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It's a close call, Colorado, but please stick with the national popular vote
Oct 29 2020
LaRue is a former deputy director of the Eisenhower Institute, a nonpartisan think tank at Gettysburg College, and of the American Society of International Law.
<p>Coloradans will finish voting next week on whether to support using the popular vote to elect the president. It's a close call, but let's hope they do.</p>
<p>The ballot initiative follows Colorado's decision last year to join 14 states and Washington, D.C., as a member of what's called the National Popular Vote Interstate Compact — pledging their Electoral College votes to the winner of the nationwide popular vote, but only once states with a combined 270 electoral votes (the majority guaranteeing election) have signed on. The current group commands 196 votes. </p>
<p>But shortly after Democratic Gov. Jared Polis signed the law, opponents launched a "veto referendum" campaign and gathered 100,000 more signatures than the 125,000 required to put the measure on this fall's ballot. Voters will now have the chance to affirm or reverse the state's decision. Nearly $6 million has already been spent on the campaign, with three of every four dollars spent by people wanting to remain in the compact.</p>
<p>(By the way, 22 states provide an avenue for the citizenry to repeal a state law. Colorado last saw its version used in 1932.)</p>
<p>Coloradans have good reasons to vote "Yes," which means sticking with the popular vote compact. Doing so would support the principle of every one person having one vote, which the Electoral College tramples. And it would encourage turnout, which the Electoral College disincentivizes in the solid majority of states that year after year remain reliably Republican red or Democatic blue. (Voter participation was 11 percent less in the "safe" states, on average, than in the battlegrounds of 2012, for example.)</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>If the compact takes over how presidential elections are decided, effectively neutering the Electoral College as we now know it, that would end the practice of candidates making all their campaign appearances in the relative handful of competitive states. And it would bring an end to so-called misfire elections, when the Electoral College winner prevails despite losing the popular vote.</p><p>Voting "Yes," however, would eventually prove to be only a symbolic decision — because the compact itself is fatally compromised. </p>
<p>The critical flaw is not about using the popular vote. It is not the deal's total lack of bipartisan support at the moment, Colorado being the only remotely purple place on a list that's otherwise all deep blue. And it is not the pact's potential unconstitutionality, because courts may decide it needs congressional approval, which it does not have, or is an improper diversion around the Constitution. </p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>These concerns are irrelevant, as are the problems from sticking with winner-take-all, plurality outcomes. </p><p>What matters is that, if ever implemented, the compact would crumble at first use. </p><p>This design instability starts with the compact going into effect once states representing 270 electors sign on. Participating states may not leave the compact in the six months before each national election, but they can do so afterwards. If even just one or two states decides to leave after the first election under the compact, the total number of electors from participating states would likely fall below the magic number, thus killing the compact.</p><p>Would states drop out this way? Assuredly. Just consider Maryland, the first state to join the compact in 2007. If the reliably Democratic electorate ever witnesses its 10 electoral votes awarded to a Republican winner of the national vote — irrespective of whether the election is close — do you think Maryland voters or their representatives would allow that to happen again?</p><p>Or consider 2004, when Democratic Sen. John Kerry would have cinched an Electoral College majority had he overcome only a 120,000-vote gap in Ohio. He would still have lost the national popular vote by 3 million. Had the compact been in effect, how do you think voters in Ohio, or in blue California and New York, would have reacted if their electoral votes went to the re-election of President George W. Bush? </p><p>Yes, some would support political equality and defend reliance on the national popular will. But would there be enough of them, and would they be loud and strong enough to prevail?</p><p>Such scenarios could play out in any blue or red state where residents might conclude their votes were subverted. Contributing to this flaw is the simple truth that, by preserving the Electoral College and its structure, the compact signals to voters that their states still matter — the opposite of what the NPVIC advocates. </p><p>If the compact ever gets close to membership by states with more than 270 electors, this implementation problem will get heightened scrutiny. No new states would sign on. Existing participants would drop out. In other words, the NPVIC is destined to die before it ever has a chance to live.</p><p>I would still vote "Yes" on Proposition 113 if I lived in Colorado. The compact's sustained civic education and engagement value is real and merits appreciation if not support.</p><p>Ultimately, however, a constitutional problem requires a constitutional solution. That means an amendment, the daunting path the NPVIC explicitly avoids. At some point, pursuing the compact became (or will become) a diversion from the only course leading to the desired destination.</p><p>A transition to a goal of eliminating rather than modifying the Electoral College is needed. That could be expedited by more misfire elections, or dramatically boosted by this nightmare occurring: No candidate secures 270 electoral votes and the election is thrown to the House, where each state's delegation would have one vote.</p><div></div><p>Amending the Constitution to change how we select the president remains unimaginable now. But political reality could be different in a decade — or in 2037, the Constitution's 250th anniversary. Truly celebrating that milestone will require removing the stain of the Electoral College. </p>
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Under LaRue's proposal, a Trump-like president would get two more years before facing reelection, but there are four reasons why that is unlikely.
