[Publisher’s Note: Ray is professionally engaged in this effort – Flash]
Call me a crazy strict constructionist, but I have always figured that the easiest way to discern what our founding fathers meant when they wrote the Constitution was to actually read the darn thing first. Maybe, just maybe, the words they used in the document might give us a clue as how they thought our government and our elections should work. We demand that the judges we nominate to the courts actually read and apply the words of the Constitution as written, perhaps we should demand the same of politicians and political activists who claim to invoke the Constitution as their guide. When it is clear they have no understanding of the history or the words of the Constitution, those commentaries cannot be allowed to stand unchallenged.
That was the first thing I thought when I read the article by Shawn Steel about National Popular Vote, and then saw his emails on the issue. He talked about the founder’s intent, and how the National Popular Vote program would “nullify” the Constitution. He also thought that Madison might be spinning in his grave over the concept of the National Popular Vote. Assemblyman Dan Logue has made similar comments, as did Celeste Grieg, President of the CRA. Unfortunately, those comments are not supported by the history or the language of the Constitution
Since Madison was a supporter of a national popular vote for President (he actually voted for it in the Constitutional Convention, even though it lost), I wondered what would he think of the interstate compact known as National Popular Vote. So I read his words too.
This is what the Constitution says, in Article II, Section 1:
“Each state shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors equal to the whole number of Senators and Representatives…” (emphasis added).
Then, explaining this, Madison wrote:
“Without the intervention of state legislatures, the President of the United States cannot be elected at all. They must, in all cases, have a great share in his appointment, and will, perhaps in most cases, determine it.”
In the Federalist No. 68, the only one of the Federalist Papers devoted strictly to the Electoral College, Alexander Hamilton does not even discuss a method by the electors would be selected. Quite frankly, the founders thought the state legislatures would just choose the electors, then they would vote for President. And that is exactly what happened in most cases at our founding. The winner take all by state system, which most states have in place today, did not come into vogue until years later.
The most important thing to understand is that the National Popular Vote Compact does not eliminate the electoral college. I would not support it if it did. It does however utilize the methods provided in the Constitution, and an appeal to each state legislature about what is best for that state, to persuade that state to award their electors to the winner of the national popular vote in all 50 states. That is the exact method the founders contemplated for any method that would determine how the electors should be appointed from that state.
The current method that a vast majority of the states use in choosing the electors who vote for President was not the result of some great insight of our founding fathers. It is rather a tradition, one that developed over many years, and many elections. Because it is a tradition, changing it should be the subject of a lot of thought, and a lot of discussion, but the discussion should start with the facts, and move to deliberation of what benefits the states, and, I think, the voters the most.
This is what we know. The current system benefits a few states, and leaves California,and most other states, on the sidelines in a presidential election. At least 30 to 35 states in any given presidential election are ignored by the candidates, receiving absolutely no attention in candidate time or resources in a campaign. In fact, 70% of the time and resources of the campaigns is spent in less than 10 states. That is not good for the country as a whole. When national policy is set by a few voters in Florida, or Wisconsin, or Ohio, something is wrong.
There are no guarantees in any change, that is for sure. But this I can guarantee, if California keeps the status quo, California will continue to be ignored, and conservatives in California will be forced to suffer Republican presidents who refuse to talk about illegal immigration, because Texas, California and Arizona are not battleground states, or Presidents who support big entitlement programs for seniors, because Florida is, or Presidents who support steel tariffs because Pennsylvania is. Those are the guarantees of our current system.
The Constitution gives each state legislatures the right to determine how to maximize that state’s influence, and Madison and Hamilton both expected those legislatures to make that determination. Will National Popular Vote maximize California’s influence in a Presidential election? I think it will, but it is in the hands of each legislator in each state to make that determination. To resort to an argument that the founders didn’t intend such a decision to be made, or that the current system is constitutionally mandated is wrong on the history, and wrong in fact.
The fact is that California is too big, and has too many Republican votes to be ignored by a Republican candidate. More important, Republican voters are in the cheapest media markets. Democrats will probably spend big bucks in Los Angeles and San Francisco, but those are the most expensive markets in the state. The marginal cost per increase in the number of votes for Democrats will be substantially larger than the costs for Republicans. In fact, our biggest problem with Republican turnout in this state is that our most reliable voters are at work on election day, and commuting sometimes two or three hours to their home. They hear that the Republican loses Florida or Ohio at 5:00 in the afternoon, figure their vote won’t count, and they just go home. A national popular vote system will give them hope that they can change the outcome. The benefit to them of going home and voting will be evident.
Can anyone guarantee that a Republican candidate will spend more money in California? Of course not. But wouldn’t it be foolish of a Republican presidential candidate to leave 1 million Republican votes on the table if those votes actually counted in an election? In the end, those who believe that Republicans would lose a national popular vote are arguing that more people agree with the Democrats that agree with Republicans. I simply do not agree with that assumption. I think most people in this country agree with us, and only get frustrated when they see Republican candidates giving ethanol subsidies (to win Iowa), and free drugs to seniors (to win Florida), big bailouts to GM (to win Michigan), and the vast array of other big government giveaways that the current system seems to mandate to win the Presidency.
I looked at every change that might make California more relevant in the election. I helped sponsor an initiative to award the electors by Congressional district. However, since California only has three competitive congressional districts, we would only see the presidential candidates in three areas of the state, and the rest of the state would be ignored. We have the same problem with a proportional system. Most Republicans get 40 percent of the statewide vote on the natural. Since Meg Whitman recently spent $140 million to add 2% to that total, most Republicans would just take the 22 electors they would get (assuming the Democrats would even change to that system), and go campaign in another state. It is true that National Popular Vote hired me to help them, but it took them six months to convince me this was the right thing to do.
Opponents bring out doomsday scenarios, whether it is urban fraud, or splinter parties, or other wild-eyed suggestions about things that will happen under popular vote. But if those things could happen, they are already happening. Look at the largest direct election in the country, the election for Governor of the state of California. If there is voter fraud, Republicans at the state party need to do something about that, not whine that it might hurt the election of the President. Do you think that the Democrats aren’t turning out every single possible Democrat in LA and San Francisco already? Ask Meg Whitman, then ask the party leaders who are complaining that National Popular Vote will turn out even more (which I don’t think is even possible) why they won’t work harder to turn out more Republicans? Perhaps, if a presidential candidate thinks that giving money to the state party will turn out more Republicans, these guys will get more for GOTV, and we might win more legislative seats, or more congressional seats. Who knows? Maybe, if we change the system we have right now, we might actually revive our dying party. One thing is for sure, it can’t get any worse, and if we keep the current system, it won’t get any better. We can’t keep doing what we are doing, and expect to get something different.
I think it is a good thing for that a candidate have to campaign for every vote in every state, an outcome that National Popular Vote will guarantee. We can debate whether another system might have a better outcome, but what is indisputable is that the current system leaves Californians, and most Americans, on the sidelines of a presidential election. That is not the fault of the candidates, they are just campaigning by the rules as they are written. Changing the rules changes the incentives, and it is a great incentive for candidates to campaign everywhere if every vote counts in their election. The popular vote system works for every office in every state. There is no reason why it won’t work for President.