Saturday, June 11, 2011

Delaware is reforming the electoral college

HB 55  passed by the Delaware House recently and now being considered by the Delaware Senate is the National Popular Vote bill which would guarantee the presidency to the presidential candidate who receives the most popular votes in all 50 states (and the District of Columbia). The law would not go into effect until a majority of states (270 electoral votes) in the electoral college have enacted it into law.   In effect, this bill would provide a mechanism for the direct election of the president.



        Commentators have long predicted serious consequences to problem elections in the Electoral College.  These problems have spurred the proposal of many constitutional amendments in the Congress over the decades.  The problem of rogue electors bolting their pledges and choosing another presidential candidate has existed but has never been a real problem.    This bill would also prevent the debacle of the national popular vote winner who does not become president.   This actually happened in 1824, 1876, 1888 and 2000. 



        It was argued on the State House floor that Delaware’s electors would have more clout and some even argued less clout as a result of HB 55.   Which would be true?



 Historically, the Electoral College has given a bias to small states because all states regardless of how small received at least three electoral votes.  How that  bias plays out in the political science literature is not entirely clear.   In fact,  some have argued that it does both, but a note in the Havard Law Review in 2001 indicates that it gives more influence to small states but at the same time the winner take all effect wipes out the advantage.



John Banzshef, a law professor at George Washington Law School, concluded in 1966 that a New York voter had 3.312 times the voting power of a voter in Delaware and argued that the winner take all system in the electoral college denied its citizens equal protection. 



Would this bill make it more likely that presidential candidates would come to Delaware to campaign?   Campaigning is about distributing scarce resources in the most effective way possible.  Presidential campaign strategies will still be about what states will have a tendency to flip.   Delaware can safely be predicted to go Democratic in a presidential election and unlikely to draw a presidential campaign trip.

A national popular majority result might force the candidates to create a national coalition strategy rather than state by state coalitions dictated by the electoral college.



Are there any constitutional issues raised by HB 55?  It seems anomalous that a national popular majority could redirect the electoral vote to another candidate in those states which have agreed to this compact.   Given the fact that different voting weights are derived from the size of the state within the electoral college, an equal protection argument might be made that a voter’s voting weight would be lost when the state appointed its electors to support the national popular majority.     The Supreme Court, however, failed to give recognition to this argument in Delaware v. New York (1966)



There is also the question whether congressional consent required by the Constitution for interstate compacts would be necessary.  I doubt that Congress would approve it because Republicans control the House and would be against it because they might view this compact as a loss of electoral power from the smaller electoral vote states which they now control. However, Republicans in the New York State Senate did approve of this bill. 



        I believe that the objective of this bill to abolish the winner take all system in the elector college has important merit.  It remains whether the public will buy it.   Another advantage of this bill is it avoids the debacle of Election 2000 where Florida’s  electoral votes were in doubt and forced this nation into a constitutional crisis.  Anytime one avoids a constitutional crisis, it all can’t be that bad.





Perry J. Mitchell is a retired political scientist living in Ocean View. He has given lectures on the electoral college to Jefferson Meetings on the Constitution and at public libraries. Write Perry Mitchell at  pmtichell@mchsi.com