Initiative would place Electoral College on the chopping block



On Monday, the American Constitution Society held a panel with Pulitzer Prize-winning columnist and New Yorker editor Hendrik Hertzberg and visiting Professor Akhil Amar, of Yale Law School. The topic of discussion was the National Popular Vote Initiative, which would replace the current Electoral College with a direct popular vote for the President of the United States. Visiting Professor Michael Kang, of Emory University Law School, moderated the discussion.

Hertzberg started by describing the Initiative and its three components. First, state legislatures would pass identical bills committing their electors to cast their vote for whichever candidate wins the national popular vote.

Second, the states, in conjunction with Congress, would form an Interstate Compact which would bring the voting agreement into effect when 270 electoral votes, the number needed to elect a president, had been committed to the winner of the national popular vote. Finally, a mechanism to enforce these agreements against the states would be developed prior to the election. For Hertzberg, the primary goal is to reduce the number of “politically dead” zones, or areas in which candidates lack incentive to compete for votes under the Electoral College across the country.

Amar argued that the Electoral College was an anachronistic system set up by the Framers as a way to maintain the institution of slavery in 1789. He acknowledged that while there were contemporary arguments for maintaining the Electoral College, for maintaining the federalist structure as it exists now and for avoiding the uncertain consequences of such systemic change, there are many more substantial arguments in favor of a direct popular vote. For one, a direct popular vote would be closer to the slogan ideal of “one person, one vote”, and would be more in line with how the rest of our public officials, and in particular, our state executives, are elected. Furthermore, a direct national vote would incentivize all states to turn out the vote within their own borders in order to maximize political clout in the election, thereby increasing widespread national democratic participation.

Both Hertzberg and Amar agreed that the Initiative, as construed in this manner, is both constitutionally permissible and preferable to a formal amendment of the constitution. Since electors are permitted under the Constitution to cast votes for the candidate of their choice, the Initiative would do no more than to ensure that the electors’ discretion followed the will of the national electorate rather than the artificially defined electorates of the several states.

Since the Initiative would require only majorities in the state legislatures and in Congress for the passage of the Compact, such an outcome would be substantially easier to achieve than the supermajority needed to pass an amendment to the Constitution. Amar noted that the Initiative would act as a test case for a direct popular vote which could later be codified into an amendment if needed, not unlike the circumstances surrounding the passage of the Seventeenth Amendment, which provided for the direct election of senators.

The audience raised several questions about the efficacy and potential consequences of the proposed Initiative. When asked how the Initiative would redistribute money which has historically been spent campaigning in “swing states” such as Ohio and Florida, Hertzberg noted that the Initiative would substantially reduce the meaningfulness of individual states in our national elections. Campaigns would be more interested in focused spending targetting a set of similarly situated voters spread across the nation.

Amar noted that with the development the Internet as a medium of political organization, the Popular Vote Initiative would make a voter’s membership in a national demographic group more important than their region of residence.Targetting a single demographic group such as “soccer moms”, for example, has been made easier by widespread Internet access, and would become more effective with a direct popular vote in place of the Electoral College.

Both speakers reaffirmed the importance of further development of the Initiative as a viable alternative to the Electoral College, and pointed out that substantial work was still needed to be done in hammering out the details on determining a more standardized electoral process across the states before such an Initiative would become a reality. Indeed, although astronomically unlikely, the possibility of a nationwide recount could necessitate greater involvement by the Federal Government in election regulation as a way of harmonizing State voting regimes.