety of Americans. They can’t cater to one region, state, or special interest group. Small states such as Delaware have a particular interest in preserving the Electoral College, which prevents them from being tyrannized by the majority in large cities and states.

Second, no one can know which political party will benefit the most if the Electoral College is abolished. As this author has explained elsewhere, eliminating the Electoral College would probably mean at least two things: Elections will become easier to steal and the two-party system will be undermined. So it follows that two types of political parties would benefit the most: Those that don’t mind stealing elections and third parties. Unfortunately, extremist third parties and special interest groups are most likely to benefit from the eradication of the two-party system. Surely none of this is what Anuzis really wants.

Finally, even assuming that the two-party system remains relatively stable after the Electoral College is gone, Anuzis has jumped to some questionable conclusions. He seems to think that the Republican Party will benefit from NPV because it will make candidates more likely to campaign outside of the big cities. (One vote in Delaware has the same weight as a vote in Los Angeles, but the media market is less expensive in Delaware so candidates would be motivated to buy air time where it is cheaper.) But the Los Angeles media market is more expensive because advertisers have the opportunity to reach so many people with their message simultaneously. It’s the simple rules of supply and demand, and candidates will know this as well as anyone else. Since their goal is to amass large numbers of individual votes, they will spend their money where they can reach the most people at once: the big cities.

In a 1977 radio broadcast, Ronald Reagan described the security that the Electoral College affords to all states, but especially to small states: “The very basis for our freedom is that we are a Federation of Sovereign States. Our Constitution recognizes that certain rights belong to the state and cannot be infringed upon by the National government. This is the guaranty that small states or rural, sparsely populated areas will have a proportionate voice in national affairs. Those who want to do away with the electoral college really mean they want the President elected in a national referendum with no reference as to how each state votes. Thus a half dozen rural states could show a majority for one candidate and be outvoted by one big industrial state opting for his opponent.”

Anuzis, the “unabashed Reagan-conservative,” should pay more attention to Reagan’s wisdom on this matter. He should not be trying to sway legislators in Delaware (or anywhere else!) to support NPV’s anti-Electoral College legislation. The Electoral College is healthy for our country. States such as Delaware will act not only in its own interest, but also for the benefit of the country, if it does its part to preserve the system.

Tonight Save Our States is hosting a Citizens’ Briefing to explain the importance of the Electoral College and the threat of the National Popular Vote plan.

A lot of people don’t like the Electoral College. Even more people don’t understand it. There are plenty of arguments for the institution’s irreplaceable contribution to American liberty and prosperity—like how it protects representation and minority rights, preserves national stability, gives every voter a say in presidential elections, etc.

But you don’t have to be a fan of the Electoral College to recognize the National Popular Vote plan for what it is—bad public policy. Even if the United States did choose to ‘reform’ the way we elect our president, the NPV plan’s striking resemblance to Swiss cheese should be enough to deter legislators from going this route.

Right now NPV legislation is poised to pass in Massachusetts, New York, and Delaware.

Join us this evening from 7:00-7:30 p.m. EST for a briefing on the National Popular Vote and what citizens in NY, Mass, and DE can do about it.

What: Urgent Citizen Briefing: The Electoral College under attack in NY, MASS, & DE

When: 7:00-7:30 p.m. EST, TODAY

Where: Simply click here to enter the Dimdim virtual meeting.

Last week, the Massachusetts House of Representatives passed National Popular Vote (NPV) legislation, part of the attempt to unravel the Electoral College without amending the Constitution. Yesterday, the New York State Senate passed the same bill. In each state, the measure moves to the other legislative chamber for consideration.

So far this year NPV has failed to be enacted in any state. The legislation seeks to create an interstate compact–an agreement among the states–that would take effect if passed by states representing a majority of votes in the Electoral College (270 out of 538). It would direct states to ignore the will of their own voters and instead cast all of the states electoral votes for the presidential candidate who gets the most votes nationwide. This would leave the Electoral College process in place, but manipulate it to ‘rubber stamp’ the raw national vote winner.

