[EL] Two thoughts on the Electoral College and National Popular Vote

[Scarberry, Mark]

There was no anticipation that the electors as a whole would debate who should be president. If I remember correctly, the requirement in Art. II, sec. 1, cl. 2 (now 12th Am.) & cl. 3 that electors meet in their own states all on the same day was designed to prevent them from colluding (a.k.a. debating together) with respect to who should be elected president. Debate among electors from the same state, yes; national debate among electors, no.

Mark

Mark S. Scarberry
Pepperdine Univ. School of Law
Malibu, CA 90263
(310)506-4667

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Jack Cushman
Sent: Tuesday, November 27, 2012 11:24 AM
To: Sean Parnell
Cc: law-election at UCI.EDU
Subject: Re: [EL] Two thoughts on the Electoral College and National Popular Vote

On Tue, Nov 27, 2012 at 11:51 AM, Sean Parnell <sean at impactpolicymanagement.com<mailto:sean at impactpolicymanagement.com>> wrote:
1.       Apparently only 17 states have completed their count of all ballots, per this USA Today editorial (as a rule, I abhor citing editorials, but I'm going to trust they got this fact right): http://usatoday.com/story/opinion/2012/11/26/counting-votes-voting-system/1728529/ I think the implications for National Popular Vote are pretty obvious - had this been a closer election (say, Bush-Gore or Kennedy-Nixon close) we'd still not know who the president was, and there would be horrific legal battles being waged right now all across the country over which ballots should or should not be counted. The Electoral College seems to have provided conclusive clarity rather quickly.

But the states this year have no particular reason to hurry in certifying their results. And in 2000 the election wasn't decided until December 12, over two weeks from now. I don't see why we couldn't resolve the legal challenges, run the recounts, and certify an official national popular vote in a close election at least as quickly as the Electoral College was decided in 2000. These are problems that are resolved in parallel, not consecutively -- why should other states take longer than Florida did?

The certified totals might ultimately prove to be incorrect, as they were in Florida in 2000. But as 2000 shows<http://en.wikipedia.org/wiki/United_States_presidential_election,_2000#Post_recount>, the Electoral College can't save us from simply certifying the wrong winner. If we don't like slow, uncertain, inaccurate elections, the solution is to adopt national standards for modern, reliable voting processes. We're a wealthy technological nation, and it's an eminently solvable problem.

But set that aside for a minute. The more important point is that it's better to have horrific legal battles and democracy than no horrific legal battles and no democracy. Because you know what's easier to run than a democracy? Any other system of government. "Easy" isn't what democracy is about.

Counting every vote is a difficult logistical problem. The Electoral College eases the vote counting process by ensuring that 3/4 of states -- and their voters -- are essentially irrelevant to the election; care and attention can then be focused on the minority of voters with the lion's share of voting power. That's the core of this kind of practical objection to the National Popular Vote: it's too much of a hassle to accurately count my vote in Massachusetts or Tara's vote in Texas, so we should avoid that necessity by giving Sean 44 times<http://fivethirtyeight.blogs.nytimes.com/> as important a vote in Virginia, and focus on counting his.

But that's not who we are, and it's not what the Electoral College is for. It began as a means for state legislatures to select representatives to debate and choose a President -- a republican strand of our democratic republic. It lingers, zombie-like, to capriciously reallocate voting power from some voters to others in a popular election. It's not a structural choice; there is no rhyme or reason to the states it chooses to favor. It gives us the questionable benefit of ignoring the shoddiness of the voting systems in many parts of our country, but it cuts against a principle we have consistently sacrificed for: when a group of citizens select one among us to be our leader, each of us is entitled to an equal vote.

It would be great (for so many reasons) if we could first build an effective, reliable voting system, and then adopt an equal vote. But that's never been how things go. First you win the right to vote, and only then -- if then -- do they build the voting booths. Better long lines than no lines at all.

Best,
Jack

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