Key Question for the Presidential Candidates: Would They Support Replacing the Electoral College with a National Popular Vote System?

By VIKRAM DAVID AMAR

Friday, Feb. 15, 2008

In my column a few weeks ago, I provided an update on an important nationwide movement to reform the way the country picks its President - the so-called National Popular Vote plan. In December, New Jersey joined Maryland in committing to the plan.

Under the plan, as few as 11 states, acting in concert, could guarantee that the candidate who wins the nationwide popular vote becomes President, regardless of who has more support in the Electoral College. A participating State can help accomplish this feat by pledging to deliver its electoral votes to the winner of the national popular vote (assuming enough other states have pledged to do the same), regardless of which candidate received the most votes in that particular state. Including Maryland's 10 electoral college votes, there are now 27 such votes pledged to the plan.

As I also mentioned, the plan seems to have some political traction in a number of other states too, including some large states like Illinois (and perhaps California). But although these developments are exciting (for those of us who think the plan is a good idea), they are still rather preliminary: Certainly, the National Popular Vote plan will not take effect this year, and may well not come about even by 2012.

Because of the uncertainty about the plan's fate and timing, in today's column I want to remind readers that when my brother, Akhil Amar, and I wrote about and proposed a version of the National Popular Vote plan in 2001, we suggested there might be an even more streamlined way to effectively move the country along the path to a nationwide direct popular election.

Perhaps, we should ask the leading presidential contenders in 2008 (Senators McCain, Obama and Clinton) very soon about their views of the Electoral College. In this column, I'll explain why I think that is an important and relevant question to pose.

Why We Should Ask the Candidates About Their Electoral College Views

After election 2000, it is no longer purely theoretical to worry about Electoral College misfires of various sorts. Thus, a direct question about the legitimacy of the Electoral College is one of many questions on which the candidates should be queried by, for instance, Jim Lehrer on the "News Hour," or Tim Russert on "Face the Nation," or by questioners at a debate.

If the candidates (or any of them) believe in the legitimacy of the College, they should be prepared to give their reasons. (As Akhil and I have written, we think the reasons advanced, both originally and in modern times, to support the College are unconvincing.) If candidates seek to duck the question about the wrongness of a person who has lost the national popular vote still becoming president as overly hypothetical and unlikely to occur again, they should be pressed further.

And, importantly, if they express disapproval of the system, and profess allegiance to the principle of one person, one vote, then they should be asked to act on their principles - to bring about the most profound and fundamental "change" of which candidates are always talking. For although they may not fully appreciate it, the two major presidential standardbearers and their two running mates have it within their power to move us to direct national election.

How the Candidates Themselves Could Ensure the Popular-Vote Winner Wins the Election

In particular, each candidate could pledge that, if s/he loses the national popular vote, s/he will ask those electors who have pledged for her/him to vote for the national popular vote winner. Having taken this pledge, the candidate could then challenge his/her rival to take a similar pledge. Each candidate could likewise insist that his/her Vice Presidential running mate take the pledge. (The presidential candidates could even use this as one of the criteria in picking their running mates.)

Each candidates' loyal pledged electors throughout the country would most likely honor their respective candidates' wishes when the electoral collegians meet to cast their votes. However, even if they did not (since, technically, the electoral collegians are likely "free agents" who can vote however they want), each candidate and running mate could take a further pledge to resign immediately after Inauguration in favor of the national popular vote winner.

Indeed, the candidates themselves can effectively implement their own pledges (without relying on the electoral collegians) through the mechanisms of the Twenty-Fifth Amendment, a change in the Constitution in the 1960s which allows a President to fill a vacant vice presidency. For instance, imagine that candidate A won the electoral college but lost the national popular vote. On Inauguration Day, A's Vice Presidential running mate could resign immediately. Candidate A could then name his/her election rival, Candidate B, as the new Vice President under the 25th Amendment, and upon B's pro-forma confirmation by Congress--s/he is, after all, the man or woman with the mandate in our hypothetical--A would step down in favor of B.

As Akhil and I pointed out, this scenario, which seems odd, is far from without precedent. In 1974, Vice President Spiro Agnew resigned, and then was replaced by Gerald Ford, who in turn became President upon President Richard Nixon's resignation.

Some may point out that given the Electoral College rules currently in place, it would be unfair for candidates to have to ignore the Electoral College map after they've already deployed general election resources assuming the Electoral College system will be applied as it currently exists. For this reason, the kinds of questions and promises I hypothesize here need to be posed and made before the general election campaign kicks into gear. Certainly, by the time of the national nominating conventions, and perhaps before then if things on the Democratic side shake out earlier, the kinds of conversations I have described here will, as lawyers like to say, be very ripe.


Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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