I'm pleased to say that my Representative in Colorado's General Assembly, Claire Levy, has responded to my note asking her to oppose HB1299, the move to give Colorado's electoral votes to the winner of the national popular vote. Following is that response, as well as my take on why she's incorrect. The Representatives official e-mail address is at the end of her note, if you feel like sending your thoughts on the issue.
It has taken me awhile to write down the arguments I made on the House floor and in committee. If it isn’t stale, I would appreciate you posting the following response from me on your blog.
Much opposition to the National Popular Vote movement seems to assume that an interstate compact to award Electoral College votes to the winner of the popular vote somehow abrogates the original intent of the framers of the constitution. In fact, that is not the case.
The winner-take-all method of awarding Electoral College votes is neither required by the U.S. Constitution, nor was it the assumed method of allocating votes by the delegates to the constitutional convention.
Remember that when the constitution was ratified, there was no right to vote for senators or the president. (There is still no constitutional right to cast a presidential vote.) Only male, white, landowners were allowed to vote in any election. The framers of the constitution generally anticipated that the members of the Electoral College would convene and actually deliberate over the selection of the president.
The overwhelming argument in favor of the National Popular Vote in my mind stems from the fact that people now do have the right to direct election of their senator and they do vote for President of the United States.
Along with that vote is the expectation that the person who receives the most votes will become the president. Yet, by adhering to the winner-take-all method of allocating Electoral College votes, the will of the majority could be thwarted simply by the math of the Electoral College system.
The other persuasive argument for me is that the winner-take-all system also means that the minority vote in any given state, whether it is Democratic or Republican, does not count at all. If a Republican knows the Democratic candidate will win that state’s Electoral College votes, it doesn’t matter whether the candidate wins by one percentage point or ten, so there is little reason to vote when the result is not in doubt. Were the popular vote to determine who became president, all voters would have an equal stake in the outcome of the election because each vote would be aggregated with all other votes nation wide. The Republican vote in California currently doesn’t count at the national level. Were the National Popular Vote to be implemented, that very large number of votes would be added to Republican votes nationwide and would be a potent force.
Finally, the current system has resulted in complete preoccupation of the media and the candidates on what have become battleground states. The candidates and the media focus on a relatively few, possibly unrepresentative, voters in a few states and largely ignore the rest of the country. Rather than reach out to the country at large, the candidates tailor their messages to the voters in those battleground
states, giving them inordinate influence over the focus of the campaign and the message of the candidates. This is gamesmanship of the highest order and has distorted the process. The framers of the constitution certainly never anticipated this sort of media circus and it belittles the electoral process.
Some argue that the most populous states will dictate the outcome of presidential elections if we use a national popular vote. Currently, the eleven most populous states, which comprise 56% of the nation’s population, are closely divided between the major parties (Democratic and Republican). While New York and California typically vote Democratic, Texas and Florida typically vote Republican, and the other seven states are often a toss-up. For the most populous states to dictate the outcome, one party would have to produce a near unanimous vote in each of those states. Under the current system, on the other hand, a candidate could win an election with a mere 51% majority in those eleven states alone, and with just 26% of the nation’s popular vote. Clearly, small states (including Colorado) are at a disadvantage—one could even say that our votes don’t matter—with our current, winner-take-all system.
Another frequent argument is that the candidates will over look smaller states in search of voter-rich media markets in large states. The cost per vote for media in the larger markets is far higher than in smaller markets. But more importantly, the candidates will go to those areas with the largest number of undecided or unaffiliated voters because their appearances will have the greatest marginal benefit. That could be small states or large states. Most assuredly, a state such as Colorado with a large number of unaffiliated voters that has not become reliably red or blue will continue to see a great deal of attention.
Fraud is less likely to influence the outcome of elections using a national popular vote. Only a small margin is needed currently to change the allocation one state’s entire electoral vote and change the result of the election. With a national popular vote, the ability to influence the outcome of an election by perpetrating fraud in one state is significantly diminished because no single state’s vote will determine the outcome.
States can (and do) change the method that they use to allocate their Electoral College votes. Massachusetts, for example, has done so ten times. According to the Supreme Court in Bush v. Gore, states have the plenary power to choose how their electors’ votes are awarded. Our Founding Fathers did not enshrine the winner-take-all system in the constitution, and so we are not abrogating tradition by moving towards a national popular vote.
The last point to be aware of is that the Interstate Compact allows any state to withdraw at any time except 180 days before the end of the sitting president's term of office. If experience teaches that it was not a good idea, any state can withdraw. If the withdrawal of any state or group of states reduces the Electoral College vote below 270, the Compact is no longer in effect.
I think we should give it a try. The opposing arguments focus on how the current system can be gamed to the advantage or one party or one voting block. It prioritizes an unfounded notion of federalism over achieving the result that best reflects the will of the majority.
House District 13
And now my rather lengthy response
Dear Representative Levy,
Thanks again for taking the time to respond regarding HB1299.
Here are my thoughts regarding the points you’ve made, going more-or-less one paragraph at a time through your note. I would ask my readers to make very sure to read Representative Levy’s last sentence to put her position in proper context. (More on that at the end of my response.)
The fact that the Founders didn’t necessarily specify how Electoral College votes in a given state should be allocated does not imply that they would have believed any method of allocation would be acceptable. Indeed, the purpose of our entire system of government is to avoid pure democracy.
"We are now forming a Republican form of government. Real Liberty is not found in the extremes of democracy, but in moderate governments. If we incline too much to democracy, we shall soon shoot into a monarchy, or some other form of dictatorship."
and, from Federalist 10
: “…democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”
The issue of “white, male landowners” as somehow relevant to the current discussion is simply a liberal red herring, trying to make the Founders look out of touch with modern reality. I’m sure you’re one of those people with the erroneous view that the Constitution is a “living document.” For the record, while it’s not popular to say, I have strong sympathies for the view that people who don’t pay income tax should not be allowed to vote for people who determine how income taxes are spent or, more precisely, redistributed.