Scratching that six-year itch again, with Trump in mind
Aug 24 2020
LaRue is a former deputy director of the Eisenhower Institute, a nonpartisan think tank at Gettysburg College, and of the American Society of International Law.
<p>Back in April I argued in this space for <a href="https://thefulcrum.us/balance-of-power/presidential-terms" target="_self">remaking the presidency</a>, with a term of six years followed by the chance for the incumbent to win a second term of just three years.<br></p><p>By better matching the electorate's behavior (by heightening the voters' power to render a verdict during their "six-year itch") and better reflecting the terms' relative value (to minimize the second term "curse"), this structure would produce numerous benefits — ranging from easing the relentless pressure of permanent campaign to incumbents being lame ducks for a third of their presidencies, but not half. </p><p>Despite such benefits, the proposal runs head-on into the presidency of Donald Trump. The prospect of two additional years of his service horrifies many people, <a href="https://ricklarue.com/f/wait-two-more-years-of-trump" target="_blank">including me</a>.</p><p>It is useful to recall the two main scenarios for service in the White House: a president serving four years, or winning re-election and serving eight years. The second scenario now seems implausible, but not impossible, for the incumbent. </p><p>Under my proposal, we would have two more years of Trump — but it would be highly likely we would have no more than that, because he would be facing the even higher reelection hurdle at <a href="https://www.theatlantic.com/past/docs/politics/polibig/ornstein.htm" target="_blank">the six-year itch</a> mark. </p>
<p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>If he serves only one term, the idea of it lasting two more years seemingly becomes problematic. This is not the case, and there are four reasons why. </p><p>First, the reality that reelection after four years has become too easy — based on factors I've labeled the "four-year crutch" — would not really be countermanded by a Trump defeat. His presidency is so anomalous that his tenure has no direct relevance to questions about term lengths or any governing structure — save, of course, the Electoral College.</p><p>Second, any change in presidential term lengths would require a constitutional amendment and so would start many years, if not decades, in the future. This long time horizon is worth a reminder not because Trump will be long gone by then, not matter what, but because our nation's politics will have to change significantly before changes to term lengths will ever be seriously considered. Extensive civic education and other reforms to improve voting and electioneering would have to occur, producing a political environment more resistant to a narcissistic demagogue's appeal than in recent years. </p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Third, with the nation now confronting its glaring mistake of electing a huckster as president, it is doubtful we will soon repeat such a grievous error. Trump's authoritarian venality, corruption, incompetence and truthlessness will become clearer after November — whether he's a furious lame duck for 11 weeks or somehow re-elected and unfettered for four years. We also will learn a great deal about his presidency after he leaves office. When all the redactions are lifted and the details of Trump's finances are exposed, the picture of the Trump administration will likely be far darker than it is today. </p><p>Finally, even if a Trumpian sort of populist is elected in the future, impeachment