NPV’s last success came over a year ago when Washington became the fifth state to enact NPV legislation. However, some constitutional scholars are concerned that NPV might argue that governor’s vetoes do not matter, because the Constitution gives state legislatures power over state electoral votes. Governors in California, Rhode Island, and Vermont have vetoed the bill. Including those states, if NPV passes in Massachusetts and New York it would have gained 166 electoral votes worth of states.

I have talked with several legislative staff in both New York and Massachusetts this year, and NPV”s success in those states is perhaps not surprising. In both states, legislative staff (who reflect their bosses) were disinterested, seemingly unwilling or perhaps unable to understand the scope and importance of the question: how should we elect the President of the United States. State politics is less thoughtful, more a party- and lobbyist-driven machine. The San Francisco-based National Popular Vote organization spends vast sums on lobbying. The most recent records from New York show that NPV spent $67,500 on paid lobbyists there during 2009.

Yesterday I posted the information for our “Protect Michigan Votes” briefing in Redford, MI.  After cross-posting on www.LibertyLive.org, one commenter asked why Save Our States—a group based in Olympia, WA—cares what happens to Michigan’s electoral votes? There are three reasons (in addition to my being a native Michigander, of course).

First, Michigan citizens and policymakers deserve the facts before they make their decision. NPV wants states to sidestep the Constitution and reconfigure a system that has its origins in the first Constitutional Convention. More than bills dealing with transportation, waste, or the state bird, this is a matter of historic magnitude.

Our goal is to offer reliable, educational resources that detail how and why the Electoral College works and what citizens could expect under a national popular vote for president. The short answers: the Electoral College works to the benefit of American stability, prosperity, representation, and freedom; NPV would likely produce instability, radical geographic imbalance, massive litigation, and decreased representation in presidential elections.

Whether it’s Maine, Wisconsin, Nevada, or Michigan, citizens deserve the facts.

NPV operates under the radar. This is unfair to the citizens. Their strategy usually involves targeting specific legislators and not raising public attention. Why? Take Wisconsin, for example. Once the public became aware that their legislators were considering passing legislation that could potentially force Wisconsin’s electors to ignore the way Wisconsin voters voted—well, they weren’t didn’t sit still for long. Citizens, bloggers, and private organizations were buzzing with opposition.

Washington is an example of NPV’s success in flying under the radar. Here they focused exclusively on legislators. Those legislators pointedly ignored the testimony of the concerned citizens who did find out and understand the implications of NPV. Shortly after the governor signed the NPV legislation, the Seattle Times, Washington’s biggest newspaper, came down on state policymakers for sliding this through “with little public notice.” It concluded, “There is time for other states to consider this proposal more deeply than we have — and for people here to make up that lack by signing a petition for referendum so that the question can be referred to the people. It is, after all, their business.” Save Our States agrees.

Ultimately, what happens in Michigan affects the whole country. Manipulating the Electoral College (to essentially eliminate its very function) is an issue that residents of each individual state will experience. If NPV’s lobbyists win over states amounting to 270 electoral votes (the minimum to win the presidency), it won’t matter if other states refrain.

Michigan deserves the facts, and all Americans may be affected by what they do with them.

On a somewhat related note, those in Michigan might be interested in the podcast of my interview on the Paul Edwards Show yesterday. The interview begins at 28 min.

As we’ve pointed out before, Michigan has made it onto the NPV radar. Legislators are being lobbied to ignore the will of Michigan voters and cast all 17 of Michigan’s electoral votes for the national popular vote winner—regardless of who wins in Michigan.

Next week, Save Our States is presenting a citizens’ briefing in Redford, Michigan. For any readers with connections in Michigan, please pass this info along. More details are available at: http://savemichigan.eventbrite.com.

Even in states where Democrats control the legislature and governor’s office, National Popular Vote often spends a great deal of money to win one or two Republican supporters. This is smart politics for two reasons. First, it’s hard for anyone to believe that changes to the “rules of the game” are fair if only one team supports them. Many Democrats are wary of the appearance of impropriety if they back NPV without at least a few Republicans signing on as well. Second, for NPV to succeed it must become law in states representing a majority of Electoral College votes (270). Even if it could sail through the states farthest to the political Left, doing so with only support from the far Left will make the effort more likely to hit a brick wall in the more moderate states that it must win to reach 270.

