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Constitutional Opinions
Al Gore’s College Days
George Mason likened a popular vote to referring “a trial of colors to a blind man.”
THE FIRST THING I DID when word came over the wires that Vice President Emeritus Albert Gore is calling for an end to the Electoral College was send a cable to Hendrik Hertzberg. He is the former chief speechwriter for President Jimmy Carter and now writes the political comments for the New Yorker. He makes Barack Obama look like Calvin Coolidge, but he’s one of the most enjoyable liberals doing newspaper work and is a leading advocate of electing our presidents by popular vote.
I’m against it, myself, but it’s easy to see why Gore is so enthusiastic. If the popular vote had been the deciding factor, the Tennessean would have been the 43rd president. At least that’s Gore’s theory, since more people voted for him than voted for the real winner, George W. Bush. We don’t really know that Gore would have won, though. If the two political parties had known the election would be decided by popular vote instead of the way the Constitution mandates, maybe they’d have adjusted their campaign strategies accordingly.
Gore, in any event, is trying to make his case on a higher plane. The Nobel laureate, according to the Hill newspaper, argues that “many voters who live outside the dozen or so battleground states are cheated by the system that allocates delegates from the state level on a winner-take-all basis.” The Hill quotes Gore saying, “I’ve seen how these states are written off and ignored, and people are effectively disenfranchised in the presidential race.”
This has always struck me as an unconvincing argument, even though I reside in New York. If either one of the national candidates spends a nickel here, it’s a nickel wasted. The state is going to lean hard for Barack Obama for reasons that are best left to political psychiatrists and are, in any event, beside the point. On what basis does the fact that voters in the Empire State have made up their minds mean its people have been disenfranchised? If they voted for, say, John Kerry and John Edwards (as they did in 2004) and then their delegates to the Electoral College turned around and cast the state’s votes for, say, George W. Bush and Richard Cheney, now, that would have been a disenfranchisement.
Yet that turns out to be the very reform Hertzberg favors. He plumps for the leading scheme to foil the Electoral College. It’s called the National Popular Vote Interstate Compact. NPV is a kind of end run around the constitutional amendment process, and if Al Gore is a harbinger, we’re going to be hearing more about it with every passing year. The idea is that states would sign a compact pledging to deliver their votes in the Electoral College not to whoever wins in the state but to whoever wins the popular vote nationwide. I call it the Hertzberg Plan, though he’s an enthusiast rather than its author.* Under the plan, New York would have given its electoral vote in 2004 to Messrs. Bush and Cheney, because they won the popular vote nationwide, even though Messrs. Kerry and Edwards carried the state by a margin of 1.4 million votes. Mr. Hertzberg has said that he isn’t so sure Bush and Cheney would have won nationally in 2004 had NPV been in effect.
In any event, under its own terms, the National Popular Vote Interstate Compact would go into effect only after being signed by enough states to account for 270 votes within the Electoral College—that is, by enough states to decide an election. So far the compact has been passed by legislatures in eight states—Washington, California, Hawaii, Illinois, New Jersey, Vermont, Maryland, and Massachusetts—all of which voted for Obama in 2008. The District of Columbia has also approved the compact, bringing the total electoral vote count of NPV states to 132. According to NPV, more are on the way: Two states have ratified the measure in both chambers of their legislatures but have not yet enacted the compact into law. Ten more states, New York among them, have ratified the scheme in one chamber of their legislatures. In 10 states, the measure has passed at least one committee. So this is not something we constitutional troglodytes want to under-estimate.
THE TERM “ELECTORAL COLLEGE” itself wasn’t written into our law until 1845. Thus the “college” wasn’t created by, or even mentioned in, the Constitution. What the parchment does provide is the same thing without the name—that the president and vice president shall be chosen by electors appointed by the states; and that no senator or congressman may serve as an elector, nor may any person holding an “Office of Trust or Profit” under the United States. The Founders were wary of electors being chosen by the legislature, according to historian Max Farrand. Gouverneur Morris likened the idea that Congress should choose the president to a conclave of cardinals electing a pope.
Neither, though, did the Founders trust a direct vote by the people, and they expressed themselves on this head in terms that sound squeamish, or worse, today. Connecticut’s Roger Sherman worried that voters would favor their own states, giving advantage to larger states. South Carolina’s Charles Pinckney, Farrand notes, feared a popular vote would be “led by a few active & designing men.” George Mason likened a popular vote to referring “a trial of colors to a blind man.”
Madison favored direct popular election but sensed fear among the slave-owning states that popular election would put them at a disadvantage because “the right of suffrage,” as Madison put it in his notes, “was more diffusive in the Northern than the Southern states.” The compromise was to have the people choose electors and the electors choose the president. The pleadings of the defenders of slavery deserve to be rejected, but the republicanism of the electoral system—the slight cushioning of the popular vote—has its own logic. It’s no small thing that the system of indirect election on which the Founders settled has handed up such giants as Washington, Lincoln, and Reagan.
