The Case Against “The National Popular Vote”

The National Popular Vote Agreement will likely be proposed again, in 2009, in the Connecticut Legislature. Recently the Secretary of the State expressed her support for a constitutional amendment for the popular election of the President.  Update 05/13:  <squeaks by the CT House>

We understand the appeal of the popular election of the President. However, CTVotersCount is conditionally opposed to the popular election of the President, in any form, unless and until there are uniform election laws, enforceable, and enforced nationwide.

We have two basic reasons for opposing the popular vote, at this time, in any form:

  • The franchise is not uniform from state to state: One man one vote and one woman one vote is a fiction. Different states enfranchise different groups of citizens directly by different requirements to register to vote and indirectly by making voting more or less convenient for different groups. Clearly, uniform enfranchisement is a prerequisite to a fair popular vote.
  • We cannot trust reported results. Reported popular vote totals are a fiction: There have been many instances of vote counting errors and fraud in several states. Even in Connecticut, in the November 2008 election, without exhaustive research, several errors have been uncovered in the vote totals reported, and presumably certified, on the Secretary of the State’s web site. None of these errors were significant even though the numbers may have amounted to several thousand votes for individual candidates. However, in a close Presidential election every aspect of every state’s counting process could change the result. A prerequisite for a real national popular vote is uniform, sufficient, effective, enforceable, and enforced national voting integrity standards.

The above concerns apply to the popular vote in any form. There is a third reason for opposing the National Popular Vote Agreement:

  • The Agreement is likely to result in Presidential Elections being decided by the Supreme Court: Some constitutional lawyers believe that the Agreement is unconstitutional – even if it is constitutional, it will end up in court. The Agreement requires our Secretary of the State to certify our electoral votes based on the questionable results of other states – we could sue our Secretary in state and federal court – we could sue the Secretaries of other states in state and federal court – citizens of other states could sue Connecticut. The only remaining option would be for the Supreme Court to decide.

Here is an updated version on an op-ed we wrote two years ago, when the Agreement was proposed in Connecticut.

The Case Against “The Agreement Among The States
to Elect The President by National Popular Vote”

The Titanic sank not just because it hit an iceberg. It sank because too many of its compartments were flooded. If the integrity of a hull is breeched, if the damage can be sufficiently contained to a few compartments, a ship will not sink. The Electoral College performs the same function as ship compartments for our democracy. If the integrity of an election is breeched, then if the damage can be sufficiently contained to a few states, the democratic process will prevail.

This year “The Agreement Among The States to Elect The President by National Popular Vote” has been proposed in the vast majority of states. Replacing the Electoral College sounds appealing. It was intended to protect the smaller states from domination by the larger states, while protecting wealthy landowners from uninformed, uneducated people. Today, the Electoral College protects us from our faulty and fragmented voting system.

Implementing a national popular vote would put at risk the integrity of the entire election process. If the votes of all the states were accumulated, errors, voter suppression, disenfranchisement, or fraud in any and every state count toward the popular vote. This would increase the potential impact of errors and the incentives for suppression, disenfranchisement, and fraud. Defying logic proponents of the Agreement simply claim the opposite effect. Its chief proponent, Senator Birch Bayh, claims benefits of fraud would be limited because “Under a direct popular vote system, one fraudulent vote wins one vote in the return. In the electoral college system, one fraudulent vote could mean 45 electoral votes”. In reality under the popular vote, one vote could take all 538 electoral votes.

Many researchers including the Carter/Baker Commission, Common Cause, The Secretary of State of California, and the Brennan Center for Justice have documented serious problems with our election systems. Reform bills have been introduced in Congress. These reforms include uniform national standards for poll worker training, enforcement, voter registration, paper ballots, provisional ballots, and ending conflicts of interest in election administration. Voter suppression and fraud have been documented in press reports, books, and the Conyers Report by Representative John Conyers, Jr. and The House Judiciary Committee Democratic Staff.

The ideal of a precise popular vote count is far from the reality of the current system of rushed tallying of the vote to produce a winner on election night, followed by pressures to justify the initial count to avoid a time consuming, frequently embarrassing series of recounts. The 2000 Supreme Court decision, Gore v. Bush, stated “The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer”. In 2006, in Sarasota, Florida 18,000 votes were lost forever and never counted in heavily Democratic districts, resulting in the contested election of a Republican congresswoman by less than 400 votes. Recently, in Ohio two election officials were convicted of rigging a partial recount. In Connecticut in 2006, in the 2nd CD re-canvass, the margin changed from 167 to 91. In 2008 in Connecticut there were several reporting errors discovered in the originally reported results posted on the Secretary of the State’s web site. Review of thousands of actual votes in Ohio has demonstrated that votes were deliberately changed in several counties in 2004 using a variety of methods. In Alabama, votes were deliberately changed to defeat the sitting Governor, Don Siegleman.

Direct election of the President would magnify errors and distort voter eligibility differences among the states, while offering an open invitation to voter suppression and fraud that will lead directly to voter disenfranchisement and cynicism. We can also expect an unending series of court challenges of vote counts and the Agreement, in almost every state, in every presidential election, leading to a tradition of the Supreme Court deciding the President.

Electing the President by popular vote sounds truly democratic and fair. Yet, until we have uniform standards for voting, effective independent enforcement, and can suppress our obsession for immediate results, the national popular vote is a certain a disaster for our democracy, like an oil tanker without compartments heading toward an iceberg.

We do not take this stand lightly. The National Popular Vote Agreement has been endorsed by several legislators in Connecticut, The Hartford Courant, and some national good government groups. <National Popular Vote web>

*****
Update: Secretary of the State, Bysiewicz: For the Popular Vote. Against the Compact. Says it will increase inner city vote. <read> We don’t agree with all her logic: In Connecticut few inner city voters go to the polls even when there are hotly contested Mayoral or Senate primaries and elections.