A part of this strategy came to light yesterday when Saul Anuzis, former Michigan Republican Party Chairman, endorsed National Popular Vote on his blog. Anuzis closely parrots NPV’s talking points, but does try to spin the Progressive project as “bipartisan” and good for Republicans.

NPV’s claim of bipartisan support must be getting more difficult to repeat with a straight face. In my own home state of Washington, NPV started out with a few Republican supporters in the legislature. However, by the time it came to final passage, the only thing bipartisan about the bill was opposition to it. No Republican voted for it, several Democrats voted against it. The same thing in the Maine House of Representatives, where the bill was defeated by an overwhelming Left-Right coalition. Again, by the time of the vote, every Republican and nearly half the Democratic Caucus voted against NPV. In Wisconsin, where the bill was introduced this year in both chambers, it started with three Republican cosponsors. Within days of hearing from their constituents (and this writer), all three took their names off the bill and became some of it’s most vocal critics.

Anuzis’s claim that NPV would benefit Republicans is dangerous political discourse. Changing the very structure of our national politics is not something to be done for partisan gain. And even where that might be the motive, it’s not likely to succeed. This change–replacing a geographically balanced, two-tiered system with a majority requirement (of electoral votes), with a direct system based on the raw national total with no majority requirement–would surely come with a barrage of unintended and unanticipated consequences. (Though it’s important to note that we can think about these consequences and attempt to unravel them as best we can, rather than adopting the NPV approach of simply averting our minds from reality.) Of course, odds makers would tell us that one indicator of the likely political effects of NPV is who is putting in the money to support it. In that case, all the money comes from the Left, even as some of it is spent buying off figures on the Right.

Last week AB 751’s express trip from introduction on February 15 to a hearing on February 17 caused a stir in the Wisconsin papers and blogosphere. While Save Our States Director Trent England was on the ground there, I jumped into the cyber world to see how Wisconsin voters were responding to the bill.

Almost immediately an alert went out from Wisconsin Family Action who had only just heard of the issue. Within less than 24 hours, they were circulating an online petition, blogs were firing right and left, and talk radio stations had picked up the tune.

Here are some of the articles from the Wisconsin NPV debate.

• “Proposed Legislation Can Circumvent Vote of Wisconsin Residents”
• “State Lawmakers Push Bill Eliminating Electoral College”
• “Call today about AB 751: Elimination of Electoral College Bill”
• “Will They Take Away Your Vote?”
• “Disenfranchising Wisconsin”
• “Editorial: State should go slow on National Popular Vote bill”
• “Why the Electoral College is necessary”
• “They want to CANCEL your VOTES in Wisconsin”

(Read the comments for some stimulating and well populated debate.)

This is the fastest and most vehement citizen response to the NPV bill we’ve seen. In my home state of Washington, newspapers didn’t even know about HB 5599 until after it had passed.

In most states, citizens, media, and particularly legislators have little to no understanding of the practical, political, and historical impact of the bill. Legislators sometimes approach it like a resolution about how elections should work. But this is a radical reversal of American principles and election practices that would underhandedly change our Constitution.

Last year in his testimony before the State Government and Tribal Affairs Committee, Save Our States Director Trent England urged legislators to consider the importance of the issue.

When James Madison was thinking about creating a new constitution he wrote to Thomas Jefferson and asked for some literature to study. He was already one of the most educated people in the young states. Jefferson sent him a trunk-load of books—a few of which were even in English—that Madison felt he had to read, he was compelled to read, before he would tinker with the fundamental structures of our government. I just hope that the members of this committee and the members of our legislature are dedicating the same time and the same study when they consider something this important.

Fortunately for Wisconsin, voters understand. They question the motives of a group that would sneak through a bill that would make such a dramatic change to our most important election.

Earlier this month, the National Popular Vote bill was overwhelmingly defeated in Maine. Save Our State ally Rep. Herb Adams closed his testimony by reminding legislators,

This is not just any compact between states—like lumber lengths, river basins, or mosquito control. This is about electing the leader of the free world and the commander in chief of the mightiest arsenal in the history of the earth.

