LWVUS has asked us to have a consensus meeting on the issue of electing the President through a popular vote.  Please join us for this interesting and important discussion that goes to the heart of our democracy and the reason for the League. 

Because there are many considerations, I urge you to read the following background material so you can come to the meeting ready to make a contribution. 

Selection of the President

A League study of the presidential electoral process culminated in its 1970 position supporting direct election of the President by popular vote as an essential element of representative government. At the 2002 Convention, the League expanded its position, and in 2008, the delegates voted to adopt a new study, "The Advisability of Using the National Popular Vote Compact among the States as a Method for Electing the President."

The League’s Position

The League of Women Voters of the United States believes that the direct-popular-vote method for electing the President and Vice-President is essential to representative government. The League of Women Voters believes, therefore, that the Electoral College should be abolished. The League also supports uniform voting qualifications and procedures for presidential elections. The League supports changes in the presidential election system – from the candidate selection process to the general election. We support efforts to provide voters with sufficient information about candidates and their positions, public policy issues and the selection process itself. The League supports action to ensure that the media, political parties, candidates, and all levels of government achieve these goals and provide that information.

Explanation of the Position

The League strongly believes that the Electoral College should be abolished and not merely "reformed." One "reform" which the League specifically rejects is the voting by electors based on proportional representation in lieu of the present "winner-takes-all" method. Such a system would apportion the electoral votes of a state based on the popular vote in that state. Instead of making the Electoral College more representative, such proportional voting would increase the chance that no candidate would receive a majority in the Electoral College, thereby sending the election of the President to the House of Representatives where each state, regardless of population, would receive only one vote. Election of the President by the House further removes the decision from the people and is contrary to the "one person, one vote" principle. The League also does not support reform of the Electoral College on a state-by-state basis because the League believes there should be uniformity across the nation in the systems used to elect the President.

The Electoral College - A Review

Although the LWVUS has specifically adopted a position calling for the abolition of the Electoral College, a short review of the mechanics of that system of Selection of the President is helpful to an understanding of the National Popular Vote Compact.

The Electoral College is a process established by the founding fathers as a compromise between election of the President by Congress and election by popular vote. In short, the people of the United States who then vote for the President and Vice President.

Each state is entitled to a number of presidential electors equal to its total representation in the House and Senate. The District of Columbia is awarded a number of electors equal to that of the least populous state.  

The founding fathers designed this constitutional plan to promote several principles they considered important. One goal was to ensure that smaller states had a role in the election of the President. Secondly, the emphasis on the power of the state as contrasted to the power of the individual voter fostered the principles of federalism which are the core of the governmental process. Finally, the use of electors rather than popular vote assuaged concerns that the electorate was not competent or knowledgeable enough to be entrusted with the direct election of important government officials, such as the President and Vice President.

The electors are selected, according to the Constitution, in the "manner" designated by the state's "legislature" (the Congress in the case of the District).  At present, the "manner" chosen by every state is by popular election. Most of the states (and the District of Columbia) use a winner-take-all system, in which the candidate who receives a majority of the vote, or a plurality of the popular vote (less than 50 percent but more than any other candidate) takes all of the State's electoral votes. In Maine and Nebraska, the winner of the popular vote in each congressional district wins an elector, and the remaining two electors are chosen based on the statewide vote.

On Election Day, the voters cast their ballots for electors, even though the names of the candidates for President and Vice President are often the names shown on the ballot. Each state’s electors meet forty days after Election Day, and the formal balloting for president takes place at those meetings.

Many different proposals to alter the presidential election process by amending the Constitution, including direct nation-wide election by the people, have been offered over the years. None have been passed by Congress and sent to the States for ratification. Under the most common method for amending the Constitution, an amendment must be proposed by a two-thirds majority in both houses of Congress and ratified by three-fourths of the states.

The Movement against the Electoral College
The most compelling argument against the Electoral College is that it prevents the direct election of the President by popular vote and is, therefore, contrary to modern principles of representative government. Studies show that more than 70 percent of American citizens favor the election of the President by popular vote.

Beyond this basic theoretical objection is the very practical objection that the Electoral College system enables candidates who have not received the most votes cast by American voters to become President.

