Getting Around The Constitution

Some like to use the Court System.  Some like to use creative Congressional Legislation.  Some even like to use Executive Orders.

Others seek a coalition of states to enact laws to just circumvent the Constitutional system.

Today we look at a bill before the Iowa General Assembly (House version, Senate version).  This same bill has already been enacted into law in Maryland and New Jersey.  It is still in the “Study Bill” state (in a committee for review), and will essentially cause Iowa to select Electors based on the National Popular Vote results instead of Iowa’s Popular Vote results.  Once enough states opt into this coalition to cover 270 electoral votes (the number of votes currently needed to win the Presidency), the law would go into effect.  In case it’s not obvious, the point is to make the College meaningless.

I am very concerned about this bill. I’ll start by saying I support the Electoral College structure that we have in place today to mange the electing of the President, and although I could use this space to explain my support for it, my concern with the bill is not in the value of the College, but rather in the Compact that this bill places Iowa in.

This bill, in concert with the same language in other states’ codes, is intended to provide a means to circumvent the Constitution of the Unites States. I consider that a serious matter. Despite the fact that each state has the right to select its electors for President by whatever means it deems appropriate, this is a creative way to achieve a populist agenda that should be given the due course of debate at a national level and resolved by changing the Constitution as it is intended to be managed.

Further, this bill will hurt Iowans in the following ways:

  1. Iowa, along with the other states that are agreeing to this compact, will become at odds with the Federal Government. Circumventing the Constitution is serious business. Congress will, of course, take notice and somehow act. Congress may act in a way that penalizes the states that participate in this Compact.
  2. If this is passed, I am confident that Iowa will lose its first-in-the-nation caucus status. Both parties will abandon Iowa as due to the negative impact we are supporting against national party politics.
  3. Iowa will lose its voice in the national debate. Becoming part of this Compact will mean that no matter how Iowans vote, it will be the national voice that we speak, not our own.
  4. The loss of Iowa’s relevance will mean that candidates will no longer bother coming to Iowa. They will focus on the urban centers such as the Northeast, Chicago, the West Cost, and Texas. Agrarian states will get no attention.

Other problems with this bill include the fact that this course of action may, ironically, be executable without the favor of a majority of American Citizens. Only required is that the legislatures of enough states to acquire a majority of the Electors approve this measure. Regardless of the polling on this issue, it deserves to be debated and decided by all Americans.

Once this Compact is enacted, the Electoral College will become irrelevant. Congress will be forced to act. It could take the course of withdrawing the Electoral College, which is what the Compact supporters desire more than anything. Again, I will refrain from speaking to that issue at this time.

Or, Congress may decide to take other action to abolish the Compact. It may determine that it will have to define how electors are selected. I don’t think we want that.

We are currently suffering from a series of attacks on the Constitution. Plans nationally to enact the “Fairness Doctrine”, the recently approved Stimulus Package, discussions around nationalizing the banking system, plans to further limit religious expression and the holding of firearms, and the repeated use of the court system to decide the things that we should be deciding in the halls of our legislative bodies are all slowly eating away at the foundation of our law.

Even if this is the direction that Iowans and Americans really want to go, it concerns me that such a dramatic change could be thrust into the heart of our country while we are trying so desperately to recover from economic challenges and a significant shift in popular thinking… this decision, this idea needs more time and more debate.

If you live in Iowa, please contact your State House Representative and Senator.  At the this links you’ll find email, phone numbers, and home addresses.  I would urge you to send an email right away, and perhaps follow up with a phone call.

Since this topic has both Iowa and National impacts, it is being posted on both The Conservative Reader and The Conservative Reader: Iowa.

About the Author

Mr. Smith is the Publisher of The Conservative Reader. He is Partner/Owner of Ambrosia Web Technology as well as a Systems Architect for Wells Fargo. Art hold a degree in Computer Science from Drake University in Des Moines, Iowa, and is a political blogger at the Des Moines Register. Art's views are purely his own and do not necessarily reflect the views of Wells Fargo.

 

RSS Feed for This Post9 Comment(s)

  1. susan | Feb 16, 2009 at 1:46 pm | Reply

    The major shortcoming of the current system of electing the President is that presidential candidates concentrate their attention on a handful of closely divided “battleground” states. 98% of the 2008 campaign events involving a presidential or vice-presidential candidate occurred in just 15 closely divided “battleground” states. Over half (57%) of the events were in just four states (Ohio, Florida, Pennsylvania and Virginia). Similarly, 98% of ad spending took place in these 15 “battleground” states. Similarly, in 2004, candidates concentrated over two-thirds of their money and campaign visits in five states and over 99% of their money in 16 states. Two-thirds of the states and people have been merely spectators to the presidential elections. Candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the voter concerns in states where they are safely ahead or hopelessly behind. The reason for this is the winner-take-all rule enacted by 48 states, under which all of a state’s electoral votes are awarded to the candidate who gets the most votes in each separate state.

