How a few Albany Democrats are wrecking Electoral College reform
One effect of the Electoral College. cbsnews.com
2:00 pm Feb. 18, 20132
Three years ago, New York's state legislature tried to change the way presidential elections work.
Tired of seeing New York ignored by the presidential candidates, and tired of seeing their voices drowned out by a growing Democratic majority, Republicans in the State Senate joined with some process-minded Democrats to pass a bill that would bind the state's electors to whichever candidate wins the national popular vote.
The bill, sponsored by Sen. Joe Griffo, a Republican who represents a rural district upstate, was identical to legislation already passed in eight states and the District of Columbia, which joins the participants together in an experimental interstate compact that would effectively eliminate the Electoral College and fundamentally re-shape the modern campaign.
Technically, states can't simply eliminate the Electoral College. But in practice they can see to it that the current, anachronistic system stops mattering.
The states in the compact, which include nearby New Jersey and vote-rich California, have each agreed to award their electors to whoever wins the national popular vote, with the change taking effect as enough states sign on to make up the 270 electoral votes to decide an election.
"I think every state should be relevant," said Griffo, who recently re-introduced his bill.
Only ten states received official campaign visits from either of the candidates during the crucial closing months of last year's campaign, and New York's 19 million people were not among the blessed.
When Hurricane Sandy leveled the coasts of New York and New Jersey one week before the November elections, President Obama took a few hours out of campaigning to survey the damage, and Mitt Romney held a perfunctory canned food drive before a rally in Kettering, Ohio.
New York City-based donors give hundreds of millions of dollars to presidential campaigns, to be spent almost entirely in other states. Upstate gets ignored almost entirely. (It was a fairly big deal when Newt Gingrich visited Buffalo during the primary.)
New York's 29 electoral votes would constitute a big prize for the compact, pushing its total to 161 electors, and it could have an even bigger impact than that.
"It's a state where things do get noticed and a state where action is finally happening," said Rob Richie, the executive director of FairVote, a voting rights group that supports the national popular vote.
Part of the problem, Richie said, is that while the movement is popular in theory it has never felt urgent, exactly. The last time it was seriously debated on the national stage was in the 1960s, after George Wallace's third-party candidacy threatened to upend a national election by denying either party a majority of electoral votes.
Support for the idea peaked in 1968, when 80 percent of Americans told Gallup they would prefer the national popular vote, and it has hovered at 60 percent for the past decade.
In New York, the idea polled at 79 percent in 2008, and Griffo's bill passed the Senate overwhelmingly in 2010 and again in 2011, by votes of 52-7 and 47-13, respectively.
Good government groups like Common Cause support it, as does the New York Times editorial board.
But despite the bipartisan support in the Senate, it's never come up for a vote in the Democratic-controlled Assembly, even when the bill had more than 80 co-sponsors, which constitutes a majority in the 150-person chamber.
"There have been a few people who are vocally opposed to it, and hopefully I'll change their minds," said Assemblyman Jeffrey Dinowitz, a Bronx Democrat who has sponsored the bill in the lower chamber.
Assembly Speaker Sheldon Silver had suggested last year that he personally supports the bill, but that he wasn't comfortable bringing it to a vote if a majority of his Democratic caucus didn't support it. Now he's back to being officially ambivalent.
"There are issues within the conference with this proposal and the Speaker has not expressed a position," said Michael Whyland, a spokesman for Silver, in an email.
Two Democrats, Denny Farrell and Joe Morelle, have been fingered as the quiet culprits of the bill, and each holds considerable sway within the conference. Farrell chairs the Ways and Means Committee, and Morelle just ascended to the Majority Leader post this month. Neither Farrell nor Morelle returned a call for comment.
IN MOST OF THE COUNTRY, THE PARTISANSHIP CUTS THE OTHER way.
"Sometimes I get asked the question, aren't you just a bunch of bitter Democrats who can't get over 2000?" said Barry Fadem, the president of National Popular Vote, an organization dedicated to advancing the compact, which is bankrolled in part by (former) Buffalo billionaire Tom Golisano.
And while National Popular Vote is itself nonpartisan, all of the states that have joined the compact so far tend to lean Democratic: Vermont, Maryland, Washington, Illinois, New Jersey, Massachusetts, Hawaii, California, and the District of Columbia.
It's not clear why Democrats should be more supportive of the change, which Fadem said would not necessarily benefit one party or the other. Republicans have lost the national popular vote in the last two elections, but George W. Bush beat John Kerry by three million votes in 2004, so it's not like the G.O.P.'s disadvantage is a permanent condition.
In fact, no one knows how the change would play out and the only obviously disadvantaged groups would be the campaign professionals who have spent their careers dissecting a small set of swing states. The change would be something like telling N.F.L. coaches that the Super Bowl would now be determined by the team with the most yardage.
But national Republicans have made it a plank of their party platform to oppose the compact, calling it a "scheme to abolish or distort the procedures of the Electoral College."