Wisconsin voters are weighing in on this monumental debate, and as a result, three cosponsors have removed their names from the bill. What happens in Wisconsin—and West Virginia, Alaska, Vermont, Michigan, and every other state in the union—will affect every American voter.

A big thanks to host Jim Schneider and the crew at Crosstalk radio for today’s discussion of the Electoral College versus National Popular Vote. It was my pleasure to be on the program and to talk with so many listeners from around the country.

You can visit the Crosstalk website for a description of the issue and links to listen in several formats or even buy a CD.

One thing we touched on is whether the Electoral College is “anti-democratic.” It’s important to remember, the very idea of a constitution is, in a sense, anti-democratic. We hold the laws passed today up to the Constitution, we test them against it and not the other way around. Why? Because American government isn’t just about doing what 50% +1 want, it’s about protecting individual rights. As the history of the 20th Century shows (and every other century, for that matter), sometimes big groups of people–even majorities–are willing to violate those rights.

The First Amendment, to take just one example, is anti-democratic. It restrains majorities from violating the rights of others to freedom of conscience, speech, press, assembly, and petitioning government. Should we throw out the First Amendment because it sometimes restrains the will of the majority?

The same thing is true of the Electoral College, which usually just influences majorities to be more national and centrist than might otherwise be the case. In pursuit of unity, moderation, and stability–all of which work to protect individual rights–the Electoral College will sometimes (only twice for sure) elect a President who received less popular votes than another candidate.

If all you want is raw majority rule, which is really just another way of saying “might makes right,” then the Electoral College isn’t for you. If, on the other hand, you believe that government exists to protect individual rights–if you think the First Amendment is a good idea–then the Electoral College is just another very good, very American invention.

Note: post updated with links to Crosstalk show archive.

Last week was a lousy one for California-based National Popular Vote. After hiring six lobbyists and spending $80,000 lobbying in Madison, Wisconsin, they got Assembly Elections Committee Chairman Jeff Smith to schedule the bill for a hearing with less than two day’s public notice. And NPV’s lobbyists had convinced three Republicans to join the bill, giving them coveted “bipartisan” status.

But the NPV crew had bitten off more than they could chew. The lack of notice only helped rile up a public rightly skeptical of a process designed to represent California more than Wisconsin. Calls and emails poured into the Capitol. Several people, myself included, showed up to testify about the serious flaws and risks of NPV’s plan.

And all three Republican legislators jumped clear of the NPV bill (pdf). That’s right, NPV in Wisconsin can no longer make any pretense of bipartisanship. Several people in Madison tell me that Steven Foti, NPV’s “Republican” lobbyist there, has lost some credibility by signing on with NPV in the first place. I also heard that at least one Democrat on the Elections Committee opposes the bill.

Will Madison be the next Augusta? In Maine, NPV dumped in money and lobbyists. Save Our States visited once, for less than a day. When leadership–supporting NPV–suddenly pulled the bill to the floor, LD 56 went down almost 2-1. Not a single Republican voted for it and nearly half the Democrats voted against NPV as well.

All this is part of a trend we’ve seen around the country. In Rhode Island, Arkansas, even here in Washington where the bill was enacted last year, the more legislators learn about NPV the less they support it. In Massachusetts, Representative Will Brownsberger, a Democrat who originally cosponsored the NPV bill, explained his vote against it.

In the end, I concluded that, whatever its merits in principle, the proposal creates unacceptable downside risks for our country, risks that are not outweighed by its alleged benefits. …

I gave careful consideration to voting for the NPV just to keep the conversation alive about reform of the Electoral College, but all-in-all I really feel that — lacking a runoff mechanism — the NPV proposal is not sound enough to make a positive statement for change.

Nor, honestly, am I clear in my mind that the Electoral College — which embodies our national history as a union of states — is the root of political evil. Certainly the concept of sending electors to a college is anachronistic, but the formula for the college embodies a balance of power between large and small states.

I am less interested in changing the mechanics and more interested in developing and supporting national candidates who combine truthful vision with the skills to engage to a broad range of people across the nation.

Read more about the debate in Wisconsin:

1. More fallout on Newcomer’s decision to co-sponsor AB751,
2. Disenfranchising Wisconsin,
3. Why the Electoral College is necessary
4. WI Legislators Try Changing Election Laws.