Update: Minnesota Secretary of State, Mark Ritchie also opposes the National Popular Vote <read>

*****
Update:
Cross posted on MyLeftNutmeg. Comments there are worth reading: http://www.myleftnutmeg.com/showDiary.do?diaryId=10856 (on MyLeftNutmeg, I am BlastFromGlast)

Update: Article questioning the purported failure of the Electral College in the 1800′s <read>

Update: Washington Post, Dec 18, 2000: Public Backs Uniform U.S. Voting Rules; Poll Finds Wide Support For Guidelines on Ballots, Closing Times, Recounts.

Most voters agree it’s a mess, and 61 percent said they want the federal government to clean it up. Barely a third said they wanted to allow local and state governments to continue to set election law

Nearly nine in 10 want a federal rule that requires all jurisdictions in the country to use one kind of voting machine…

About six in 10 Americans say they want to amend the U.S. Constitution to select the president by direct popular vote and do away with the electoral college...\

Q: Do you think voting rules in presidential elections should continue to be set individually by states and counties, or should the federal government establish voting rules for all states and counties?

The federal government should establish voting rules 61%

Of course we would be the last to say that HAVA was a good example of meeting the voters’ requests for uniformity.  But we can conclude that the public does want uniform Federal rules for Presidential elections as much as it would like the popular vote – pretty close to what we would like to see, sufficient, uniform, enforceable, and enforced eleciton laws nationwide as a prerequisite to considering a Constitutional Amendment.

8 responses to “The Case Against “The National Popular Vote””

  1. The BRAD BLOG : 'Daily Voting News' For November 29 and 30, 2008

    [...] National: The Case Against “The National Popular Vote” http://www.ctvoterscount.org/?p=1045 [...]

  2. CTVotersCount.org » Blog Archive » The Case Against “The National … at Voter Fraud On Best Political Blogs

    [...] CTVotersCount.org » Blog Archive » The Case Against “The National … Implementing a national popular vote would put at risk the integrity of the entire election process. If the votes of all the states were accumulated, errors, voter suppression, disenfranchisement, or fraud in any and every state count … [...]

  3. mvymvy

    The Equal Protection Clause of the 14th Amendment says:
    “no state [shall] deny to any person within its jurisdiction the equal protection of the laws” [Emphasis added]

    It has been argued by some that it is not permissible, under the Equal Protection clause, for some states to close their polls at 6 PM while others close at 9 PM ; for some states to conduct their election entirely by mail while other states conduct their (non-absentee) voting at the polls; and for some states to permit violent felons to vote while others prohibit it (absent a pardon). However, the U.S. Constitution does not require that the election laws of all 50 states are identical in virtually every respect. The Equal Protection Clause of the 14th Amendment only restricts a given state in the manner it treats persons “within its jurisdiction.” The Equal Protection Clause imposes no obligation on a given state concerning a “person” in another state who is not “within its [the first state's] jurisdiction.” State election laws are not identical now nor is there anything in the National Popular Vote compact that would force them to become identical. Indeed, the U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers and the U.S. Constitution permits states to conduct elections in varied ways.

    The National Popular Vote bill does not violate the Equal Protection Clause of the 14th Amendment.

  4. mvymvy

    Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the “canvas”) in what is called a “Certificate of Ascertainment.” You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site at http://www.archives.gov/federal-register/electoral-college/2004/certificates_of_ascertainment.html

  5. mvymvy

    The people vote for President now in all 50 states and have done so in most states for 200 years.

    So, the issue raised by the National Popular Vote legislation is not about whether there will be “mob rule” in presidential elections, but whether the “mob” in a handful of closely divided battleground states, such as Florida, get disproportionate attention from presidential candidates, while the “mobs” of the vast majority of states are ignored. In 2004, candidates spent over two thirds of their visits and two-thirds of their money in just 6 states and 99% of their money in just 16 states, while ignoring the rest of the country.

    The current system does NOT provide some kind of check on the “mobs.” There have been 22,000 electoral votes cast since presidential elections became competitive (in 1796), and only 10 have been cast for someone other than the candidate nominated by the elector’s own political party. The electors are dedicated party activists who meet briefly in mid-December to cast their totally predictable votes in accordance with their pre-announced pledges.

  6. mvymvy

    The potential for political fraud and mischief is not uniquely associated with either the current system or a national popular vote. In fact, the current system magnifies the incentive for fraud and mischief in closely divided battleground states because all of a state’s electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state.

    Under the current system, the national outcome can be affected by mischief in one of the closely divided battleground states (e.g., by overzealously or selectively purging voter rolls or by placing insufficient or defective voting equipment into the other party’s precincts). The accidental use of the butterfly ballot by a Democratic election official in one county in Florida cost Gore an estimated 6,000 votes ― far more than the 537 popular votes that Gore needed to carry Florida and win the White House. However, even an accident involving 6,000 votes would have been a mere footnote if a nationwide count were used (where Gore’s margin was 537,179). In the 7,645 statewide elections during the 26-year period from 1980 to 2006, the average change in the 23 recounts was a mere 274 votes.

  7. US Election On Best Political Blogs » Blog Archive » CTVotersCount.org » Blog Archive » The Case Against “The National …

    [...] CTVotersCount.org » Blog Archive » The Case Against “The National … Today, the Electoral College protects us from our faulty and fragmented voting system. Implementing a national popular vote would put at risk the integrity of the entire election process. If the votes of all the states were accumulated, … [...]

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