You mention the direct election of Senators, which was imposed by the 17th Amendment in 1913 as a reason to support effective elimination of the Electoral College. And I’m not surprised you would since both are efforts to diminish federalism and increase the power of Congress. I believe the 17th Amendment was a big mistake and that it should be repealed. I am far from alone, and many serious people who spend a lot of time thinking about politics agree. (Of course, almost none of these are Democrats.) Here’s one example: http://www.nationalreview.com/nrof_bartlett/bartlett200405120748.asp
And here’s a whole web site devoted to the question of the 17th Amendment:
You say that there is “an expectation that the person who receives the most votes will become the president.” While that outcome occurs the majority of the time, there’s a difference between an expectation and blind assumption. Perhaps a better way to phrase your sentence is “Americans are not well-enough informed about their system of government, particularly due to our terrible public schools, to understand how their elections work.” But ignorance is not a good reason to change our nation.
Indeed, you make my point (and more importantly Madison’s point) for me when you say “the will of the majority could be thwarted.” Of course it could! That’s the whole point of the system, to prevent a tyranny of the majority, as well-described by de Tocqueville
. (I strongly urge you to read this web page.)
Your next argument about the minority vote not counting is also a poor one. First, it’s not right to say that if someone wins by 1% then the minority should have known that they were wasting their time by voting. Second, it’s better to have the minority’s vote not matter very much on a state-by-state basis than on a national basis. As I’ve said before, that’s the whole point of the system, and it’s precisely what you’re trying to eliminate. Another way to put it: It’s true that Republican votes in California don’t matter very much right now. But that’s better than making it so that Republican votes don’t matter anywhere. Or in a few years, when political tides turn as they always do, it’s better than ensuring that Democrats’ votes anywhere don’t matter. Please don’t bother trying to argue that this measure would somehow be good for Republicans. It’s obviously false today, likely to be false for at least a few years to come, and it’s not the point. It’s only Democrats who are thinking primarily about whether wrecking the Electoral College is good for their political ambitions. I don’t care which party it’s good for. It’s just a bad idea.
Your argument about battleground states is just silly. All that this “compact” would do is change which states are the battlegrounds, moving the interest of presidential candidates from a range of widely-varying types of states to a few large states. When the two most populous states and most of the next half-dozen biggest states tend to vote for the same political party, the idea that small state’s votes should be allocated to the popular vote is simply saying that the small states’ citizens shouldn’t bother voting. It’s no different than the argument you currently make about California Republicans, except at least those people are being controlled by events in their own state. You want to make Coloradoans subject to the views of Californians and New Yorkers. It’s simply outrageous and inexcusable.
And your claim that Colorado will still get attention from politicians because there are so many independent voters here doesn’t hold water. Is a politician really going to spend a lot of time and money fighting for 1/3 of a small state rather than 25% or even 15% of a big state, and get-out-the-vote efforts in the big states? No. Colorado will lose almost all of its political importance, and smaller states will be even worse off, directly the opposite of the reason behind our nation being founded as a Republic, not a Democracy.
The fact that the Constitution does not say it must be “winner takes all” does not mean “we are not abrogating tradition by moving towards a national popular vote.” Of course that’s what you’re doing! When you have more than two centuries of avoiding something, wouldn’t you agree that moving toward it is “abrogating tradition?” This is your most transparently wrong argument so far, and I doubt even you believe it.
The ability of a state to get out of the “Interstate Compact” is actually one of its weak points, and demonstrates how blatantly partisan the measure is. All it means is that if the party that controls a state believes the other party is likely to have a majority of the national vote, then they’ll pull out of the compact. Also, imagine the power that one state might wield over others in the “compact” if that one state could invalidate the whole compact with withdrawing, particularly if the other states were dominated by short-term partisan concerns rather than doing what’s best for their states’ citizens. Our election rules must not be changeable on the whim of people who believe they can gain political advantage from changing them, and that’s exactly what you’re doing.
Your final sentence makes clear how you and other supporters of this measure think, which is to say in a way which has no respect for or understanding of the importance of avoiding pure democracy in America. You say the current system “prioritizes an unfounded notion of federalism over achieving the result that best reflects the will of the majority.” I wasn’t angry with your view until your last sentence; I just thought it was another poorly conceived liberal brain cramp. The idea that federalism is an “unfounded notion” is ironic, since it’s our FOUNDING notion. Not just ironic, but frightening coming from someone in your position. The idea that the “will of the majority” should always rule is precisely antithetical to one of the key reasons our nation became great.
Anyone who could utter your last sentence should have to go back and read some history before being allowed to serve in public office. It’s truly shocking for its ignorance and for your willingness to destroy our electoral system because of a muddle-headed do-gooder feeling about the “will of the majority”, particularly when you stand a very strong chance of destroying the value of the majority in your own state sometime soon. In effect, you are saying that the majority in any given state is irrelevant if the majority of the rest of the nation disagrees. It’s a repugnant position to take. But in fact, I’m sure that’s exactly the point for you and other Democrat supporters of this truly anti-American measure. You simply want to maximize the chances that Colorado’s electoral votes go to a Democrat and you assume that if the popular vote would go to a Republican then you’ll get the state to pull out of the Compact. You should be ashamed.
I hope that HB1299 fails, but if it doesn’t I guarantee you that it will be used as a hammer with which Democrats (and any Republican stupid enough to support it) will successfully be pounded in the next election. I believe that not just Republicans but also most independent voters will find your view as reprehensible as I do, and particularly so because of your claim that the fundamental principles of our nation’s system of government are “unfounded”.