National Popular Vote and What Constitutionalism Is Not

Politico, and everyone else, come late to the story that states are starting to look past the Electoral College, by directing their electors to vote not for the state’s favorite, but for the winner of the national popular vote.

This plan has actually been in the works for a while. Under the initiative, led by National Popular Vote and seconded by all the right election law groups (the Brennan Center & FairVote), once states comprising a majority of the Electoral College votes (270) pass enabling legislation, all states so bound will give their electoral votes to the winner of the national popular vote, without regard to the winner of their state’s popular vote. It’s a clever way to work around the Twelfth Amendment, by working within the Amendment’s structure. Since the amendment specifically references state procedures, NPV is a violation of neither the letter of the law, nor its spirit. It’s just creative.

Perhaps unsurprisingly, conservatives don’t like it (see supra RedState). Their arguments, however, demonstrate two things. First, conservative respect for states’ rights ends precisely where their self-interest begins. Second, more than us, and thus contrary to the narrative continually leveled against us, the modern far-right seems to regularly confuse emotion and politics with law, and constitutionalism. Take the common argument against government spending: that it’s unconstitutional, by which the speaker means “unwise,” or possibly, “novel.” Maybe. But those aren’t the same, are they? Or RedState’s preface to what passes for its anti-NPV originalist/legal argument: “[NPV] is well within the boundaries of what the Constitution envisioned. I just disagree.”

Oh? Well, that’s not how the system works. The presence of the federal Constitution does not elevate all arguments to the constitutional level. The Constitution creates discretion, and a set of possible outcomes. Most debates center around the selection of one such outcome over another. The assertion that one outcome lies outside of the permissible range therefore carries real meaning, expands the consequences of the debate, and ought not to be made casually, lest we confuse the limits of the rule of law with the limits of wisdom. By design, the two are not coextensive.

Sophisticated players should realize this, because your average political debate ought to be had on the narrowest ground possible, to encourage cooperation, and avoid the needless gridlock that occurs when ego and ideology come into play. That’s simply not possible if one player tacks a frivolous “constitutional” claim onto every issue.

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75 comments

  1. This is not unexpected and par for the course with liberals. In much the same way that they like to use courts to make end-runs around legislatures, they are now using legislatures to make an end-run around the Constitution.

    I checked the 2008 presidential election results for the 20 states that have adopted these measures. I’d like to say I was surprised by the results but they were exactly what I expected:

    Arkansas M
    California O
    Colorado O
    Connecticut O
    Deleware O
    Hawaii O
    Illinois O
    Maine O
    Maryland O
    Massachussets O
    Michigan O
    Nevada O
    New Jersey O
    New Mexico O
    New York O
    North Carolina O
    Oregon O
    Rhode Island O
    Vermont O
    Washington O

    It’s funny that you covered this topic today because I was just hinking about the issue this morning in the context of a discussion I was having on another blog about how Obama has thus far neglected rural and outer-suburban communities. We were discussing how the WH seems primarily focused on cities, which is also what I expected and if this signals a lack of concern about rural voters. I think it’s obvious it does and I would suspect that the WH saw any rural gains in 2008 as a fluke and nothing to create long-term policy around.

    This is a pretty simple discussion really. If you’re a liberal then you want o see the cities controlling the vote because cities tend to be more liberal. If you’re a conservative you want he EC to stand because it gives smaller, conservative population centers a bit more leverage.

    One thing that the Left might want o consider in the context of this discussion is the actual political leanings of the electorate. Conservatives outnumber liberals 2-1 and that margin is actually growing. The only thing that has prevented a landside towards the Right is the unwillingness of the GOP from 2000-2008 to implement an actual conservative agenda. If that were to change, per chance with a Tea Party inspired race back to conservative principles, I think liberals might wish they still had the EC to protect them from a popular vote. So I guess the moral of the story is to be careful what you wish for. Political fortunes can change in a minute.

    1. Conservatives only makeup 40% of the electorate, moderates 35% and liberals 21%. I assume doesn’t-give-a-rat’s the remaining 4. If the GOP enacted an “actual conservative agenda” I would imagine that they would go a long way to alienating those all important moderates.

      Back to the issue of direct elections, if someone won with less than 45% of the popular vote but still managed to win the EC (I have seen it argued that it is possible to win the presidency with as little as 18% of the popular vote) they would have such a hard time governing that it would not be worthwhile.

      1. I think you’re assuming the moderates lean left. I would disagree.

        I understand there all kinds of fantastical scenarios where someone wins with a very small portion of the popular vote, but what’s the worst example we have seen? Bush lost the popular vote by a very slim margin and I think that was one of only 4 times it has happened. The country did not plunge into anarchy.

        1. The link I gave you had the full break down of how each group votes. Most Democrat voters consider themselves moderate.