On Friday, Alaska’s Senate Judiciary Committee heard the state’s National Popular Vote bill (SB 92). The measure actually already passed the State Affairs Committee with the support of Senators Linda Menard, Hollis French (who chairs the Judiciary Committee), and Albert Kookesh. (Watch the Judiciary hearing.)

Alaska, the largest state by landmass but with one of the smallest populations, is unlikely to be the key to a presidential contest under any conceivable system. But it stands to lose like every other state if NPV sweeps away the protections of the Electoral College. And at least under the current system, Alaska retains the possibility of becoming a swing state. It gets a boost in the Electoral College and, should it turn out to be evenly divided in a presidential race, campaigns will pay attention. Under NPV, it wouldn’t even have that.

NPV bemoans the existence of swing states and pretends that if voters were more mathematically equal, they would receive more equal treatment from presidential campaigns. There are two problems with that argument.

1. Swing states are actually beneficial. What makes a swing state? The answer is balance. While ‘safe states’ are places where most people already favor one candidate, swing states only swing because of their moderation. The current Electoral College system requires candidates to start with broad national support and then, as the campaign goes on, to focus in on the most evenly divided states. Far from being some nefarious plot, swing states pull American politics toward the center. You might say that the Electoral College, through swing states, recalibrates American politics toward the middle every four years.

One other point about swing states: divided government is accountable government. The Electoral College turns presidential elections into separate elections in each state. Where those elections will likely be the closest and most contested (in swing states) government is also more likely to be divided between both political parties. All of America benefits when our elections are properly scrutinized, and the current Electoral College system does this better than any system that just throws all the votes together for a single, national total.

2. NPV’s voter equality is superficial. According to NPV, it’s a moral failing of American politics when one voter sees more campaign commercials than another. Their slogan is “every voter equal,” yet NPV’s voter equality has nothing to do with the real world of politics. Candidates understand this. Even without an electoral college, political candidates “slice and dice” voters by geography and demographics to figure out who to “target” with campaign advertising and other activities. Campaigns will always allocate scarce resources unequally as they look for the most efficient way to win. The Electoral College simply forces campaigns to focus more on politically diverse areas.

The problem with NPV’s arguments (these and others) is that they simply skim the surface. There is no evidence that anyone involved with NPV has ever sat down and studied the history and theories of political systems (or even thought about such questions). They seem uninterested in history and real-world outcomes. Perhaps this is understandable, since the man who came up with the idea, John Koza, is a computer scientist best known for inventing the scratch-off lottery ticket and then convincing state governments to sell them to the public. While Koza’s state lotto monopolies have made him rich, the tale suggests either a lack of thoughtfulness or a dangerous (to other people) self absorption.  How much poorer are many poor Americans because of John Koza?

The most important question about any political system is will it tend to protect liberty and justice or not. The Electoral College helps to stabilize America’s political system in a way that makes liberty and justice possible.

As I walked through the Wisconsin State Capitol last week talking with legislators and legislative staff, I saw the effects of citizens in action. Throughout the day, radio stations were alerting listeners about the bill. Several legislative staff members told me that calls and emails were coming in strong–and strongly against NPV.

The experience illustrates two problems with NPV’s polling, which reliably shows support for direct election of the President.

First, the average American doesn’t spend a lot of time studying and pondering the Electoral College. What a person says when put on the spot by NPV’s telephone poll is almost irrelevant to what he or she might think after considering both sides of the issue. One pollster I know has told me flat out that a poll is meaningful only to the extent that those answering the questions know their answers before being questioned. When we come up with them on the spot, as many NPV poll respondents surely do, we reserve the right to change our minds.

Inside Wisconsin's Capitol

Second, even if a lot of Americans do support some kind of direct national election for President, that position is not a mass motivator (there may have been a window after 2000 when it was, but it isn’t now). NPV is not part of a mass movement; it’s a collection of lobbyists paid with lottery royalties. On the other hand, there is a group of Americans who understand deep down that this nation was set up as a federal constitutional republic. These folks understand this issue, know which side they’re on, and do not soon forget those who betray republican principles.