Preserve the Constitution

In the current political environment of sharp partisan division, it should be no surprise that both political parties want to leave no stone unturned in trying to win the biggest political prize in 2012, the presidency.

Pennsylvania's Republican legislature and governor plan to change the allocation of Pennsylvania's 20 electoral votes from the traditional popular vote winner-takes-all method. The Republicans propose to instead allocate one electoral vote to the popular vote winner in each of Pennsylvania's 18 congressional districts, with only two electoral votes allocated according to the statewide popular vote. Under this plan, even if President Obama wins statewide in Pennsylvania, as he did in 2008, as many as 12 electoral votes are expected to go to the Republican candidate, with the president carrying only six congressional districts plus the two at-large electoral votes. The candidate who wins the state could easily lose the majority of the state's electoral vote. And this plan may be enacted in other swing states which, like Pennsylvania, voted for President Obama in 2008, but now have Republican legislatures and governors elected in 2010, including Ohio, Wisconsin, Michigan, and Florida.

Tuesday in Harrisburg, a state Senate committee is scheduled to hear testimony about the Republican plan. Democrats have been trying to oppose the plan by noting that it would convert Pennsylvania from a targeted swing state to a collection of mostly safe congressional districts to be divided between the political parties. Presidential candidates could more usefully spend their time pursuing larger clumps of electoral votes in other states that retain the traditional winner-take-all method. And Pennsylvania would lose the financial windfall that flows from being a targeted swing state, the candidate campaign road shows, the media coverage, the television advertising.

The Republican plan appears to be legal and permissible under the Constitution. Nebraska and Maine use similar plans already, though both are small states so that the statewide popular vote winner could not lose a majority of the electoral votes as in a large state such as Pennsylvania, Ohio, Wisconsin, Michigan, or Florida.

I would argue that the Republican plan is simply wrong to allocate electoral votes by arbitrarily gerrymandered congressional districts, the borders of which change after every national census. Most citizens identify more with their states, the borders of which are permanent and unchanging, than they do with their politically designed congressional districts. Allocating electoral votes by state is a clearer and more understandable expression of popular will.

Similarly, the Democrats are misguided in their attempt to enact the National Popular Vote Initiative, which would attempt to choose the president by popular vote rather than the electoral college specified in the Constitution. So far only eight blue states and the District of Columbia, with 132 electoral votes have ratified the interstate compact to cast their votes for the national popular vote winner. The compact will not come into effect until states commanding at least 270 electoral votes, a majority of the electoral college, ratify the compact.

This effort is misguided for at least three reasons. First, it's a betrayal of the "Great Compromise," which persuaded the original states to ratify the new Constitution. Membership in one house of the Congress would not be determined by population. And presidents would not be elected by popular vote, but by an electoral college with votes allocated among states not entirely by population.

To recognize the importance of the "Great Compromise," but then to circumvent it and try to convert the electoral college to simply mirror the popular vote is at best bad faith, and especially so since the Constitution itself provides a mechanism for amendment, which the proponents of the National Popular Vote Initiative choose to ignore.

Second, if the popular vote should be close, as many expect it will be in 2012, if the National Popular Vote Initiative were in effect, legal battles over counting votes could erupt in many or even all states where any ballots could be contested to alter the outcome of the national popular vote. Such multistate vote-counting battles could make the 2000 Florida vote count look placid in comparison. Protracted legal battles could leave the United States without a president.

Finally, because of the hard edge of partisan politics today, states which ratify the National Popular Vote Initiative may have second thoughts if they see that their ratification causes the election of a president their own voters oppose. States may be tempted to try to withdraw from the interstate compact before the meeting of the electoral college, or may give their electors different instructions, or otherwise seek an electoral result different from that which would be dictated by the interstate compact. Litigation Armageddon could result.

I would prefer to see both political parties abandon their efforts to change how the electoral college votes. The traditional constitutional role of states in the election of presidents should be preserved. This can best be done by maintaining the practice in all states but two of allocating all of each state's electoral votes for the candidate who wins the popular vote in that state.

What will be the value of a political victory if in the process the republic is lost?