The Surprise Awaiting State Legislators

Tara Ross

AUSTIN, Texas – Newly elected legislators may be in for a surprise when state legislative sessions begin this month. They doubtless anticipate a focus on the economy, health care, budget deficits, and taxes—all issues that drove voters to the polls in droves last November.But state officials will also be asked to address another problem that few were thinking about: Unexpected as it may be, the stability of the Electoral College was directly impacted by November’s elections. In some ways, the institution was helped. But it also took a few blows.

In recent years, a California group has been waging a behind-the-scenes effort against the Electoral College. This National Popular Vote group is asking state legislatures to change the way that they allocate presidential electors. Instead of awarding a state’s electors to the winner of the state popular vote, NPV wants legislatures to award these electors to the winner of the national popular vote, and it asks states to join an interstate compact to that effect.

The compact becomes operable when states holding a majority of electors (270) have signed it. Because a majority of electors can always dictate the outcome of a presidential election, the compact will ensure that the winner of the national popular vote always obtains the presidency. The Electoral College will have been essentially abolished, without the bother of a constitutional amendment.

To date, six states plus the District of Columbia have joined the effort. These jurisdictions currently hold 74 electoral votes among them. Unfortunately, the mid-term elections on November 2 made it almost certain that at least 55 more electoral votes from California will be committed to NPV in the near future.

The California legislature has long tried to join NPV’s interstate compact. It has twice voted to approve the proposal. Both times—in 2006 and 2008—Governor Schwarzenegger vetoed the measure. With Scharzenegger out of office, the third time may be the charm for NPV. It can surely push the legislation through California’s legislature again, and odds are that, this time, the newly elected Jerry Brown will sign the bill. Adding California’s 55 electoral votes to the 74 already participating brings the total number of committed votes to 129—nearly halfway to NPV’s goal of 270 electoral votes.

There are many silver linings for Electoral College supporters, however. NPV probably lost ground in many other states because of the large Republican gains made in the state houses and senates: States such as Maine, Michigan, North Carolina, Pennsylvania, and Wisconsin have been targeted by NPV in the past. But the GOP regained control of one or both houses of each of these legislatures earlier this month. Similarly, Republicans regained control of the House in Colorado, and they made gains in Nevada. Both states have come close to approving NPV in the past. Unfortunately, the impact of the elections in a few other states is a bit more uncertain: Democrats retain significant majorities in Connecticut and made gains in Delaware. The legislation was approved by one chamber in each of these latter two states during the 2009-10 legislative sessions.

This analysis admittedly makes it sound as if support for the Electoral College is (or should be) a partisan matter. It most emphatically should not be. But this author is realistic enough to know that many politicians—however erroneously—view it as such. Thus, Republican gains should work to the benefit of the Electoral College, while Democratic gains will continue to work to its detriment. There are, of course, exceptions to this stereotype, as some Democrats support the Electoral College and some Republicans do not.

This author continues to hope that politicians on both sides of the political aisle will cease to view the Electoral College through the lens of the 2000 election. The institution should be evaluated on its own merits. It has long served our country and will continue to do so if we let it. As this author has argued elsewhere, the system ensures that presidential candidates must build broad coalitions of support (rather than relying on a handful of states, regions or special interest groups). It promotes moderation and compromise in our political system, and it discourages fraud and promotes stable election outcomes.

Newly elected state legislators have many important economic and other issues on their plates next spring, and they may be surprised to discover that the Electoral College is also on their legislative calendars. They would do well to spend time learning about the institution’s successful history before too casually voting against it.

Tara Ross is the author of Enlightened Democracy: The Case for the Electoral College. Ross is former Editor-in-Chief of the Texas Review of Law & Politics and a former associate of Fulbright & Jaworski, L.L.P.

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