The Bill To Move the Country Toward Direct Presidential Elections: Why California's Governor Schwarzenegger, And Other Governors, Should Sign It

By VIKRAM AMAR

Friday, Sep. 29, 2006

A few weeks back, the California legislature gave final approval to a bill (AB 2948) -- now sitting on Governor Schwarzenegger's desk -- that would begin to move the country towards a direct popular election for President. The proposal is currently being advanced in a number of other states, as well.

The bill would create an "interstate compact" that would require each signatory state to cast its electoral college votes not for the candidate who happened to win a plurality of popular votes in that state, but rather for the candidate who won the most popular votes nationally. The compact's drafters believe that it would have to be approved by Congress before becoming valid. Also, by its own terms, the compact would not go into effect until enough states to comprise a majority of the electoral college had ratified it.

Governor Schwarzenegger has until September 30 to return the bill, else it becomes law in California. As of this writing, the Governor had not indicated his intentions either way.

I urge the Governor to sign this measure - for reasons I will explain.

The Case for Direct Presidential Elections

My brother Akhil Reed Amar and I advanced an idea similar to AB 2948 in a column for this site back in 2001. The experiment we suggested then was one of the (many) things on which the organizers of the current reform effort -- most prominently a group called National Popular Vote, Inc., whose advisory committee includes former U.S. Senators John Anderson, Birch Bayh and Jake Garn - relied in crafting the present proposal.

(One of the ways in which the suggestion my brother and I advanced differs from the current legislation, however, concerns the formality of the interstate compact; we argued that States could pledge their electoral votes to the national popular vote winner conditional upon other states doing so without entering into a formal "compact" that would necessarily require Congressional approval.)

The reasons Akhil and I strongly favor a move to direct presidential elections - and away from the current electoral college system -- are discussed at length in the three-part series of columns, of which that prior column is Part Three. (Click here to read Part One and Part Two). But briefly, the electoral college was never well justified by principled reasons, but rather was one of the many crass compromises early generations of Americans struck largely to guarantee national union and avoid regional conflicts between North and South over the treatment of blacks and slavery. Modern justifications for the current system, we explained, fare not much better. As a matter of basic logic and fairness, insofar as the President is supposed to represent all Americans equally, every American voter should have an equal say in who occupies the White House.

Why Opponents' Election Fraud Concern Is Unpersuasive

In the remainder of this column, I'll briefly address a few of the arguments opponents of AB 2948 have advanced over the past month.

One set of opposition arguments was collected and presented by former Delaware Governor Pete du Pont in the Op Ed section of the Wall Street Journal. Governor du Pont contended that the national popular vote proposal would, among other things, increase election-fraud concerns, remarking that: "[i]n the 2000 Bush-Gore race, Mr. Gore's 540,000 [national] vote margin amounted to 3.1 votes in each of the country's 175,000 precincts. 'Finding' three votes per precinct in urban areas is not a difficult thing. . . ."

That may be true. But the risk of fabricating votes would not be any greater under a national vote winner approach than under the current system. Indeed, under the current system, a razor-thin electoral college margin may create an increased incentive to manipulate vote counts in a few key, closely contested states, even when there is a clear (even overwhelming) national popular winner.

To prevent fraud, we should have uniform national standards for counting and recounting votes - whether we remain under the deeply flawed electoral college system, or move to direct election. But fraud prevention concerns provide no reason for opposing that move.

Why Opponents' Campaign-Narrowing Concern Is Unpersuasive

A second objection Governor du Pont raised is that "direct election of Presidents would lead to geographically narrower campaigns." The idea is that the current electoral college system prevents purely regional candidates from winning, by requiring the victor to put together a continental coalition popular in many different regions.

If this were true, it would be hard to understand how Lincoln won the electoral college without winning a single Southern state. The elections of 1796 and 1800 also featured sharp sectional divisions between North and South. Moreover, if geographic spread were a good argument for a continental electoral college, it should also be a good argument for an intrastate electoral college for gubernatorial elections in vast states like California and Texas. Yet virtually no one would favor that idea.

Why Opponents' "End of the Two-Party System" Argument Is Unpersuasive

Governor du Pont also claims that "direct election would lead to a multicandidate, multiparty system instead of the two-party system we have." Again, this tired argument simply won't wash.

If an electoral college model were needed to maintain the two-party system, why is it that third-party candidates for governor, even in huge states like California and Texas, almost never win? Moreover, a low-plurality winner in a three- or four-way race for President is possible even with the current electoral college system (which has also attracted its fair share of spoilers, such as Ross Perot and Ralph Nader.)

Moreover, concerns over third-party prominence could easily be addressed in a direct national presidential election. The remedy would be to use a system called single-transferable voting (STV), in which voters list their second and third choices on the ballot - in effect combining a first heat and runoff elections into a single "instant runoff" transaction. (Akhil and I discussed STV's virtues at length in a 2002 column.)

Opponents' Counter-Suggestion of Rejiggering the Electoral College Is Unpersuasive

A final argument against AB 2948, raised by commentator Joel Hirschorn, is that even if one embraced the idea of a national Presidential election, a better approach would be to encourage each state to apportion its electoral college votes along the lines of the popular vote count in the state. (In the current, dominant winner-take-all model, the winner of a state takes all of that state's electoral votes, even if his victory was only by a tiny margin.)

Hirschorn's counter-suggestion, however, would essentially require all 50 states to sign on board to become effective. If any states were to continue to adhere to the current winner-take-all approach, then other states could not reasonably be expected to adopt a self-harming proportional approach. And this kind of prisoner's dilemma often proves an intractable obstacle to action.

By contrast, under AB 2948, as long as enough states to comprise a majority of the electoral college are on board - and that could be as few as 11 states, given the population of the country's largest states - then the reform effort would be successful, regardless of whether some (many) other states held out.

In short, AB 2948 is a terrific idea - and none of the arguments against it hold water. (There are a few others, but they have already been discussed and addressed by many writers.) I hope Governor Schwarzenegger sees that when he acts on the measure sitting on his desk.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. 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 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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