"We recognize that an unconstitutional effort to impose 'national popular vote' would be a mortal threat to our federal system and a guarantee of corruption as every ballot box in every state would become a chance to steal the presidency," the platform reads.
Some Republican-controlled legislatures recently floated the idea of allocating votes by congressional district, in order to guarantee their future presidential candidates a few votes from rural districts. That idea drew support from the national party, but, after a flurry of mixed press, most states seem to have abandoned those efforts.
Griffo told me he would be open to such a congressional system in New York, but that he still favors the popular vote, though he thinks his bill may have lost some support from previous years.
"It's going to be more challenging in the Senate now," he told me last month, before he had officially re-introduced the bill. "Now various groups are weighing in and trying to change people's minds."
The main groups, said Griffo, were political parties, who weren't sure whether they'd be handing an advantage to their opponents.
Dinowitz re-introduced his bill in the Assembly earlier this month, with 74 other co-sponsors, giving them exactly half the chamber.
"I believe that if it ever comes to a floor vote in the Assembly, it would pass with significant bipartisan support," he said in an interview last month.
One way to advance that possibility would be to recruit the support of Gov. Andrew Cuomo, who has made it a hallmark of his tenure to coax popular legislation through over the concerns of the chambers' leaders.
Cuomo has made campaign finance the centerpiece of his electoral reforms, and no one is quite sure where the governor stands on a national popular vote.
"I don't know where the governor is on it," said Griffo. "I think he's been pretty mum on it."
A spokesman for Cuomo did not return requests asking his position on the national popular vote bill.
Advocating for the popular vote would put Cuomo in the same category with some other self-styled progressives.
"I've seen Martin O'Malley sign it," said Richie, the FairVote director, who is based in Maryland, "so Andrew Cuomo has fallen behind."
The bill would help NY Republicans as the party's Presidential candidate may actually campaign and spend money in the state. The demographics/voter registration stats in upstate, Long Island and the Northern Suburbs are not favorable for Republicans and they need an actual campaign in key areas to motivate Republicans to vote. The loss of the state senate and four congressional seats (2 incumbents and 2 challengers) can be tied to losing close contests that may have turned with some support at the top of the ticket.
This idea is an affront to Federalism and is blatantly unconstitutional. Regardless of your views about the Electoral College, this is a change that must be done as an amendment to the US Constitution, and then ratified by the states. The US Constitution clearly states in Article 1, Section 10, "No State shall, without the Consent of Congress . . . enter into any Agreement or Compact with another State." Because the NPV compact contains an agreement among the participating states that it will only takes effect after other states agree to act together and produce the necessary 270 electoral votes, this is clearly States entering into an agreement with other States. This unambiguous phrase in the Constitution is intended to prevent exactly what this proposal seeks, States deciding amongst themselves to subvert the Constitution and do whatever they want because they don't like a decision or policy of the Federal government. In fact, an entire war was fought over the idea that States do not have the right to avoid federal policies that they don't like, and thankfully federalism, and not states' rights triumphed. Being able to limit a campaign to the largest and most populated states might be convenient, but it is the inconvenience of having to appeal to the small states as well as the large states, that has helped the United States to endure.
While the right of "Each State [to] appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .," found in Article 2, Section 1 of the Constitution is without question an expansive right that allows for a wide variety of methods of appointing electors, it is not without limits imposed by the nature of federalism. Like it or not, the states must still work within a federal system, and the only way to change this federal system is through a Federal Constitutional amendment. The states are no more free to say that they will award their electors based on the national popular vote than they are to say that they will award their electors based on the votes of only white voters. The Founding Fathers never prohibited or prescribed a method of apportioning electors within a state because they felt that the states knew how to best represent the needs and interests of their citizens, not because they wanted the states to have the power to destroy federalism itself. Everyone agrees that the States are limited by “the Equal Protection clause of the 14th Amendment, the 15th Amendment (outlawing the denial of vote based on race, color, or previous condition of servitude), the 20th Amendment (women’s suffrage), the 24th Amendment (outlawing poll taxes), and the 26th Amendment (18-year-old vote),” but somehow it is believed that States are not limited by the overall structure of federalism itself?
Form can’t trump substance, and a system intended to destroy the federalist system cannot be legitimized by claiming each state did it under its own authority. Bringing up property rights, sex, race, or anything else as a former qualifier for having your vote count, or the current basis by which any particular state apportions ITS OWN electors based on the vote WITHIN THE STATE ignores or misses the point that the entire basis of federalism is that each state represents itself as part of the larger union, and that the Founding Fathers absolutely intended to create a federalist system of indirect elections. Stating that the Founding Fathers didn't prescribe any particular method of awarding electors, we don't need winner take all, the most common original method of having the legislature appoint electors was undemocratic by modern standards, or any other critique, misses the point. The entire point of federalism is that all votes for members of the House count (roughly) equally, but that votes for members of the Senate or for President do not. There are many valid critiques of the current system, and I am not sure that I wouldn’t support the overall goal of the NPV movement, but to say that the states can subvert the entire structure of shaping the federal government without an amendment to the federal constitution is both wrong and a path to tyranny.