          1. Yeah, but what do most moderates call themselves? I’d guess Independent.

      2. Oh? Didn’t it? A highly publicized, month long trial resulting in a Supreme Court decision that was (yes) entirely contrary to precedent? And put in office a man entirely unqualified for the job, as demonstrated by his performance?

        I’m not saying he stole the election. I’m saying these problems, while rare, trigger a deeper breakdown in the system, and can’t be waved away by “Oh that was just this once.” When the harm is great the frequency isn’t so important.

        1. I think you’re definition of anarchy and Oxford’s are a little bit different.

        2. Pardon if I consider threats to democracy, short of anarchy, concerning. Also OED might be interested in “you’re” usage of “you’re.” :)

          1. So, curious, how was your life affected, in a negative way, by the Bush years? Less educational opportunities? Less freedom of movement?

            And correct me if I’m wrong, but I don’t remember Bush being thrown out of his office by popular vote in 2004.I also don’t remember the tanks showing up on the WH lawn to force Bush out of office in 2008.

            Seems like democracy wins again.

    2. oneiroi · ·

      “In much the same way that they like to use courts to make end-runs around legislatures, they are now using legislatures to make an end-run around the Constitution.” I still dislike when you say stuff like this, conservatives will do it at a drop of the hat for something they “believe in”. Like most of the constitutional stretches they’ve made concerning national security. Or how they act towards immigration. Or abortion. Anything. I mean, that’s kind of how most people, left or right, are trying in whichever way they can to get their beliefs/ideas enacted in the government at any level.

      About your claim of conservative swing right idea….People on the left right now are saying the exact same thing about Obama. If only he went farther left, he would get the left on board and get more votes. Instead of alienating them. In non-hypotheticals, I don’t think going further “right” or further “left” will suddenly get you a landslide.

      1. I don’t think the GOP has to swing farther Right. They just need to adopt mainline conservative principles. Smaller government, fiscal responsibility, family-friendly policies, conservation, etc. Nothing extreme or radical. What we saw under Bush with regards to fiscal policy was basically a liberal approach to spending and a disregard for other elements of traditional conservatism.

      2. You guys are basically the mother of all “No True Scotsman” fallacies. Name one conservative leader who’s followed through on those promises in the last… ummm… ever.

        1. Ames – do you really want to go down the road of no follow-through considering what the President has done so far?

        2. Yes. Obama’s hit the ballpark or the exact center of the biggest of his promises. Your guys haven’t approximated that since, well, at least before Nixon.

          1. Ames – HCR was a joke with regard to liberal principles or really any principles. That’s why liberals pundits are lining up to take whack at the administration faster than a pinata at a kid’s birthday party.

            Guantanamo is still open for business. We’re still in Iraq and we’ve ramped up in Afghanistan. DODT is still on the books. Gay marriage is still not the law of the land. I mean, really, when you talk about his ‘biggest’ promises…what has been a big success?

            With regard to the Right’s promises, The Contract with America was executed completely and fulfilled all of the pre-election promises.

          2. We remember the Contract differently. Most of the centerpieces were vetoed by Clinton or accepted by him and struck down by the Supreme Court. The most symbolic ones (Balanced Budget Act; Citizen Legislature Act) hit the floor and were laughed out. However, Newt convinced you that he did a good job, which I’m sure is all he really cared about in the first place. What’s funny about that, too, is that that was split governance. How did you guys do BETTER with a Democratic president than you ever did when you controlled the Congress, Court, and White House? I have a theory: because given free reign, conservatives suddenly stop caring about what they said they care about.

            HCR was *passed*. A lot of it will make a significant difference for average Americans (ban on PECs). Where it fails, it fails because the GOP whipped the electorate into a blood-soaked frenzy over freaking nothing. Do you really lay that blame at OUR feet? Or maybe at the feet of your belle of the last year, half-term governor Palin?

            Obama promised to focus on Afghanistan to the exclusion of Iraq. He has. People may be upset about that, but it’s *what he promised.* Iraq is on time, actually, as some article last week (where is it?) pointed out. Guantanamo is disappointing, but as noted by more than a few posts here, the product of Obama misunderstanding just how thoroughly the Bush Administration’s commitment to torture would complicate that.

            Gay marriage you’d have to be naive to think would pass first term. I’m sorry but that’s the way it is. DADT is on-track, but yes, should’ve been done earlier.

            Financial reform, too, is a BFD. It too is not as strong as it could be, but it fundamentally accomplishes what it was set out to do. And we’ve got two liberal Supreme Court justices. It’s been a BUSY two years, largely on track with his agenda, to the extent feasible. It’s really hard to see it otherwise.

