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.
