Evan Bayh: Abolish the Electoral College

I'm not a big Evan Bayh fan, but I'm excited he supports abolishing the Electoral College (via Drudge):

Q: "Why do you think we should abolish the Electoral College?"

BAYH: "I think our president should be chosen by the majority of the American people. That is ordinarily the case. But in 2000, as we all recall, we elected this president with fewer votes than the other candidate got. I just don't think in the modern era that is appropriate."

The problem, of course, is that passing a Constitutional amendment to abolish the Electoral College would be almost impossible. Hendrik Hertzberg recently promoted an interesting alternative being proposed by a group called National Popular Vote -- an inter-state pact to award electors to the winner of the popular vote:

Here’s how the plan would work. One by one, legislature by legislature, state law by state law, individual states would pledge themselves to an interstate compact under which they would agree to award their electoral votes to the nationwide winner of the popular vote. The compact would take effect only when enough states had joined it to elect a President—that is, enough to cast a majority of the five hundred and thirty-eight electoral votes. (Theoretically, as few as eleven states could do the trick.) And then, presto! All of a sudden, the people of all fifty states plus the District of Columbia are empowered to elect their President the same way they elect their governors, mayors, senators, and congressmen..

There is very little doubt about the constitutional and legal feasibility of this plan. The power of state legislatures to direct the choice of their states’ electors, the Supreme Court has repeatedly ruled, is essentially unlimited.

The idea is creative, but I'm sure legislators in individual states would try to break out of the compact to swing the outcome of the election. So here's a question for the lawyers out there: Can states irrevocably bind their hands in an interstate compact? National Popular Vote says yes:

The proposed compact has a “blackout” period (of approximately six months) on withdrawals. This “blackout” period starts on July 20 of a presidential election year and continues until a President or Vice President are qualified to serve the next term (normally on January 20 of the following year).

The purpose for the delay in the effective date of a withdrawal is to ensure that a withdrawal will not be undertaken—perhaps for partisan political purposes—in the midst of a presidential campaign or, even more egregiously, in the period between the popular voting in early November and the meeting of the Electoral College in mid-December.

An interstate compact has the specific advantage of making the obligations of the participating states into a legally enforceable contractual obligation. Of course, legal enforceability is most relevant in the event that the winner of the nationwide popular vote did not carry states having a majority of the electoral votes (as occurred, say, in 1824, 1876, 1892, and 2000). A state whose legislature and governor are controlled by a political party whose presidential candidate who did not win the nationwide popular vote could, in the absence of an enforceable restriction on withdrawal, abandon its obligations at the precise moment when they would matter. However, once a state enters into an interstate compact, a state is prevented from unilaterally nullifying the compact because the impairments clause of the U.S. Constitution. The impairment clause provides that “No State shall … pass any … Law impairing the Obligation of Contracts.” Instead, a party to a contract (i.e., an interstate compact) must withdraw from the agreement in accordance with the agreement’s provisions for withdrawal. Most interstate compacts contain provisions that delay the effective date of a state’s withdrawal by a certain amount of time that is appropriate given the nature of the compact. The proposed compact limits withdrawal during the sensitive six-month time window of the presidential election period.

The six-month “blackout” period covers the following six important events relating to presidential elections: (1) the national nominating conventions, (2) the fall general election campaign period, (3) election day on the Tuesday after the first Monday in November, (4) the meeting of the Electoral College on the first Monday after the second Wednesday in December, (5) the counting of the electoral votes by Congress on January 6, and (6) the scheduled inauguration of the President and Vice President for the new term on January 20

If the lawyers buy this, I'm all for it.

(PS Bayh's father, Birch Bayh, is a member of the advisory committee of National Popular Vote.)

Comments

[Seth Kramer]

What about a large number of parties? I would prefer plurality rather than majority as a standard.

[troopman04]

If they did away with the electoral college, candidates would no longer care about the needs of smaller, more ailing states or regions. They wouldn't campaign in small towns, or media markets. The name of the game would be to spend as much money as they could in large cities.

Living in a democratic republic, the POTUS needs to attempt to curry favor of as many of the united states as he can, and not just turn it into the shoddy way state politics work.

Most of the time, the person with the most votes does win.

[Michael Young]

Brendan quoted NPV as saying:
> The power of state legislatures to direct the choice of their
> states’ electors, the Supreme Court has repeatedly ruled, is
> essentially unlimited.

Nonsense. The "one man, one vote" principle puts some pretty serious
limits on what legislatures can do. I wouldn't so quickly dismiss the
Court's willingness to consider whether giving non-residents equal
weight passes muster.

Given their wildly partisan meritless ruling in Bush v. Gore, it's
also not clear that the majority would resist making a decision here
on less than principled grounds.

I'm not saying that I think that they *would* strike it down, but
it's foolish to claim that "There is very little doubt about the
constitutional and legal feasibility of this plan."