We have seen such an outcome four times in our history. The first time was the 1824 election which was won by John Q. Adams even though he received fewer electoral votes and fewer popular votes than Andrew Jackson.  In 1876, Rutherford B. Hayes beat Samuel J. Tilden by one electoral vote, becoming President despite trailing in the popular vote.  In 1888, Benjamin Harrison beat Grover Cleveland in the  electoral vote,  despite Cleveland’s popular vote margin.  In the 2000 presidential election, George W. Bush received fewer popular votes than Albert Gore, Jr., but received a majority of electoral votes. The situation was almost reversed in 2004. Although President Bush received more than three million more popular votes than John Kerry, Kerry would have been elected President if Ohio’s electoral votes had been cast in his favor.

These circumstances have prompted much discussion on the advisability and feasibility of reforming our election process to eliminate the Electoral College and to elect the President by direct election. This conversation is not new. Over the past 200 years, according to the National Archives, more than 700 proposals have been introduced in Congress to reform or eliminate the Electoral College.   Against this background comes the National Popular Vote Compact Proposal (NPV).

The National Popular Vote Compact Proposal

The National Popular Vote Compact proposal offers a method of achieving the result of election of the President by popular vote without amending the Constitution to eliminate the Electoral College. Instead, this method uses the mechanism of the Electoral College to ensure that the candidate who receives the most popular votes is elected President of the United States.

Under the proposed legislation to enact the National Popular Vote Compact, all of the state’s electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538)

The NPV Compact proposal is predicated upon the portion of the United States Constitution which states:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…" (Article II, Section 1, Clause 2) (emphasis added)

The constitutional wording, "as the Legislature thereof may direct," contains no restriction on the states’ exercise of their power with respect to their electors. The U.S. Supreme Court has repeatedly supported the states right to decide how to select their electors and award their electoral votes. Thus, proponents of the NPV Compact claim that the U.S. Constitution need not be changed in order to implement nationwide NPV. Rather, they maintain, this change can be accomplished in the same way that the current system evolved—namely, the states will use their exclusive and plenary power to decide the manner of awarding their electoral votes.

An additional constitutional underpinning of the NPV is the Compact Clause (Article I, Section 10, Clause 3), which permits states to enter into legally enforceable contractual obligations to undertake agreed joint action with other states. Interstate compacts are typically used to address problems that concern more than one state—the states which are affected enter into a compact (contract) which regulates their actions, ensuring uniform response by the states to address their mutual concerns. These contracts are typically enacted through the passage of identical legislation by the compacting states.

Under the state legislation proposed to establish the NPV, the popular vote counts from all 50 states and the District of Columbia would be added together to obtain a national grand total for each presidential candidate. Then, state elections officials in all states participating in the plan would award their electoral votes to the presidential candidate who receives the largest number of popular votes in all 50 states and the District of Columbia. The NPV Compact plan would take effect only when it has been enacted by states collectively possessing a majority of the electoral votes. The 270-vote threshold also corresponds essentially to states representing a majority of the people of the United States. As a result, every vote in all 50 states and the District of Columbia would be equally important in presidential elections.

The compact contains a six-month blackout period, (July 20 of each presidential election year through the January 20 inauguration), during which no state can withdraw from the compact. It is settled compact law and settled constitutional law that withdrawal restrictions—very common in interstate compacts—are enforceable because the U.S. Constitution prohibits a state from impairing any obligation of contract.

The legislation contains other procedural provisions that would ensure the smooth functioning of the agreement. For example, one clause addresses the possibility of a tie in the national popular vote.  If there is no national popular vote winner, each state chooses the electors for the candidate who has won that state. 

Another clause addresses circumstances in which the winner of the national popular vote might be prevented from receiving the electoral votes from a member state. For example, it is possible that the winner of the national popular vote fails to appear as a candidate in a particular state and, therefore, there are no appropriate electors for the state to certify. To address that situation and five other situations identified by the drafters of the legislation as possible anomalies in the process they have developed, a mechanism is provided whereby the desired result is obtained by allowing the presidential candidate who has received the largest number of votes in the national election to select the electors in the state in which no electors associated with the winning slate have been elected. The full text of the compact is available at www.lwv.org.

Current Status of the National Popular Vote Compact

Since passage of the National Popular Vote Compact is accomplished on a state-by-state basis, its status is fluid. As of September 1, 2008, the legislation necessary to activate the compact has been signed into law in four states: Maryland, New Jersey, Hawaii and Illinois, for a total of 50 of the 270 electoral votes required to activate the NPV Compact. NPV Compact bills have been introduced in 15 other states, where some have passed committee and others have passed one house.

