A Stitch in Haste

Stanford University computer science professor John Koza has a candidate:

Koza's scheme calls for an interstate compact that would require states to throw all of their electoral votes behind the winner of the national popular vote, regardless of which candidate wins in each state. The plan doesn't require all 50 states to join, but a combination of states that represent a majority (at least 270) of the electoral votes. If the largest states join in the agreement, only 11 would be needed.

What an utterly atrocious idea.

Some hasty stitches:

--It's not at all clear that such an interstate compact would be constitutional. Yes the Constitution explicitly provides for interstate compacts, but clearly that mandate is limited to permissible purposes. See, e.g., Williams v. Rhodes, 393 U.S. 23 (1968) (elector slates cannot be unduly limited to major parties). Would a compact that was expressly designed to subvert the Electoral College be considered "permissible"? Also, interstate compacts require congressional approval — another extra-constitutional intervention into the Electoral process that would deserve some serious judicial scrutiny.

--Regardless of how states allocate electors, it is still inarguably well-settled law that electors, once chosen, are free to vote as they please. An electoral interstate compact would not change that.

--Why would any state join such a compact? How would it not decrease, rather than increase, their influence in presidential elections?

--Why bother? There's a far better alternative — one that I have been touting for years: the District Method of allocating electoral votes:

This method divides electoral votes by district, allocating one vote to each district and using the remaining two as a bonus for the statewide popular vote winner. This method of distribution has been used in Maine since 1972 and Nebraska since 1996, though neither state has had a statewide winner that has not swept all of the Congressional districts as well.

The District Method requires no constitutional amendment or dubious interstate compact plotting. It dilutes, significantly, the winner-take-all problems of the current system and reduces the potential for an electoral-popular divergence essentially to zero. It would bring candidates into more states during the campaign. And it might, just might, allow for a stray third-party electoral vote here and there, from time to time. Libertarians should love that prospect.

What do they say in medical school? Don't think "zebra" until you've ruled out "horse."

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A quick digression:

Supporters say the proposal would avoid such controversial results as the 2000 presidential election when Republican George W. Bush was declared the winner despite losing the popular vote to Al Gore, a Democrat.

This is, of course, utter nonsense. Al Gore did not win the popular vote — the outcome of the popular vote will never be known, since many places with undisputed polling place victories never counted their absentee ballots or their disputed votes (what today we call "provisional ballots"). And let's not forget the "snowbird voter" fraud in Florida that almost allowed Gore to steal the 2000 election from Bush.

Far more to the point — why should it make any difference if Al Gore did indeed win the popular vote? The candidates did not wage a popular vote campaign — they waged an Electoral College campaign. The popular vote was, therefore, wholly irrelevant.

How would the vote have played out if the Electoral College had not existed and a popular vote was in place from the outset? Who knows? The candidates would have traveled differently, spent their money differently, postured and positioned themselves differently. And so on.

It would be akin to saying that, even though Player A won the tennis match, Player B made fewer unforced errors. So what? They weren't having an "unforced error" contest; they were having a tennis match. So too with presidential elections — you can't "win" or "lose" a contest that was never fought.

The 2000 presidential election was undeniably a sad chapter in our political history. The best way to ensure that it never happens again is by switching to the District Method, not some unworkable pipe dream about direct popular election or Professor Koza's bizarre interstate compact gobbledygook.