            1. As I said, you really need to read Democracy Journal. They dispute almost every point you just made. Let me give you just one quote by Danielle Allen:

              “…if Obama is a leader, and not simply an office-holder, he should be able to guide the public in a progressive direction nonetheless. Is he doing so? He has, by and large, not yet begun.

              How do we know? The declining poll numbers are not the tell-tale sign; it’s instead the absence of a strong sense of direction. On the principle that a blueprint for one’s friends is equally a blueprint for one’s enemies, Roosevelt famously kept to himself the timing and nature of his tactical moves. But he showed everyone the target at which he was aiming: “A New Deal for the forgotten man.” So did Johnson: “The Great Society.” So did Ronald Reagan, preparing for reelection: “Morning in America.” Obama has yet to tell us where, under his leadership, we are heading.

              Obama promised the electorate big, bold initiatives and we’ve got incremental legislation because he can’t sell his ideas. You say it’s because the GOP corrupted the debate but it’s the belief of most that good ideas can weather any storm. At the end of the day the complete lack of achievement from this administration is a combination of a President who realized charisma isn’t enough and a public that still refuses to accept liberal policy on a large scale.

            2. Basically Obama needs a jingle? Is that what you’re arguing? This, not the above-named accomplishments, would constitute “success”?

              I agree to an extent. We’ve lost the PR war on a lot of these programs, even if we’re starting to win them belatedly, because we’re not willing to fight dirty, and the GOP is. “Good ideas can weather any storm” is a fantasy, especially when the GOP’s strategy was not to AVOID the kind of debate where that’s true, but engage on the polemic level. You can’t suborn a national discussion that focuses on xenophobia and anger and the look confused when that supplants any useful debate.

  2. I think you’re missing the premise of the post, which is that NPV is well within constitutional limits. State discretion over electors is a feature of the Amendment, not a clever lib’rul trick.

    The states list is interesting. I think it’s also wrong. I just talked to the Assemblyman I worked for and he was telling me how disappointed he was that NPV *didn’t* pass, despite his efforts. The Senate passed it, but only late, and the budget crisis prevented the Assembly from taking it up before its (much deferred) recess. Apparently a few rogue guns will push for a special session to clear that and some other vital election law bills, but heirarchy being what it is, it’s not looking good. If they fail, the bill dies, despite Senate passage, because 2011 marks a new term.

    You also correctly state that more people identify as liberal than conservative, but misunderstand why, and the import of that identification, which is not much. The identification gap is a result of the right’s rather successful demonization of the word “liberal.” Good for them!!! However, the identity gap isn’t enough to displace the importance of moderates, who have broken left and continue to do so. What you’re left with there is a hollow PR victory; like the 60% of Americans who think the health care bill is “socialism,” but the 57% who view “socialism” favorably. Oops!!!

    I don’t see this as a city/rural issue. I’m sure you do, but I don’t know what Obama plans have deliberately targeted cities to the exclusion of rural areas and suburbs. Also, to the extent the Electoral College favors rural areas, acknowledge that it does so by engaging in a fiction, in some cases giving one candidate a “victory” when a full 51% of the country would see it otherwise. If it does anything the EC tilts electoral results away from reality and towards a fiction that, while favorable to some, is still fictitious. Call it affirmative action for farms :).

    By taking up the city/rural issue, too, I think you’re engaging in the wrong type of analysis. To quote this assemblyman, we don’t pass election law bills because they’re good for our side, we pass them because they’re Good (this will sound naive, but we believed it and did it, and he continues to). Keying election results to the NPV is good for democracy. If it helps Democrats, incidentally, well, that’s another question.

    1. Ames the list came from the article you linked to. Maybe you need to verify your sources?

      As for this:

      “The identification gap is a result of the right’s rather successful demonization of the word “liberal.” Good for them!!! However, the identity gap isn’t enough to displace the importance of moderates, who have broken left and continue to do so.”

      …it’s just not even remotely accurate. I would suggest you read any of the articles in the last Democracy Journal (a ‘progressive’ publication) but especially the pieces by Joel Klein and William Galston. They are liberals who seem to disagree with you completely.

    2. It does not shock me that Politico would be wrong about something. And Pi’s statement of the moderate composition is clearly right. If you’re talking about articles like this, http://www.democracyjournal.org/article.php?ID=6734, they note the disunity of the Dems, not their lack of support in the populace. Besides, elections are kind of a res ipsa loquitor on that aren’t they?

      1. I double-checked and the source was actually NPV. It appears though that I misread it. The 20 states were ones where, “The bill has passed..legislative chambers…”

        Luckily only 5 states have been silly enough to actually pass it as official law. Still, they are all blue states, so my theory holds on their motivation.