and conviction remain a viable means for removing such a president — and this process would likely be more effective if attempted during a longer, six-year first term. Whether rushed or too exclusively partisan, Trump's impeachment last year came with no real prospect of conviction and removal. The Democratic House leadership felt pressure to act sufficiently in advance of the 2020 election, which foreclosed the option of gathering more evidence of his unsuitability for office. Such <a href="https://www.washingtonpost.com/opinions/in-just-one-month-trump-commits-a-whole-new-set-of-potentially-impeachable-offenses/2020/07/26/ae679d60-cde1-11ea-bc6a-6841b28d9093_story.html" target="_blank">additional material</a> may not have proved equivalent to Richard Nixon's Oval Office tapes, but its cumulative weight may have started cracking the support of Trump's Senate enablers. </p><p>These considerations all signal that the Trump presidency is mostly irrelevant to the idea of changing presidential term lengths to a six-year first term and a three-year second term. If anything, it may strengthen the case for addressing the underlying challenges that led to Trump's election in the first place — including structural ones, such as term lengths and the Electoral College.</p><p>Trump may be the civic wake-up call we end up having needed. That he has boosted civic education and engagement in America is noted by scholars and analysts such as <a href="https://www.amazon.com/Rhetorical-Presidency-Princeton-Classics/dp/0691178178/ref=sr_1_1?dchild=1&keywords=Tulis+Rhetorical+Presidency&qid=1595358474&s=books&sr=1-1" target="_blank">Jeffrey Tulis</a>, <a href="https://www.amazon.com/One-Nation-After-Trump-Disillusioned-ebook/dp/B06XW24YY6" target="_blank">E.J. Dionne, Jr., Thomas Mann and Norman Ornstein</a>. And we must acknowledge that the 2018 blue wave may have been but a ripple <a href="https://projects.fivethirtyeight.com/if-clinton-had-won/" target="_blank">had Hillary Clinton been elected in 2016</a>, as such midterms almost never favor the incumbent president's party. </p><p>The good news is that Trump will find himself — sadly, we are not there yet — at the bottom of the civic pit he has been digging deeper. There will only be one way out: Up, and without him. Competence in governance will again count for something. Civility in public affairs will count for more. Concern for others will return as the benchmark of public service. Compromise will regain at least some of its value. </p><p>Baseball fans know the game offers lessons as well as escape. "I will be told I am an idealist. I hope so," Commissioner Bart Giamatti said <a href="https://www.amazon.com/Great-Glorious-Game-Baseball-Writings/dp/1565121929" target="_blank">in announcing</a> superstar Pete Rose's 1989 banishment for gambling on the sport. He said baseball was a "resilient institution," and that "no individual is superior to the game." </p><p>And like baseball after Rose was barred, governance after Trump's tenure will get better — even if it takes several seasons, or elections. Our ingenuity will get us out of tight spots, even those our Founders, our predecessors and our own peers created. And constitutional change — such as altering presidential term lengths, will not seem as far-fetched as it does at the moment.</p>
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Elector faithlessness is the least of the college's problems
Jun 11 2020
LaRue is former deputy director of the Eisenhower Institute and of the American Society of International Law. This piece is adapted from his article for a forthcoming issue of the University of Idaho Law Review.
