If following the Constitution is too inconvenient, why not just sneak around it?
That seems to be the battle plan of the California state Assembly, which passed a bill last week that would change the way the state’s electoral votes are apportioned — and could fundamentally change the way Americans choose their president.
Ostensibly fed up with the lack of attention given to California by presidential candidates, the state assembly passed Assembly Bill 2825, which would give California’s electoral votes to the winner of the national popular vote. A key clause in the legislation stipulates that the bill will only go into effect if identical laws are approved in enough states to form a coalition representing 270 electoral votes, a majority in the Electoral College. Assuming such a coalition can be formed, California (and its 24 million citizens of voting age) would be at the forefront of campaigning, instead of being ignored as a sure-fire “blue” state.
“Presidential candidates would have to come to California because of our population — and they would have to take a position on issues that we care about,” Assemblyman Tom Umberg (D-Santa Ana) said in support of the bill.
It seems like a noble effort — but there’s a whole lot more to this legislation than meets the eye. To be sure, the bill would force would-be commanders in chief to look beyond the “battleground” swing states during election season. But the bill would also effectively establish a national popular vote for the presidency and destroy the purpose of the Electoral College — in short, it would subvert the Constitution without actually amending it.
That’s not to say that the Electoral College couldn’t stand a little scrutiny. The college was originally an answer to the poor interstate communication of the early American republic. Because of the slow and rather limited communication between states, the voting public usually knew very little about candidates from regions other than their own. Constitutional delegates reasoned that if the president were to be directly elected by national popular vote, voters would naturally cast their votes for a familiar “favorite son” from their own state or region. Candidates from more populous areas would have an obvious advantage in such a system.
In “The Federalist Papers No. 68,” Alexander Hamilton promoted the idea of an electoral college composed of a small group of citizens “most capable of analyzing the qualities adapted to the station,” chosen for the single task of electing the president. He wrote: “A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations [required to select the president].” The convention members stuck with this idea, reasoning that the college would help mitigate the lack of information available to the average American.
Almost 220 years later, this original justification for the Electoral College seems a little weak in the knees.
With the near-instantaneous communication offered by television, radio and the Internet, modern voters have access to information about candidates from all over the nation. The assumption that an intermediate body of electors would choose a better candidate than the public at large is faulty given the availability of information.
Furthermore, the buffer between voter and candidate is already almost nonexistent. While John Q. Voter is technically choosing electors at the ballot box, in every practical sense he is directly voting for a presidential candidate. On 2004 ballots, for instance, voters saw the names George W. Bush and John F. Kerry — with “electors for” in fine print to the side. Since electors rarely second-guess the mandate of voters, there is very little difference between a vote for Ralph Nader and one for an elector pledged to vote for Ralph Nader.
But these valid arguments against the Electoral College do not make the bill a good idea.
For one, the founding fathers took special care to see that presidential candidates would appeal to the widest sampling of voters possible. They disliked the thought that a politician might gain the presidency by gaining popularity in a single heavily populated region.
Because of this, the writers of the Constitution distributed electors according to the total number of representatives from each state, with the knowledge that smaller states would be overrepresented in the Electoral College, just as they are overrepresented in the Senate and to some degree in the House.
One effect of this overrepresentation is that in a close election, electoral votes tend toward the candidate with support from the greatest number of states. This occurred in the 2000 election, in which Al Gore lost a close election despite winning the popular vote. In this case, the machinery of the Electoral College did exactly what it was designed to do: With a very small difference in the popular vote, it gave the presidency to the candidate with support from voters in the largest number of states.
Some have rightfully noted that another result of overrepresentation is the effective disenfranchisement of voters in large states. Indeed, in the 2004 election, a voter in Wyoming had the equivalent of over three times as much “representation” as a voter in Florida, California, Texas or New York.
But this overrepresentation is at the heart of the American political system. If the Electoral College is unfair, then so must be the Senate, and, indeed, even the House.
The Electoral College does have outdated features. And perhaps the American public would be better served by a national popular vote for the presidency. But this is a question of whether to amend the Constitution, to be voted on by all 50 states. At its core, the bill is an attempt to use the power of large states to circumvent an amendment vote — and if it isn’t unconstitutional, it’s certainly unethical.
Though AB 2825 has the best interests of Californians at heart, it subverts the principles of federalism and respect for minority opinion that are the cornerstones of American government.
