Popular Vote or Through The Current Electoral College System

By Bob Katzen

A big topic of discussion last week in the Bay State and across the nation was whether the president of the United States should be elected by popular vote or through the current Electoral College system. Last week, U.S. Rep. Charlie Rangel (D-NY) and U.S. Sen. Barbara Boxer (D-CA) proposed constitutional amendments in Congress that would abolish the Electoral College.
   The president and vice president are not actually elected directly by the voters but rather by “electors” who are elected by popular vote from each state. There are 538 electors with each state assigned electoral votes equal to the number of its members of Congress. The 538 electors, correspond to the 435 representatives, the 100 senators, plus three electors for the District of Columbia. Electors are chosen by political parties and pledge to vote for the winner of the state’s popular vote. The candidate who wins 270 or more electoral votes wins the presidency.
   Current results from this year give Donald Trump 290 electoral votes and Hillary Clinton 232. Michigan has not yet completed its tally so it is not certain where those 16 electoral votes will go. In the popular vote, although official results have not been announced, Clinton by most counts seems to be ahead of Trump at this point by anywhere from 1.5 to 2.5 million votes.
   One of the key roadblocks to abolishing the Electoral College is that it would require a constitutional amendment that is either proposed by two-thirds of each house of Congress or by a constitutional convention that would be called if 34 states requested it. In both cases, the proposed amendment would then have to be ratified by 38 states to become part of the Constitution. Both avenues are difficult, at best. 
   Along comes Fair Vote, a group with the goal of electing the president by popular vote without abolishing the Electoral College but rather by creation of an unusual pact between the states.
   The Bay State in 2010 joined this pact — the Agreement among the States to Elect the President by National Popular Vote. It would require states that join the pact to cast all their electoral votes for the presidential candidate who wins a majority of the national popular vote in all 50 states and the District of Columbia. The pact would become effective when states representing at least 270 electoral votes — a majority of the 538-vote Electoral College — join the pact. It is an attempt at an end-run around the Constitution.  
   The House 114-35 and the Senate 28-9, approved the measure in July 2010 and it was signed into law in August 2010 by former Gov. Deval Patrick.


   Every four years there is talk nationally about abolishing the Electoral College and electing the president based on the national popular vote. The talk intensifies each time a candidate who wins the popular vote loses the election. This has occurred five times in history — the most two recent being this year and in 2000 when Al Gore won 543,895 more popular votes than George W. Bush but was beaten by Bush in the Electoral College by a razor thin 271 to 266 margin. In the end, it was the recount in Florida in which Bush beat Gore by 537 votes that decided the race. The three other races in which this occurred were in 1824, 1876, and 1888.
   Supporters of the pact say the law will pass constitutional muster because the U.S. Constitution gives the states exclusive and complete power to determine how to allocate their electoral votes. Opponents argue that the Compact Clause of the Constitution requires congressional approval of the pact before it could take effect. The pact would likely be challenged in the courts if and when it has enough states to guarantee 270 electoral votes to the winner of the popular vote.
   According to Fair Vote’s website, the pact has been signed into law in the District of Columbia and ten states possessing 165 electoral votes — 61 percent of the 270 electoral votes needed to activate the legislation. The states include California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York. Rhode Island, Washington State and Vermont. Only the approval of additional states with a total of 105 more electoral votes is needed before the measure goes into effect.
   Supporters of the pact say the Electoral College is an antiquated system that is inherently undemocratic and gives voters in states with large numbers of electoral votes more voting power than those in other states. They argue the system was designed by the framers because they did not trust the common citizen to vote correctly and wanted a fail-safe method to overturn the voters. They note that presidential candidates now concentrate on and campaign in a handful of swing states while ignoring most of the states that are already solidly Democratic or Republican.
   Rep. David Linsky (D-Natick) supports the law because he believes that every vote in every state should be equal. “The principle is simple: the vote of every person should count the same,” Linsky said. “By eliminating the arcane Electoral College system, we can achieve a more fair and functioning democracy.”
   “The Electoral College is an undemocratic twenty-first-century anachronism,” said Rep. Jay Kaufman (D-Lexington). “It was adopted in the eighteenth century as part of the political compromise between large and small states as this country was experimenting with nation-building.”
   Some opponents say that the Electoral College is a good system that has worked well and should not be changed. They argue it gives voters in smaller states power that they would not have if the president was elected strictly by a popular vote system in which candidates would concentrate on states with larger populations. 
   Some argue that electing the president by popular vote would give wealthy and fringe candidates a chance at success by focusing their efforts in a few major urban centers. Others said that the switch to a popular vote is a very serious issue that needs more study. Others argue that the Constitution provides no guidance on the ground rules for a convention which could cause all kinds of problems. They also say that a convention would not necessarily be limited to the Electoral College amendment and note that many amendments on several other topics could be considered. 
   “I voted against the National Popular Vote compact in 2010 because it represents an end-run around the Constitution,” said Rep. Brad Jones (R-North Reading). “The Electoral College was created to ensure that presidential candidates have true, broad-based, national appeal among voters of various socioeconomic backgrounds, living in both urban and rural areas. Under the compact, the 11 most populous states could single-handedly decide the outcome of a national election, depriving smaller states of a role in the process.”
   Rep. Paul Frost (R-Auburn) said that if the system is going to change it should be through the process of changing the U.S. Constitution, not a clever workaround. “The compact of states is weak and subject to political gamesmanship,” said Frost. “Even if a state joins like Massachusetts did, nothing stops a state from leaving the compact if the party in charge of the state legislature doesn’t think the compact works for their party’s candidate for president that year. They have until June of that election year to opt out.” 
   Stay tuned.

   Here is how local senators and representatives voted in 2010 on whether Massachusetts should join the Agreement among the States to Elect the President by National Popular Vote.
   The pact was approved by the House 114-35 and the Senate 28-9. It was signed into law by former Gov. Deval Patrick.


   (A “Yes” vote is for joining. A “No” vote is against joining.)

 Rep. Christine Barber Was not yet elected Rep. Denise Provost Yes Rep. Timothy Toomey Yes Sen. Patricia Jehlen Yes                                     

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