Constitutional Opinions

Al Gore’s College Days

George Mason likened a popular vote to referring “a trial of colors to a blind man.”

By From the November 2012 issue

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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.

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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).