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April 30, 2013 12:36 PM Reform Wars: The Two Different Projects to Fix the Electoral College

By James P. Rooney

With the race for president a fading memory, Americans might think they wouldn’t have to hear about swing states again until the next election. But the reason we had to hear so much about such states during the presidential campaign - their outsized influence - has generated calls for reform. Two ideas are competing. One would benefit Republicans by splitting the electoral vote in swing states that voted Democratic in the last election. The other, a non-partisan effort, would simply tie electoral votes to the national popular vote. The first is a flash in the pan; the second is a long shot, but is the most interesting and promising reform plan to the way we select presidents that the country has seen in the last 150 years.

The GOP Plan

Because the losing party in an election wants to change the rules to avoid the same result in the future, it is no surprise that Republicans are considering changes in the winner-take-all system of allocating presidential electors in states President Barack Obama won where Republicans dominate state government. In Michigan and Pennsylvania, legislators have introduced bills to divide state electors proportionately so that a candidate receiving 60 percent of the vote would get 60 percent of the electors. Virginia, Ohio and Wisconsin are considering bills that would grant electoral votes by congressional district.

The proposals could change elections dramatically. In Virginia, for example, under current winner-take-all rules, President Obama won all of the state’s 13 electoral votes. Under a strictly proportional approach, he would have won only seven electors, and under a proposal by Republican State Senator Charles “Bill” Carrico to choose one elector in each Congressional district and give the remaining two electors to the candidate who won the most districts, Mitt Romney would have won the state.

But these partisan efforts are doomed to fail because they eliminate the power swing states now enjoy. Each of the states considering district or proportional voting is a swing state. Adopting a district or proportional vote might guarantee one party a few more electoral votes. But the cost would be a precipitous decline in state influence; no longer would a presidential candidate have a shot at winning all the state’s electors. Any Republican tempted to adopt either scheme would be simultaneously thumbing his nose at local voters and conceding that his party could not win the state.

The Popular Vote Plan

A better proposal comes from outside either party structure. In 2006, John Koza, a computer scientist who had developed an Electoral College game in graduate school, formed an organization called National Popular Vote. Under Koza’s plan, states would agree among themselves to cast all their electoral votes to the country’s popular vote winner. The plan will be implemented once enough states join to reach 270 electoral votes - the total needed for Electoral College victory.

So far, eight states - Maryland, New Jersey, Illinois, Hawaii, Washington, Massachusetts, Vermont, and California - and the District of Columbia have joined. Their 132 combined electoral votes put the plan nearly halfway to the total needed for implementation. Notably, none of them are among the nine swing states in the last election. It is the sidelining of non-swing states that convinced legislators to vote for a change. According to Pam Wilmot, who led the lobbying effort in Massachusetts for the National Popular Vote, the state representatives with whom she spoke were convinced because they knew the state had become politically irrelevant in presidential elections.

All the states that have joined so far have voted Democratic in presidential elections for the last 20 years. The popular vote change will not happen unless some Republican-leaning states sign up. Notable Republicans do support the proposal, including former Senators Fred Thompson and Jake Garn, former Congressman Tom Tancredo, and former Illinois Governor Jim Edgar. Some 250 Republican legislators from across the country have also signed on as sponsors of National Popular Vote bills in their legislatures. Polls show that two-thirds of Republicans (and over 70 percent of the entire population) support it. But the 2012 Republican Party platform came out against the National Popular Vote because it “would be a mortal threat to our federal system and a guarantee of corruption as every ballot box in every state would become a chance to steal the presidency.”

That’s one take, but the Constitution allows states to pick electors as they chose and there’s no reason to think fraud would be any more likely under a national popular vote than under the present system. But reasoned argument alone will not counter the suspicion that the early success of the national popular vote movement in Democratic-leaning states shows that Democrats will obtain an advantage under this proposal. To begin to make any headway with Republicans, proponents of a national popular probably need a victory in a Republican-dominated legislative body.

They achieved a partial win in 2011 when the Republican-led New York State Senate passed a National Popular Vote bill by 47 to 13. But what they need is a Republican governor to sign into law a popular vote bill passed by a Republican legislature. Saul Anuzis, a member of the Republican National Committee and the former head of the Michigan Republican party, believes that Republican legislators will be convinced not by national party positions, but by a feeling that a national popular vote would make a positive difference on their states. Anuzis supports a national popular vote because of the 2008 election, in which John McCain pulled out of Michigan when it became clear he could not win there, to the detriment, Anuzis believes, of other Republican candidates in that state.

Next Steps

Have recent elections made it more likely that Republicans in non-swing states will see the need for a change? Maybe; immediately after the election, Arizona Governor Jan Brewer, annoyed that presidential candidates ignored her state in the election, declared her support for picking the president by popular vote.

But there is little likelihood that any swing states will drop the winner-take-all system and give up their influential positions in the near future. The action will be in the 41 non-swing states and in efforts to convince legislators that picking a president by the national popular vote will accord with the public’s desires, not hurt their party, and might increase their state’s influence along the way. The most likely movement is in the twelve states in which at least one house of the legislature has passed a national popular vote bill in recent years. The latest is the Oregon House of Representatives, which passed a bill on April 18, 2013. Who’s next?

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James P. Rooney is an administrative law judge in Boston.

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