  3. While those states may have voted for Obama, the Republican members of the legislatures have generally been strongly in favor (something like 22 out of 27 Republican senators in NY were in favor). The group that this change would really benefit, as the first poster mentions, is the majority of the country. Conservatives tend to think that majority is conservative, and liberals tend to think it is liberal. The crucial point is that everyone would have their vote counted and the majority would actually be able to decide who leads our nation, and that is an idea that I think everyone should agree with.

    1. That approach sounds good on paper but it completely disregards social and cultural differences from state-to-state, region-to-region. The US is a big country. Much bigger than it was when the Constitution was written and even then the Founding Fathers believed that dense population centers should not dominate the electoral process.

    2. So rural areas are entitled to a bigger vote than they get based on population because of…

      1. You shouldn’t actually need this explained to you but perhaps you’ve been in Manhatan too long.

        Let’s say that the US only contained two races, black and white. Every white person in America voted for a candidate that vowed to bring back slavery. Every black person in America voted for a candidate that vowed to keep them free. Right now there are more white people than black people so the pro-slavery guy would win. Purely speaking this is democracy but would you say that in that case democracy has failed black voters?

      2. That implicates limits on democratic power extrinsic to the political process. Namely, blacks are a protected class. “Farm owners who would like their votes to have more power” are not.

        1. Ahhh, but a majority of white voters could also elect legislators who could amend the constitution to declare blacks no longer protected…correct?

        2. To be clear, your argument is that cities are big and therefore there’s a threat that they’ll strip farms of all rights, tyranny of the majority, etc. And that that danger is equivalent to the danger posed by racist exploitation of the democratic process.

          Right?

          1. Just answer my question Ames – all will be revealed.

          2. IT’S A TRAP.

            But seriously, no. It’s a silly question that I’ll answer yes, and you’ll imagine you’ve won something when you haven’t.

            1. I don’t think it’s a silly question at all. The EC is meant to protect minorities from majorities. As you so eloquently put it, it’s like electoral Affirmative Action.

              The fact is, if you remove the EC the campaign process would change but certain areas would still be ignored. It stands to reason that rural areas would still get the shaft. Ames – you always say that it’s the responsibility of the people trying to change the law to prove why? Is it your contention that without the EC rural Montana would suddenly be an important campaign stop?

            2. I’m not sure where you got that idea. The Electoral College is, or was, meant partly to facilitate an election in an age when communication lines were difficult and knowledge about the candidates not always available to the voters, and partly to establish a political balance between the northern and the southern colonies/states. Neither of those two concerns are particularly relevant in the modern day.

              I’m not even sure how the EC could protect minorities. All it does is elect the President. It seems that the only minority involved in that process is the losing party.

              1. The EC ensures that voters in less populace areas have a louder voice. It doesn’t mean that voice overshadows big cities, but at least they have a fighting chance. Without the EC politicians will only cater to the most populated areas. In my state, for example, there are enough rural votes to balance out the city votes so it becomes a balanced contest when a politician is trying to get our EC votes. Countrywide though the rural voices carry less weight. Even beyond that, whole states might get ignored. I can’t imagine RI suddenly being important.

                Ames says you have to have a very valid reason to change current law and the responsibility to explain why lies with the people trying to change it. “We could have changed the outcome of 4 presidential elections” is not a good enough reason.

                If someone can demonstrate to me how no EC makes rural areas more important I’d love to hear it.

              2. For one thing, such special interests shouldn’t even have a place in the election of an executive. It’s fine for the legislature, sure, but the President is the executive for the whole nation, not any particular parts of it. Actually, you could argue that the EC was meant precisely to keep special interest out of the process by not leaving the election to Congress or another permanent body. (Cf. Federalist Papers no. 68.)

                In any case, I think you’re overestimating the importance of the EC in this regard. You say that small states would be ignored – but is RI at all important right now? Or when was the last time a presidential candidate bothered to campaign in WY or ID?

                What the EC actually does is give a few swing states an influence way out of proportion with their actual population – if you’re a Republican in CA or a Democrat in TX, your vote doesn’t really count at all. But on the other hand, a few thousand or even hundred votes in OH or (as in 2000) FL could decide the whole election.

                So here are three reasons for changing the system:

                1. It was designed for historical circumstances which are no longer relevant.

                2. It opens the possibility of electing a president that is not actually supported by a majority – and regardless of whether this has happened in 7% or 9% of elections, it’s a non-trivial occurence and a democratic problem.

                3. It effectively disenfranchises a whole lot of people in solid states (including a lot of rural voters in states with very large urban centres), while giving citizens in swing states disproportionately high influence (again including states with large urban centres such as OH or PA). With NPV, at least rural voters can be sure that their vote counts exactly the same as one in Philadelphia or Cincinnati.