ARGUMENTS IN FAVOR OF THE NPVC

Two major initiatives of the League were discussed at our March meeting: State redistricting reform and our support of a national cap and auction system to address global climate change. 

Redistricting Reform in Texas

For some years the Texas League has supported reform of the system used to create voting districts. Redistricting has been growing in importance as a political problem. In Texas and many other states, the major stumbling blocks to establishing an independent, nonpolitical process are the members of the state legislatures who are reluctant to give up their traditional hold on drawing new district boundaries.

Voting districts are supposed to be drawn so that the votes of all citizens are of equal importance.  After every census, the legislature is required to make any changes in voting districts needed to reflect changes in the population.  Ideally, districts have equal or nearly equal populations, they are drawn in a manner that does not have the effect of denying or abridging the right to vote on the basis of race or language group, and counties are preserved within one district if possible.

However, because redistricting is in the hands of politicians, our elected officials are picking their constituents, rather than the other way around. If the majority party draws the districts, they are most likely to draw them to protect their party’s power and to reduce the power of the minority party. Consequently, redistricting has evolved into an electoral instrument that serves to protect and strengthen the incumbency advantage, therefore disempowering voters and undermining democratic accountability and making it difficult for parties to work together for the good of the state. It is easy for all concerned to look both foolish and vindictive.

This is the year we need to establish an independent commission so that we will have new procedures in place before the next census.  

Senator Jeff Wentworth has submitted a bill calling for a Redistricting Commission to draw the district lines of the U.S. House of Representatives. The Wentworth plan calls for a Commission of eight voting members – four Republicans and four Democrats, all chosen by members of the Texas Legislature. None would hold or be running for a political position. This group would select a chair to preside, but never have a vote. Such a structure would force fair and principled redistricting plans, since the process would never be controlled by one party.  Each of us needs to write or call our elected officials, right away, in support of this legislation.

Addressing Global Climate Change on the National Level

LWV-US is urging all members to contact our federal representatives in support of legislation that would create a cap-and-auction, or cap-and-trade system, to address pollution levels.  Members need to contact our Senators and Representative right away in support of this idea.  If a cap and auction bill is not passed in this session, it will probably not be addressed for another year.  Our window of opportunity to avert the worst effects of global climate change is closing fast.  Please act now.

Cap and auction (cap and trade) refers to the establishment of a national emissions cap that would limit and reduce overall greenhouse gas emissions in a certain set of economic sectors, such as energy and mining.  A cap would be put on total emissions and individual producers would have to purchase, at auction, the right to emit pollution.  Individual emissions permits could be traded amongst emitters: If one polluter was producing more than allowed to meet the cap, it could purchase additional “credits” from another entity that was not polluting as much as allowed.  In theory, the additional cost of those credits would motivate the polluter to innovate a way to meet the lower requirements, driving new technology.  Periodically, the overall cap would be lowered somewhat, so that we would eventually return to emissions levels of twenty years ago.

The design of a cap and auction program is critical to its chances of success. Right now the carbon industries are lobbying to get a cap and trade deal that would give away carbon permits free of charge to existing polluters, which would bribe the sluggish to do nothing, and slow down innovation.  All allowances should be auctioned for the public good, not to generate windfall profits for polluting industries.  Also, the initial cap must be low enough to encourage meaningful change.

Revenue raised by permit auctions should be used to promote a clean energy future by investing in the highest-value solutions for emissions reductions first.  Auction revenues should also be used to protect low- and moderate-income citizens from rising energy costs and other negative economic impacts, create new jobs, ensure fair treatment for affected workers and their communities, and drive technology transfer to help achieve emissions reductions around the world.

Success will also depend on a careful inventory of present pollution levels and accurate measurement of reductions.  Enforcement of the rules is essential.  Polluters must be strictly held to both short and long-term goals and there must be no loopholes that allow continued releases while making claims of reductions.

For complete success in a global climate change mitigation plan, any cap and auction program should be carried out in conjunction with the establishment of regulatory programs in three areas: a renewable electricity standard, a utility energy efficiency standard, and increased fuel economy standards.