Electoral bills redundant, subvert majority will

While talk about changing the way America elects its president waxes and wanes, in a policy sense in Louisiana this year a serious effort has been launched to do this courtesy of HB 388 by state Rep. Nickie Monica and SB 126 by state Sen. Joe McPherson. As it is, these efforts turn out to be a case of not needing new laws to effect desired change.

These bills would make the state a party to a compact among states that pledge their electoral votes would go to the winner of the national popular vote, which would go into effect whenever states with enough electoral votes ratified the measure, regardless of how the vote turned out in their respective states. This would create an end run around the U.S. Constitution, as Art. II Sec. 1, modified by the  12^th and 23^rd Amendments, sets up the procedure where, as known today, the Electoral College selects (except in cases of lack of majority vote) the president and vice president.

Proponents of the idea argue that the present system of people voting for other people who vote officially for these officers confuses the electorate, subverts the will the majority in the historically rare instances (two) where the national popular vote winner does not win a majority in the College, and leads to candidates concentrating campaigning on only a handful of states of assumed competitive states. Opponents who support the current system argue neglect of many states, especially rural ones, would increase even more as candidates would concentrate their efforts of urban areas and the largest states where the biggest vote hauls exist.

This method of making relevant national popular vote rather than Electoral College votes avoids having to amendment the Constitution, a difficult procedure. It also rests upon the specific wording of Art. II Sec. 1, which reads, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors …” (emphasis added). And the very phrase which facilitates these bills also explains why they are unnecessary and should not pass.

For supporters’ real argument lies not with the Constitution, but with the manner in which 48 of the states have chosen to apportion electors, how all of them list electors on their ballots, and how Congress has chosen to do both for the District of Columbia. Their discontent lies with the all-or-nothing method of picking electors by the electorates of the 48 states, the fact that all 50 states list their electors allied with party candidates for the two offices (some not listing electors’ names at all but state law dictating a vote for a president/vice president slate connotes a vote for their party’s electors), and that Congress for the selection of Washington, DC’s electors follows those 48 states in assignment and all states in listing. (The two states that don’t use the all-or-nothing method, each with four electoral votes, assign one per voting results in their two U.S. House districts and the other two to the winner of the statewide popular vote.)

If popular vote was desired to serve as the main determinant of distribution of electors, each state could pass a law saying electors would be distributed on the basis of the proportion of the vote their party received. Replicated across the nation, this would create a distribution of electors that proportionally, except under very skewed circumstances, would be almost identical to the national popular vote. Additionally, they could list individually all electors for all parties with a party designation but not grouped by party, encouraging voters to pick and choose among different electors for different parties, in essence giving greater freedom to split votes.

These changes would solve for the ill of ignoring many areas because their relative values become much greater, which the proposed legislation would not do. Instead of maybe a dozen competitive states, almost all states would be competitive for both major parties for at least one electoral vote. In addition, it would not require states to surrender the will of their own people, for a signatory to the pact would compel its electors to vote according to national will, even if the state’s voters gave a hefty majority to a slate that got less voters nationally that another slate.

Of course, states actually don’t even have to do anything because electors can vote whatever way they like. If future electors felt so strongly about having the national popular vote winner always winning out, they can agree among themselves and can agree to vote in a manner that produces this even if a majority of them previously pledged to vote a certain way made the minority vote recipients the winners.

Therefore, no reason exists for this legislation. States already can make legal changes to replicate the goals of this movement and without having to compromise the ability of their voters to express majority preference. Louisiana need not commit itself to this limiting of its options on this issue.