The other day Hertzberg sent me back a cable arguing not only that the National Popular Vote Interstate Compact is easier than a constitutional amendment, but also that “if we don’t like popular vote after trying it once or twice, we won’t be stuck with it.” There’s one hitch, which is that the Constitution declares flatly—in Article I, Section 10—that no state shall enter into “any Agreement or Compact with another State,” at least not without the consent of Congress. Al Gore and supporters of National Popular Vote seem content to cross that bridge when they come to it.
About the Author
Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen’s Constitution: An Annotated Guide (Basic Books).
Letter to the Editor View all comments (23) | Leave a comment
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TLP| 11.12.12 @ 7:09AM
What a buncha Bullsh*t from Piece a Sh*t who has socked away Hundreds of Million$ into His Bank Accounts, from all of the Suckers out there.
And, how did he Fool these Suckers?
HE BETRAYED THEM!
HE PLAYED ON THEIR FEARS!
Please allow me to put an end to this Popular Vote Bullsh*t, right now.
We are Not a Democracy. We are a Representative Republic. (At least we used to be)
Our System of Electing a President has been set down for us by the Greatest Assemblage of Great Minds, ever seated in One room, since the days of Ancient Athens. It is not something to be "FIXED" by the Votes of Most Dishonest, Most Corrupt, Worst People on the Planet.
I will gladly defer to the Wisdom of James Madison and Thomas Jefferson, over the Filthy lies and Deceits of the likes of Chucky Shylock Schumer, and that Old Black Aunt Esther looking B*tch of a Crook, out in Oakland - Maxine Waters.
All of this because the Inbred looking Idiot Son of a Segregationist Father, lost the Election back in 2004?
For the Record?
If the Piece a Sh*t had WON HIS OWN STATE, we wouldn't even be talking about this, now, would we?
He lost the Election, because he LOST HIS OWN STATE.
The people who KNEW HIM BEST, voted for the other guy.
End of Story.
SUBVET| 11.12.12 @ 11:20AM
Tim don't forget what the bit*h of a crook said...
Back in 2008, Waters was lecturing oil company executives at a congressional hearing when she plainly stated her true intentions: “Guess what this liberal would be all about? This liberal would be about socializing … uh, umm. … Would be about, basically, taking over, and the government running all of your companies.”
I say we are headed there.
TLP| 11.12.12 @ 2:56PM
Headed there?
Rhoetus| 11.12.12 @ 10:33PM
We need to repeal the 16th and 17th amendments not end the Electoral College.
Joellen| 11.12.12 @ 8:27AM
To simplify it more, if Al Gore, Hillary Clinton, and the libs are for it - I'AM AGAINST IT!
Just think if Algore would have been in office on September 11, 2011? I remember EVERYONE, even those who voted for this insane man, were grateful that Bush was the President. That says volumes doesn't it.
PolishKnight| 11.12.12 @ 9:37AM
What's funny is that this same smug, elitist liberal arguing against "disenfranchisement" because of the electoral college doesn't realize that the whole system of special interest politics endorsed by the Democrat party is all about disenfranchising the very electorate they claimed to care about 100 years ago: The hammer and sickle workers: Middle and working class families who produce stuff. The left now represents racist and sexist entitlement groups, public unions, and Kapitalist Krony Kontributors. Normal people are forgotten and swept under the rug and even treated with disdain and who can blame them? After all, these same SUCKERS in Ohio and Pennsylvania voted for Obama!
The Constitution to the left is similar to how Ted Kennedy treated the Bible and Catholicism: It's all cafeteria choices, folks! When they're putting a Bible in urine and demanding the taxpayers pay for it, the Constitution backs it up. When a conservative argues on a publically funded college campus that racist preferences are wrong, it's "hate speech" and banned. Get it? It's a "living document" but also simultaneously written in stone to say what they say it says. We're at war with Eurasia. We've always been at war with Eurasia.
Stick| 11.12.12 @ 11:42AM
The reason the left wishes to end the EC is to permit the re-colonization of states by a handful of deep blue cities. It pisses them off that they can't directly tax the rubes to pay for the swells. We all know the swells are really smart, except for balancing checkbooks and such.
Bill8472| 11.12.12 @ 11:58AM
The National Popular Vote plan, whatever its merits might be, seems to be yet another move aimed at diluting the sovereignty of the various states, and therefore of questionable Constitutionality.
Just another attempt at homogenizing us all into one nation instead of a union of states.
orange-ghoti| 11.12.12 @ 3:55PM
Seth, the only legitimate arguments you make apply not to the idea of direct election of the President, but in opposition to the NPV. While these points are valid, particularly the constitutional conflict, you fail to make a compelling case for keeping the electoral college.
The Presidents you mention - Washington, Lincoln, and Reagan - were all elected by both the popular vote and the electoral vote. Your argument for a "cushioning" of the popular vote isn't bolstered by anything you argue and stands in opposition to the 17th Amendment allowing for the direct election of U.S. Senators. Should we repeal that as well?
If you are a minority voter in a polarized state, your vote for the president is meaningless and rendered so by the electoral college, that is the "disenfranchisement" referred to. The fact that multiple presidents have been elected without the popular vote only shows the flaws in an antiquated system.