                1. So paint us a picture then. How would the next election look without the EC? How would the campaigning change? How would the end-result be different?

        3. Mike, why are you suddenly talking about legislators in a thread about the Electoral College?

          Besides, as you know, these hypothetical “white voters” would also need a majority in 3/4 of the state legislatures, which seems to pretty adequately protect the “social and cultural differences” between states and regions you refer to above.

          1. If you’re correct, Lanfranc that state legislatures can protect minorities from an out-of-control federal, then why fear the EC?

  4. Alex said what I tried to in the last paragraph, but did it better. Thanks buddy :)

  5. The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

    Every vote, everywhere, would be politically relevant and equal in presidential elections. It would no longer matter who won a state. Elections wouldn’t be about winning states. No more distorting and divisive red and blue state maps. Candidates would need to care about voters across the nation, not just undecided voters in a handful of swing states.

    The current winner-take-all rule (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in each state) used by 48 of the 50 states ensures that the candidates do not reach out to all of the states and their voters. Candidates have no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they are safely ahead or hopelessly behind.

    The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes–that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

    The bill has been endorsed or voted for by 1,922 state legislators (in 50 states) who have sponsored and/or cast recorded votes in favor of the bill.

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. Support for a national popular vote is strong in virtually every state, partisan, and demographic group surveyed in recent polls in closely divided battleground states: Colorado– 68%, Iowa –75%, Michigan– 73%, Missouri– 70%, New Hampshire– 69%, Nevada– 72%, New Mexico– 76%, North Carolina– 74%, Ohio– 70%, Pennsylvania — 78%, Virginia — 74%, and Wisconsin — 71%; in smaller states (3 to 5 electoral votes): Alaska — 70%, DC — 76%, Delaware –75%, Maine — 77%, Nebraska — 74%, New Hampshire –69%, Nevada — 72%, New Mexico — 76%, Rhode Island — 74%, and Vermont — 75%; in Southern and border states: Arkansas –80%, Kentucky — 80%, Mississippi –77%, Missouri — 70%, North Carolina — 74%, and Virginia — 74%; and in other states polled: California — 70%, Connecticut — 74% , Massachusetts — 73%, Minnesota — 75%, New York — 79%, Washington — 77%, and West Virginia- 81%.

    The National Popular Vote bill has passed 30 state legislative chambers, in 20 small, medium-small, medium, and large states, including one house in Arkansas (6), Connecticut (7), Delaware (3), Maine (4), Michigan (17), Nevada (5), New Mexico (5), New York (31), North Carolina (15), and Oregon (7), and both houses in California (55), Colorado (9), Hawaii (4), Illinois (21), New Jersey (15), Maryland (10), Massachusetts (12), Rhode Island (4), Vermont (3), and Washington (11). The bill has been enacted by Hawaii, Illinois, New Jersey, Maryland, and Washington. These five states possess 61 electoral votes — 23% of the 270 necessary to bring the law into effect.

    National Popular Vote is a bipartisan coalition of legislators, scholars, constitutionalists and grassroots activists committed to preserving the Electoral College, while guaranteeing the presidency to the candidate who earns the most votes in all fifty states.

    See http://www.NationalPopularVote.com

  6. FYI

    By state (electoral college votes), by political affiliation, support for a national popular vote in recent polls has been:

    Alaska (3)- 78% among Democrats, 66% among Republicans, 70% among Nonpartisan voters, 82% among Alaska Independent Party voters, and 69% among others.
    Arkansas (6)- 88% Democrats, 71% Republicans, and 79% independents.
    California (55)– 76% Democrats, 61% Republicans, and 74% independents
    Colorado (9)- 79% Democrats, 56% Republicans, and 70% independents.
    Connecticut (7)- 80% Democrats, 67% Republicans, and 71% others
    Delaware (3)- 79% Democrats, 69% Republicans, and 76% independents
    District of Columbia (3)- 80% Democrats, 48% Republicans, and 74% of independents
    Idaho(4) – 84% Democrats, 75% Republicans, and 75% others
    Florida (27)- 88% Democrats, 68% Republicans, and 76% others
    Iowa (7)- 82% Democrats, 63% Republicans, and 77% others
    Kentucky (8)- 88% Democrats, 71% Republicans, and 70% independents
    Maine (4) – 85% Democrats, 70% Republicans, and 73% others
    Massachusetts (12)- 86% Democrats, 54% Republicans, and 68% others
    Michigan (17)- 78% Democrats, 68% Republicans, and 73% independents
    Minnesota (10)- 84% Democrats, 69% Republicans, and 68% others
    Mississippi (6)- 79% Democrats, 75% Republicans, and 75% Others
    Nebraska (5)- 79% Democrats, 70% Republicans, and 75% Others
    Nevada (5)- 80% Democrats, 66% Republicans, and 68% Others
    New Hampshire (4)- 80% Democrats, 57% Republicans, and 69% independents
    New Mexico (5)- 84% Democrats, 64% Republicans, and 68% independents
    New York (31) – 86% Democrats, 66% Republicans, 78% Independence Party members, 50% Conservative Party members, 100% Working Families Party members, and 7% Others
    North Carolina (15)- 75% liberal Democrats, 78% moderate Democrats, 76% conservative Democrats, 89% liberal Republicans, 62% moderate Republicans , 70% conservative Republicans, and 80% independents
    Ohio (20)- 81% Democrats, 65% Republicans, and 61% Others
    Oklahoma (7)- 84% Democrats, 75% Republicans, and 75% others
    Oregon (7)- 82% Democrats, 70% Republicans, and 72% independents
    Pennsylvania (21)- 87% Democrats, 68% Republicans, and 76% independents
    Rhode Island (4)- 86% liberal Democrats, 85% moderate Democrats, 60% conservative Democrats, 71% liberal Republicans, 63% moderate Republicans, 35% conservative Republicans, and 78% independents,
    South Dakota (3)- 84% Democrats, 67% Republicans, and 75% others
    Utah (5)- 82% Democrats, 66% Republicans, and 75% others
    Vermont (3)- 86% Democrats; 61% Republicans, and 74% Others
    Virginia (13)- 79% liberal Democrats, 86% moderate Democrats, 79% conservative Democrats, 76% liberal Republicans, 63% moderate Republicans, and 54% conservative Republicans, and 79% Others
    Washington (11)- 88% Democrats, 65% Republicans, and 73% others
    West Virginia (5)- 87% Democrats, 75% Republicans, and 73% others
    Wisconsin (10)- 81% Democrats, 63% Republicans, and 67% independents

    http://nationalpopularvote.com/pages/polls.php

  7. The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities (going as obscurely far down in name recognition as Arlington, TX) is only 19% of the population of the United States.

    When presidential candidates campaign to win the electoral votes of closely divided battleground states, such as in Ohio and Florida, under the state-by-state winner-take-all rules, the big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami certainly did not receive all the attention or control the outcome in Ohio and Florida in 2000 and 2004.

    Likewise, under a national popular vote, every vote everywhere will be equally important politically. There will be nothing special about a vote cast in a big city or big state. When every vote is equal, candidates of both parties will seek out voters in small, medium, and large towns throughout the states in order to win. A vote cast in a big city or state will be equal to a vote cast in a small state, town, or rural area.

    For example, in California state-wide elections, candidates for governor or U.S. Senate don’t campaign just in Los Angeles and San Francisco, and those places don’t control the outcome (otherwise California wouldn’t have recently had Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger). A vote in rural Alpine county is just an important as a vote in Los Angeles.

    If the National Popular Vote bill were to become law, it would not change the need for candidates to build a winning coalition across demographics. Any candidate who yielded, for example, the 21% of Americans who live in rural areas in favor of a “big city” approach would not likely win the national popular vote. Candidates would still have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as voters in Ohio.

    1. If only four Presidents have won the office without having the popular vote, isn’t that a pretty clear sign the EC doesn’t radically change the potential outcome?

    2. You’re thinking about it the wrong way. “Only” 4 is still 11% of all Presidents. And, the Presidents, JQA, Jackson, Hayes, and Bush, add up to 24 years, or 10% of the country’s lifetime.

      1. I’m curious, without the EC, what point in having states at all? Why not move to federal-only country?

      2. I can’t imagine you’re asking this question in good faith, but for one, states reserve the entirety of the “police power,” which means power over most of the incidents and laws governing everyday life. Should you doubt for a second how serious that is, and what a different country it would be without it, file or defend a breach of contract claim where the parties contest whose law governs :).

        1. I’m aware of what their powers are, but I’m saying, why do we need 50 states? Can’t we just collectively pick some some form of federal government to make policy for the whole country? Why do we need state and local governments? Is it just a matter of logistics or is there more to it than that?

        2. I still can’t imagine you mean this question in earnest. Just in case, http://biotech.law.lsu.edu/cases/pp/new_state_ice.htm

          1. Seriously? That’s your reply? I mean, big-ups for mentioning fellow-Louisvillian Brandeis, but I’m not going to read that. If you can’t put things into your own words it seems to demonstrate a concession of my point.

            If you’re trying to make the ‘states as laboratories’ argument, why couldn’t the federal government use the whole country as a laboratory? They’ve done it before (Prohibition), do it now (No Child Left Behind), and you certainly advocate they do it in the future (gay marriage).