    Another shortcoming of the current system is that a candidate can win the Presidency without winning the most popular votes nationwide. This has occurred in one of every 14 presidential elections.

    In the past six decades, there have been six presidential elections in which a shift of a relatively small number of votes in one or two states would have elected (and, of course, in 2000, did elect) a presidential candidate who lost the popular vote nationwide.

  2. susan | Feb 16, 2009 at 1:46 pm | Reply

    The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).

    Every vote would be politically relevant and equal in presidential elections.

    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). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).

    The Constitution gives every state the power to allocate its electoral votes for president, as well as to change state law on how those votes are awarded.

    The bill is currently endorsed by 1,246 state legislators — 460 sponsors (in 48 states) and an additional 786 legislators who have cast recorded votes in favor of the bill.

    The National Popular Vote bill has been endorsed by the New York Times, Chicago Sun-Times, Minneapolis Star-Tribune, Los Angeles Times, Boston Globe, Hartford Courant, Miami Herald, Sarasota Herald Tribune, Sacramento Bee, The Tennessean, Fayetteville Observer, Anderson Herald Bulletin, Wichita Falls Times, The Columbian, and other newspapers. The bill has been endorsed by Common Cause, Fair Vote, and numerous other organizations.

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. This national result is similar to recent polls in Arkansas (80%), California (70%), Colorado (68%), Connecticut (73%), Delaware (75%), Kentucky (80%), Maine (71%), Massachusetts (73%), Michigan (73%), Mississippi (77%), Missouri (70%), New Hampshire (69%), Nebraska (74%), Nevada (72%), New Mexico (76%), New York (79%), North Carolina (74%), Ohio (70%), Pennsylvania (78%), Rhode Island (74%), Vermont (75%), Virginia (74%), Washington (77%), and Wisconsin (71%).

    The National Popular Vote bill has passed 22 state legislative chambers, including one house in Arkansas, Colorado, Maine, Michigan, North Carolina, and Washington, and both houses in California, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, and Vermont. The bill has been enacted by Hawaii, Illinois, New Jersey, and Maryland. These four states possess 50 electoral votes — 19% of the 270 necessary to bring the law into effect.

    See http://www.NationalPopularVote.com

  3. susan | Feb 16, 2009 at 1:47 pm | Reply

    The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law. The U.S. Constitution gives “exclusive” and “plenary” control to the states over the appointment of presidential electors.

    Historically, virtually all of the previous major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation’s first election in 1789. However, nowadays, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.

    In 1789, only 3 states used the winner-take-all rule (awarding all of a state’s electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all rule is now currently used by 48 of the 50 states.

    In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

    In 1789, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state .

    The normal process of effecting change in the method of electing the President is specified the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.

    What the current U.S. Constitution says is “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

  4. susan | Feb 16, 2009 at 1:47 pm | Reply

    The 11 most populous states contain 56% of the population of the United States and that a candidate would win the Presidency if 100% of the voters in these 11 states voted for one candidate. However, if anyone is concerned about the this theoretical possibility, it should be pointed out that, under the current system, a candidate could win the Presidency by winning a mere 51% of the vote in these same 11 states — that is, a mere 26% of the nation’s votes.

    Of course, the political reality is that the 11 largest states rarely act in concert on any political question. In terms of recent presidential elections, the 11 largest states include five “red” states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.

    Moreover, the notion that any candidate could win 100% of the vote in one group of states and 0% in another group of states is far-fetched. Indeed, among the 11 most populous states, the highest levels of popular support were found in the following seven non-battleground states:
    ● Texas (62% Republican),
    ● New York (59% Democratic),
    ● Georgia (58% Republican),
    ● North Carolina (56% Republican),
    ● Illinois (55% Democratic),
    ● California (55% Democratic), and
    ● New Jersey (53% Democratic).

    In addition, the margins generated by the nation’s largest states are hardly overwhelming in relation to the 122,000,000 votes cast nationally. Among the 11 most populous states, the highest margins were the following seven non-battleground states:
    ● Texas — 1,691,267 Republican
    ● New York — 1,192,436 Democratic
    ● Georgia — 544,634 Republican
    ● North Carolina — 426,778 Republican
    ● Illinois — 513,342 Democratic
    ● California — 1,023,560 Democratic
    ● New Jersey — 211,826 Democratic

    To put these numbers in perspective, Oklahoma (7 electoral votes) alone generated a margin of 455,000 votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 votes for Bush in 2004.