You argue that election strategies would change in the absence of the electoral college, and rightfully so. These altered strategies could have lead to a majority vote for Bush 43 rather than an election being decided by the Supreme Court.
Our Representative Democracy, our Democratic Republic, allows us to choose those who represent us and the President is one of those elected officials. Shouldn't we all be able to vote directly for our President and have our votes mean something?
orange-ghoti| 11.12.12 @ 5:09PM
I'd be very interested to see what you (and the many others on this site) would be saying if Obama had won the electoral college and lost the popular vote. A slightly different tune, I would imagine.
JD| 11.12.12 @ 5:57PM
Typical Leftist projection. Just because you are hypocrites doesn't mean we are.
orange-ghoti| 11.12.12 @ 6:24PM
Nice sentiment; too bad it isn't true. Republicans frequently bemoan political tactics used by Democrats that they so recently used themselves. I don't say this with a partisan slant: both parties are equally guilty of obstructionism, gaming the system, and generally doing whatever necessary to grab and keep power. A plague on both your houses.
JD| 11.12.12 @ 6:06PM
The Electoral College introduces two dynamics into national races.
First, the minimum of three electoral votes per state gives undue power to voters in the smallest states. Wyoming voters get one electoral vote per 150,000 residents, while in other states, the numbers are closer to 1,000,000 voters per electoral votes.
On the other hand, this advantage pales in comparison to the disadvantage of being a minority voter in a large state. Think about it. If a state has 20,000,000 voters, and 10,000,001 of them vote for a candidate, that candidate gets ALL the electoral votes and his opponent gets NONE. However, if that state were split into four smaller states of equal size, the minority candidate would almost certainly get at least one of the four states' electoral votes, and quite probably two of the four. Grouping the 20,000,000 voters into one state disenfranchised the 9,999,999 minority voters. Grouping them into multiple smaller states would have disenfranchised fewer people.
Presently, the first dynamic favors Republicans, who carry small states, but the second favors Democrats, who carry large states. But the trend seems to be that the influence of the second dynamic is growing larger than the influence of the first, which is why the Electoral College ratio favors Democrats far more than the popular vote ratio.
JD| 11.12.12 @ 6:08PM
While I appreciate the concept of states rights and feel increasingly that more power to states and less to the feds is the solution to the problem of congressional gridlock and general widespread dissatisfaction with Washington, I'm not sure preserving the Electoral College is a worthwhile objective. The Electoral College doesn't actually grant rights to states; it just skews influence on federal powers.
Brian Richard Allen | 11.12.12 @ 6:20PM
We should all agree to elect the president by popular vote immediately after the senate agrees its members should also be so elected.
Goodness knows Delaware and Rhode Island haven't, for decades, deserved senators! And that California could do with a few more.
CJW| 11.12.12 @ 6:55PM
The better reform is for the winner in each congressional district to win the electoral vote for that district. This would paralled the elections for the House members.New Hampshire and Nebraska, I believe, do this.
This would presently favor the Reps because we have controlled the House since 1994, but the Dems controlled it from 1954 to 1994.
Such a system would be more representative because each district would have a voice in the election.
Now, the conservative districts are dwarfed by the vote totals in the liberal districts. For example, in Pa, the western districts went two for the Reps and one for the Dems, thus Romney would have picked up two electoral votes in Western Pa. This would apply throught the country.
Now, New York and Calif always go to the Dems, and Texas to the Reps, but each candidate would pick up electoral votes if we used the winner of the congressional districts to award the electoral votes.
The other two votes for each state would go with the senators of each state.
orange-ghoti| 11.12.12 @ 7:14PM
Until we have redistricting reform, this is folly. Gerrymandering currently helps whichever party is in power at the time of the census consolidate and maintain that power at the cost of true representative democracy.
Is direct election of the President too much to ask? We're not individually voting on each of his or her decisions, we're still electing a REPRESENTATIVE to make those decisions on our behalf. We do this for almost every other elected office in this country, why not commander in chief?
Albert Constantine Jr.| 11.12.12 @ 7:31PM
I seem to recall reading Robert Ripley in his Believe It or Not series many decades ago, in which ghoti was presented as an alternate spelling for FISH.
orange-ghoti| 11.12.12 @ 7:38PM
Give this man a cookie. ;)
Rhoetus| 11.12.12 @ 10:32PM
Rules for Conservatives @
http://www.saveamericanow.us.com
spike59| 11.13.12 @ 6:37AM
keeping ManBearPig out of the WH was the greatest service the Electoral College has ever done to our nation
Marc Jeric| 11.15.12 @ 2:52PM
Al Gore, our bloviating gasbag par execellence and the propaganda voice of the globaloney warming hoax...no more - I am tired of declaring the obvious!
atheistrepublican| 11.18.12 @ 7:43AM
Mr. Lipsky has it wrong about the compacts. Since this feature would be enacted without the necessary cooperation of any other individual state, there is no compact. States could still come and go as they please, hence no approval from Congress would be required.