          2. It’s a stupid question being asked in bad faith. I don’t feel required to offer much of a reply. States can try small-scale answers to national questions, or pioneer their own answers for local problems that the national government couldn’t (or wouldn’t). Prohibition and NCLB are examples of why federal programs DON’T work when tried first at that level.

      3. I checked and 11% is incorrect. I believe the correct % is 9.09%/ Even then this is wrong as well. Your’re taking the total number of Presidents and going from there. The way to look at it though is to take the total number of terms and then calculate how many were affected by the EC. There have been 56 terms counting Obama’s. That means only 7.14% have been affected by the EC.

        You also mentioned 24 years but this is also incorrect. JQA served for 4 years. Benjamin Harrison served for 4 years. Hayes served for 4 years. That’s 12. Bush served for 4 years after the 2000 election and then won re-election with the popular vote, so you can only count 4 years for him. that’s 16 total out of 221 years or 7.24% for those that like percentages. Again, not a huge problem considering that in all 4 cases the EC-elected President left office peacefully.

        We should also remember that some very bad Presidents (Buchanan, Harding, Grant) all won the popular vote. It’s certainly not as though the popular vote is infallible.

        1. It is not about whether the Electoral College is infallible or not, it is about picking the person that best represents the US. Most democratic countries that have presidents choose the direct elections approach because it gives each person a single vote – one man/woman, one vote. At the moment people living is small states have a larger say in who is president than the people living in larger states.

          1. So abandoning the EC is really just about making people feel good about their votes? How would the election process look different with the removal of the EC?

          2. Yes, it’ll deprive some states of their artificial importance (Iowa? Huh?). But focus it on NATIONAL problems rather than pandering.

            1. So you’re saying your guy pandered in the last election? And of course when you say ‘national problems’ you mean problems that affect the majority of Americans so the minority sort of gets screwed.

            2. Your belated concern for the minority, where it affects you, is fascinating :)

              1. But I’m right though. If elections are about ‘nationa’ issues then candidates are going to play the odds and pick those issues which have the potential to impact the greatest number of people. So, for example, urban bridges take priority over rural broadband access. Really what we just end up with is a whole new way to ignore portions of the population, right? Instead of ignoring non-large, non-swing states they’ll just ignore areas with low population density. What you’re advocating is an electoral shellgame.

            3. Anyways, note, too, that the EC doesn’t really protect minorities. It protects a set of states that fit the qualities of having (1) a non-trivial number of electoral votes (so, midsize states), and (2) populations that are closely balanced, politically. That excludes the importance of New York, California, and Texas (at one extreme), and Rhode Island at the other. States that fit one qualification but not another are also ignored (…Kentucky). How is that desirable?

  8. In elections in which the winner is the candidate receiving the most votes throughout the entire jurisdiction served by that office, historical evidence shows that there is no massive proliferation of third-party candidates and candidates do not win with small percentages. For example, in 905 elections for governor in the last 60 years, the winning candidate received more than 50% of the vote in over 91% of the elections.

  9. States still exist for all the same reasons they do now, but the President doesn’t lead the states, he leads the people, so that is who will be voting for him.

  10. From Ames:

    ” “Good ideas can weather any storm” is a fantasy, especially when the GOP’s strategy was not to AVOID the kind of debate where that’s true, but engage on the polemic level.”

    It’s kind of amazing how the enthusiasm of modern liberals wilts in the face of adversity these days. Just to remind you though…

    -The New Deal succeed in the face of massive criticism from the Right about the power of the federal government.

    -Civil Rights succeeded in the face of racism from coast to coast.

    -Labor succeeded in the face of a wealth class with power we have never seen before or since.

    Those are just a few examples of liberalism triumphing over massive opposition. Now, you can minimize the strength of that opposition in each case, but you’d be lying to yourself.

    I think what is a mor evalid discussion is to talk about what the big issues of today and how this affects liberal policy making. Simply put HCR was/is the only thing left on a scale similar to earlier liberal triumphs. Everything else is small in comparison and when I say small, I mean they aren’t issues that people see injustice on every day. When there was no protection for workers, most Americans felt it every day. When blacks were second-class citizens everyone saw segregaton every day. When the New Deal was being debated everyone was feeling the effects of the Depression. Today you say HCR is important but the majority of Americans have decent healthcare. You say gay marriage is important but it only directs a very small segment of the population. We can’t see the need for green technologies because we can all gas up our cars in the morning. So liberal policies may be no less important today but they are a much harder sell. You seem to be saying that you all aren’t up to that task.

    I would also add that some of your earlier victories directly complicate needed reforms today. Affirmative Action pisses off poor whites that need economic help that is color blind (a reference to our AA discussion). Teachers’ unions might have been a need 50 years ago but now they stand in the way of education reform.