  5. susan | Feb 16, 2009 at 1:48 pm | Reply

    When presidential candidates campaign to win the electoral votes of closely divided battleground states, such as in Ohio and Florida, the big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami certainly did not receive all the attention or control the outcome in Ohio and Florida in 2000 and 2004.

    Under a national popular vote, every vote is equally important politically. There is nothing special about a vote cast in a big city. When every vote is equal, candidates of both parties know that they must seek out voters in small, medium, and large towns throughout the state in order to win the state. A vote cast in a big city is no more valuable than a vote cast in a small town or rural area.

    Another way to look at this is that there are approximately 300 million Americans. The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities is only 19% of the population of the United States. Even if one makes the far-fetched assumption that a candidate won 100% of the votes in the nation’s top five cities, he would only have won 6% of the national vote.

    Further evidence of the way a nationwide presidential campaign would be run comes from the way that national advertisers conduct nationwide sales campaigns. National advertisers seek out customers in small, medium, and large towns of every small, medium, and large state. National advertisers do not advertise only in big cities. Instead, they go after every single possible customer, regardless of where the customer is located. National advertisers do not write off Indiana or Illinois merely because their competitor has an 8% lead in sales in those states. And, a national advertiser with an 8%-edge over its competitor does not stop trying to make additional sales in Indiana or Illinois merely because they are in the lead.

  6. susan | Feb 16, 2009 at 1:49 pm | Reply

    Keep in mind that the main media at the moment, namely TV, costs much more per impression in big cities than in smaller towns and rural area. So, if you just looked at TV, candidates get more bang for the buck in smaller towns and rural areas.

    For example, in California, candidates for governor or U.S. Senate don’t campaign just in Los Angeles and San Francisco, and those places don’t control the outcome (otherwise California wouldn’t have recently had Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger). A vote in a rural county is just an important as a vote in Los Angeles.

    If the National Popular Vote bill were to become law, it would not change the need for candidates to build a winning coalition across demographics. Any candidate who yielded, for example, the 21% of Americans who live in rural areas in favor of a “big city” approach would not likely win the national popular vote. Candidates would still have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as voters in Ohio.

  7. Art Smith | Feb 16, 2009 at 5:53 pm | Reply

    Susan: Thank you for the excellent information about the National Popular Vote effort. It is very helpful, and I hope people will read it and work at forming their opinions with this information in mind.

    The core issue here is that the Founders never intended for the States to provide a solution to determining electors based on anything foriegn to the desires of the individual States.

    Making the Compact appear to be about promoting the rights and desires of the individual States is spurious at best. The goal of this process is clearly, as supported by the length and breadth of your argument, to create a world where there either is no Electoral College, or where it is rendered irrelevant. Please don’t insult my intelligence or that of our readers by stating otherwise.

    To thrust the National Popular Vote into the Electoral College system is just as valuable to me as flipping a coin… it hands the individual States’ rights over to others. Even if that were truly the will of the people of Iowa, it should be debated publicly and at length before making such a dramatic change, and would be, again, more appropriately settled by abolishing the College through a Constitutional Amendment instead of manipulating it.

  8. susan | Feb 24, 2009 at 12:54 pm | Reply

    75% OF IOWA VOTERS FAVOR A NATIONAL POPULAR VOTE FOR PRESIDENT

    A survey of 800 Iowa voters showed 75% overall support for a national popular vote for President. The question was “How do you think we should elect the President when we vote in the November general election: should it be the candidate who gets the most votes in all 50 states, or the current electoral college system?

    By political affiliation, support for a national popular vote for President was 82% among Democrats, 63% among Republicans, and 77% among others.

    By age, support was 76% among 18-29 year olds, 65% among 30-45 year olds, 76% among 46-65 year olds, and 80% for those older than 65.

    By gender, support was 82% among women and 67% among men.

    By race, support was 75% among whites (representing 93% of respondents), 65% among African Americans (representing 2% of respondents), 86% among Hispanics (representing 1% of respondents), and 58% among others (representing 4% of respondents).

    The survey was conducted on February 17-18, 2009, by Public Policy Polling.

    see http://www.NationalPopularVote.com

  9. Steve from Wisconsin | Aug 1, 2010 at 10:47 pm | Reply

    Mr. Smith: You are very kind and courteous to be so gentle in responding to Susan, given her absurd efforts to te the discussion with 7 long and very tedious posts! The reality is this: If the opponents of the Electoral College system wish to pursue a Constitutional amendment for a national popular vote approach, then they can take their best shot. In the meantime, to try to tell voters of one state that their votes simply don’t count is completely indefensible! And looking at those states that have approved this measure, could one guess that there is a lot of partisanship behind this proposal?

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