<p>Listening last month, as Supreme Court proceedings were broadcast live for the first time, was a treat. In the "faithless electors" case, however, the novelty contrasted with the likelihood that the court's decision this month won't change much about how we select the president.</p><p>Whether states can punish electors for changing their pledged votes is a minor issue in the plethora of Electoral College problems. </p><p>The court is addressing it because lower courts rendered contradictory verdicts for cases from Colorado and Washington. Yes, the original idea of the Founders is that the electors would act as a sort of board of trustees in choosing the president. But practice quickly evolved toward the current system, voters selecting electors. And we now have more than 200 years worth of experience with their service as our delegates, instead of trustees.</p><p>Even if the court decides electors can change their votes without consequence, that would not unleash the warned-of chaos of rogue electors conspiring or being bribed to change their votes — and with them the election's outcome. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Faithless electors are already rare and inconsequential. Of more than 23,000 votes cast since 1804, fewer than 100 can be considered faithless. Some peg the number at just 16. They will become even more rare, regardless of the court's decision or any state attempts to tighten laws binding them to vote the will of the electorate. Each political party will simply undertake deeper vetting to ensure its electors support its nominee.</p><p>The Electoral College's insidious erosion of democracy in each election and its capacity to cause dramatic chaos should concern us more. </p><p>Every four years it violates political equality by weighing each vote differently, based only on the state in which a citizen lives. Then, 10 percent of the time it delivers a misfire election, in which the winner of the most popular votes loses the election. This has occurred in five of the 49 elections since 1824, when the popular vote was first recorded.</p><p>Perhaps most damningly, the Electoral College disincentivizes voting. Too many states — red and blue, populous or not — are considered "safe" for one of the parties, which depresses turnout. Republicans and Democrats alike in such states too often can think "My vote actually won't make a difference" and stay home. In 2012, turnout in non-swing states was 11 percent below that in the battleground states. That only a handful are perceived to matter was demonstrated when Democrats Hillary Clinton and Tim Kaine campaigned in just 14 states four years ago.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Finally, the Electoral College was not the result of Founders' wisdom — but of their desire to finish and go home. It was a poorly conceived, last-minute transactional compromise. Its initial format failed outright after just four elections, and it has remained a thorn in democracy's side since being slightly tweaked with the 12th Amendment in 1803. It does not merit repair now.</p><p>Replacing it with "just" the popular vote is not viable, either, because we use winner-take-all plurality voting. In 19 elections in the last two centuries — two out of every five — a majority has voted for the losing candidates. Our leaky two-party system has meant two modern presidents have been elected with just 43 percent support, Richard Nixon in 1968 and Bill Clinton in 1992. </p><p>The Electoral College also minimizes the impact of third parties; if it is removed, more independent candidates would stay in the race through Election Day and the country would experience continued and even smaller plurality winners. The resulting destabilization would require yet another fix.</p><p>Majority rule — "the fundamental principle of free government," according to James Madison — should be our goal. Painfully and ironically, though, we do not pursue that when voting for president. Achieving it would require using some form of runoff, whether a second round for the top two vote-getters or, more plausibly, a version of <a href="http://thefulcrum.us/ranked-choice-voting" target="_self">ranked-choice voting</a>. </p><p>The National Popular Vote Interstate Compact, which would have states award their electors to the national popular vote winner, does not get us there. I applaud its aspirations, but it is destined to fail — and not because it has a partisan cast (only blue states are participating so far), permits plurality winners and is potentially unconstitutional. </p><p>Its inherent instability would be its fatal flaw.</p><p>First, by retaining the Electoral College structure, the compact signals to voters their state identity still matters — contradicting the compact's primary message. Then, if a participating state's voters support the loser of the nationwide vote, strong dissonance will occur when their electoral votes are awarded to the winner. States will respond by withdrawing from the compact, maybe dropping it below the 270 electoral votes required for activation.</p><p>This flaw will get closer scrutiny should the compact get closer to adoption. It is embraced now by 16 states plus D.C., representing196 votes. If the number reaches the 240s, say, the final states to get over the top will never materialize — and some participating now will likely drop out.</p><p>The Electoral College's ongoing damage to our democracy needs to be stopped. We need an election system that elects a president with majority popular vote support. And since we cannot go around the Constitution to correct a constitutional problem, this means pursuing an amendment, arduous as it appears today.</p><p>Getting such an amendment through Congress with two-thirds majorities, then ratified by 38 states, is likely to require a kick in the constitutional pants — from more frequent misfire elections where the Electoral College winner and popular vote winner don't match (most likely), an election decided by the House after no candidate secures 270 votes (less likely) or, if the Supreme Court allows it in coming days, enough electors changing their votes to change the outcome (least likely). </p><p>This could take many years to play out. But the sooner we give future generations the opportunity to celebrate the closing of the Electoral College, the better.</p>
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