    1. Sully gives a good reply to exactly these concerns: http://andrewsullivan.theatlantic.com/the_daily_dish/2010/07/the-benefits-of-the-constant-struggle.html

      The remarkable commonality in all of those earlier triumphs you mention is that, yes, there as now, conservative America stood ironclad, citing absurd concerns, nativism, racism, or simply blind self-interest, to oppose the march of progress. They also all required LONG fights. You can’t blame the beginning of a fight for failing to look like the end, but both are important. We’re also only two years in to a four year term. In that two, Obama’s led reason to not inconsiderable triumphs over rage, and is starting to turn the opposition against itself, which is its own kind of triumph (given the predecessor).

      It’s kind of sad (and inaccurate) that you think HCR is unimportant because it only helps the minority. You’re also forgetting the finreg bill. Again. The Securities & Exchange Acts belong with the list of liberal triumphs, and updating them for the modern era is incredibly overdue. The effects aren’t immediately apparent to the common man but Obama’s finreg reforms will matter for a long, long time, and should be acknowledged as such.

      1. We’ll have to agree to disagree that opposition to civil rights and labor organization were conservative-lead efforts. Your point would require me to ignore the terms of TR, Eisenhower and Nixon which is sort of impossible.

        As for the length of the fight, we don’t have to just focus on Obama. We can look at the last 30 years. There just haven’t been any grand liberal victories and the incremental stuff is hard to feel much affinity for.

        I have no problem with minority legislation. The reason I think HCR is unimportant because the net sum will be more harm than good, so it’s a overall bad thing for the country. I actually think a universal system would do less harm. This hybrid system is just going to hurt everyone. The problem is that liberals have adopted incrementalism as a strategy and they also fear not being re-elected more than they care about long-term gains so they refused to fight for what they really wanted.

        1. I don’t think the first major health care reform since 1965 and a very significant Wall Street reform can justly be called “incrementalism”. Certainly both projects turned out different from what was originally envisioned, but that’s just the nature of politics. The perfect is the enemy of the good, as Voltaire said.

          Besides, if the Democrats had insisted on passing either project in its original form, you’d just be lambasting them for being stubborn and out of touch with reality instead. At least this way, they’re getting stuff passed.

          1. No – I would call them principled. We all know they want universal healthcare and strict financial regulations. Why not push for those and refuse to accept something watered-down? Of course, we also know the reason why…politics. Bipartisanship is only sought by the majority for political cover, never on principle.

          2. Well, politics is the art of the possible, as Bismarck said.

            For one thing, a signifcant number of Democrats don’t actually want those things. And for another, if you push too strongly for something you can’t get passed, you just look like a fool. I think Obama is actually one of those few people who do like to seek bipartisanship for the sake of principle, but I guess the Senate GOP disabused him of that notion soon enough.

            1. I disagree. I don’t think he ever believed a non-universal model would work (so I give him credit for being smart enough to recognize that). Bipartisanship provides cover in the likely case incrementalism doesn’t work.

              If the majority of the voting public don’t want universal healthcare, why do so many liberals still want it? Is this a case of ‘we know what’s best for you’?

            2. Er, no? It’s a case of ‘having a different opinion’. Or are we in the territory of Rousseau’s volonté générale now? That disagreements are badwrong and a sign of a weak state?

              1. But I thought liberals had their finger on the pulse of America?

              2. No, no, you’re confusing liberals with demagogues. Liberals try to stay ahead of the trends, demagogues just breathlessly try to keep up with whatever the majority thinks.

                1. Maybe it’s just hat liberals are lead by demagogues? I think we all know there is a disconnect between theory and practice on both sides of the aisle.

      2. TR was a Republican. Not a conservative. And the past 30 years were definitional for modern liberalism. The freedom to buy birth control? We did that. The end of miscegenation laws? Yep. Safe, legal abortion? Just doing our job. Equal pay for equal work? Our pleasure.

        1. You’re just plain wrong there Ames. TR was a classic conservstive in the Disraeli model. He called himself a conservative. Please keep in mind that his (capital P) Progressivism was much, much different than the liberal codeword you guys use today.

          Birth control first became available in 1960. That was 50 years ago, not 30.

          Loving was 43 years ago.

          There’s a reason I was very careful to mention the figure of 30 years. You all did all kinds of good things in the 60s. You just lost steam after that.

          It’s unfortunate that you consider the abortion of nearly 50 million fetuses a victory.

      3. “The effects aren’t immediately apparent to the common man but Obama’s finreg reforms will matter for a long, long time, and should be acknowledged as such.”

        If the effects aren’t immediately apparent, doesn’t that mean it’s too soon to tell if it works as intended, i.e. if these reforms were the right set of reforms?

  11. […] that note, respect to our conservative commentator(s), who engage on that level. Even if we disagree, you’re asking the right […]

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