The state Senate may be clueless about how to fix New York’s fiscal mess, but it’s absolutely confident that it knows how to reform the nation’s electoral system. It just endorsed the so-called National Popular Vote plan, which would radically alter the nation’s presidential election system without bothering to amend the Constitution. The Assembly and the governor should kill this scheme.
The idea is to prevent a repeat of the 2000 election, when Al Gore won the popular vote but George W. Bush won the electoral vote and the presidency. Sounds reasonable — but this “solution” would only bring greater chaos.
The plan creates an interstate compact in which signatory states agree in advance to pledge all of their electoral votes to the presidential candidate who leads in the national popular vote. This way, figure the law professors who contrived this scheme, the “reform” circumvents the Constitution’s amending process: Once states with an aggregate majority of electoral votes sign the compact, no constitutional amendment would be necessary.
The professors believe this can withstand legal challenge — but what they’ve given us is a recipe for a countrywide legal circus. If they get their way, any close presidential contest will leave the nation up to its neck in political controversy and constitutional lawsuits.
Major procedural change like this is never neutral in its effects — it always creates winners and losers. And it almost always produces important unintended consequences — because the real world rarely works out exactly as professors (or anyone else) expect.
Think about it: Suppose a majority of New Yorkers vote in 2012 to re-elect Barack Obama, only to discover that their state’s 31 electoral votes have been awarded to the Republican, who happened to win more popular votes than Obama nationwide. (In 2004, for example, President Bush failed to carry New York but beat John Kerry nationwide by more than 3 million votes.)
Suppose further that, in response to the inevitable public outcry, New York’s legislators or election officials seek to withdraw from the interstate compact and appoint a new set of electors committed to Obama. The professors insist their compact prevents that — but few politicians will bow to some academic legal theory when so much is at stake politically.
And if New York’s electoral votes determined the national outcome, don’t suppose the GOP candidate would stand idly by while state officials sought to reverse their compact commitment.
Lawyers’ briefs would fly like cannon shot at Waterloo — not only in New York but throughout the nation, as politicians in various states tried to anticipate or reacted to steps being taken by politicians elsewhere. Every state where the vote was close, and thus had the potential to change the presidential outcome, would see angry demonstrations, allegations of fraud and demands for recounts that would make Florida in 2000 look like a picnic.
By the way, who gets to decide all of these legal and factual issues — elected state officials, state courts, federal courts or Congress? Again, the professors claim to have all the answers, trotting out the finest academic theories on why their compact wouldn’t require congressional approval. But whether the decision-makers they’re trying to cut out of the loop will buy it is another matter altogether.
As a practical political matter, how likely are Congress and the Supreme Court to sit on the sidelines while the 11 largest states (which are all it would take to reach 270 electoral votes) bypass the amendment process and alter the way we elect presidents?
While this reform purports to create greater democratic certainty in presidential elections, it would in fact give us electoral and political Russian roulette. The Constitution is not some legal plaything for academic theorists to toy with. Our current electoral system isn’t perfect, but with very few exceptions it avoids or isolates nasty election disputes; and, again with rare exceptions, it gives us presidents whose legitimacy is recognized by all save bitter partisans.
In a nation of our size and almost staggering diversity, these are no small accomplishments. The National Popular Vote scheme will almost certainly give us something far worse.
Michael M. Uhlmann teaches American gov ernment at Claremont Graduate University.