Washington Lawyer

Cover Story

Electoral College Reform?

By Joan Indiana Rigdon

For more than two centuries now, we Americans have been electing intermediaries who elect our presidents, instead of electing our presidents ourselves.

 

And for just as long, we have debated whether this indirect electoral system makes sense, given the political forces of the day. That was especially true in 2000, when for the fourth time in American history, the electoral college chose the loser of the national popular vote as the president of the United States.

 

In the wake of that election, and the Supreme Court decision that affirmed it, critics once again began deriding the college as anachronistic at best, and elitist and undemocratic at worst. In 1969, Congress came close to passing a constitutional amendment that would have overhauled the system. In 2000, pundits predicted another attempt. Then 9/11 happened and our attention turned to terrorism and war.

 

Now, as the nation prepares for the 2008 presidential election, the critics are back, this time with a radically different tool. Instead of lobbying for a constitutional amendment, election reformers have proposed an interstate compact that calls for national direct elections.

 

States may enter into compacts; and the Constitution allows each state to decide how to appoint its own electors. Therefore, the compact’s backers argue, states have the constitutional authority to agree with other states to appoint only those electors who pledge themselves to the candidate who wins the national popular vote.

 

Under the compact, states that join would do precisely that. But the compact would not go into effect until enough states join to represent a majority of electoral college votes. Most states are mulling it. As of press time, only Maryland had signed on.

 

Supporters say that national direct elections would never elect a minority president, and that they would shift the campaigns’ current focus away from swing states to the country at large.

 

More specifically, it would put an end to the current winner-take-all system, which effectively nulls the votes of millions of voters who happen to vote for the minority candidate in their states.

 

“We have a structural political problem in how we’re electing the president. We need a national election in which every vote counts equally in every part of the country,” says Maryland State Sen. Jamie Raskin, a Democrat who sponsored the compact legislation in his state. He also is a professor of constitutional law at American University Washington College of Law.

 

Opponents of the proposed compact say it would take power away from the states, produce presidential campaigns that focus solely on large metropolitan areas, elect presidents without national mandates, introduce the prospect of nationwide recounts, and reduce sparsely populated states to nonentities.

 

Moreover, opponents say the system is working well as it is. “The electoral college has proven to be an incredibly resilient institution for balancing the interests of federalism and popular election of the national leader through all kinds of changes in the political system,” including the emergence of political parties and the current red-state blue-state phenomenon, says George Terwilliger III, a partner at White & Case LLP, who helped lead the legal team for President Bush during the Florida recount. “It has proven to be a national value and really a national treasure despite all these changes.”

 

End Run

There have been more than 600 failed attempts to pass a constitutional amendment to change the electoral college since 1804, when Congress ratified the Twelfth Amendment, specifying that electors should cast separate votes for president and vice president.

 

The interstate compact proposes to upend the electoral college process without a constitutional amendment. “It’s ingenious. It’s just ingenious,” says John Samples, director of the Center for Representative Government at the Cato Institute, a libertarian think tank.

 

Samples opposes the compact for several reasons, but is amazed by its approach. “They’ve read the Constitution and come up with this means whereby they run around the Constitution without running around it.”

 

Origins

When the Framers designed the presidential election process, they considered several systems, ranging from a direct popular vote to a vote by state governors. In the end, they decided that the states would appoint electors, who in turn would elect the president.

 

Each state is allowed a number of electors equal to the size of its congressional delegation. That gives the smallest states at least three.

 

This system gave the states the power to choose their shared leader, while guaranteeing the smallest states a minimum amount of influence in that choice. It also required candidates to win support from many states across the country, so no president could ascend to the White House with only regional support.

 

One Person, One Vote

The huge flaw, critics say, is that under the electoral college system, votes in some states count more than votes in others—sometimes many times more.

 

Wyoming, for instance, has a population of half a million and three electoral votes, or one electoral vote for every 167,000 people. California has a population of 36 million and 55 electoral votes, or one electoral vote for every 654,000 people. So a vote in Wyoming counts roughly four times as much as a vote in California. That is what makes it possible for the candidate with fewer popular votes to win.

 

“We live in democracy. The person who gets more votes should win. It has happened very rarely that the person who got the most votes hasn’t won, but I think it shouldn’t happen ever,” says Ron Klain, who served as general counsel for the Gore-Lieberman Recount Committee and as a senior advisor to the Gore campaign.

 

The Founders gave no guidance on how votes should be counted or how voting should take place. “There’s nothing in the Constitution that sketches an affirmative right to vote. Without that, it’s actually hard for people to figure out what a democracy requires and what it doesn’t,” says Heather Gerken, a Yale University Law School professor who specializes in voting rights and election law.

 

Still, most polls show most Americans believe in the concept of one person, one vote. “Everybody should have an equal stake. Right now, people do not have an equal stake,” Gerken says.

 

The Rules

Supporters of the electoral college say it was designed to take the popular vote into consideration, insofar as the population elected the state legislatures that appointed the electors, or elected the electors themselves. But there is no guarantee now, and never has been, that the national popular vote should determine who becomes president, Terwilliger says.

 

“One of the fundamental things that is really lost in this debate is the manner of electing the president reflects the judgment that the president should, in fact, be the leader of the states as confederated and united, but not necessarily representative of some sort of base notion of the popular will,” he says.

 

When the candidate with fewer popular votes ascends to the White House, “it’s not a thwarting of the will. It’s an empowering of the states.

 

“I think some people are saying, ‘Well, that’s just pointy-headed federalism.’ That pointy-headed federalism is the fundamental political judgment upon which our entire division of power and authority between the federal government and the states was established,” Terwilliger says.

 

Bobby Burchfield, a partner specializing in election law at McDermott Will & Emery LLP, supports the electoral college for many reasons. Like Terwilliger, he also can’t fathom why opponents assume that the winner of the national vote should be president.

 

“Sometimes the winner of a football game has fewer total yards than the loser. Those are the rules,” says Burchfield, who served as one of President Bush’s lawyers in the Florida recount.

 

“It doesn’t persuade me that the system is bad, to say that sometimes the system produces a result that a different system would produce differently.”

 

Winner Take All

The electoral college has changed significantly over time. In its first iteration, states appointed a select group of men who then independently elected the president. “The vision was we would choose the Great Men who would choose the Great Man,” says Gerken.

 

Four elections later, political parties emerged. As they gained control of state legislatures, they began appointing only those electors who agreed to support the controlling party’s candidate. That transformed the electoral college process into a process of ratification, instead of an election in its own right.

 

Methods of appointment changed, too. At first, some states named their electors while others chose them through a statewide vote. By 1860, all states used statewide elections to appoint electors.

 

Combined with partisan politics, this led to the winner-take-all system, according to an unofficial history of the electoral college, written in 2003 by William C. Kimberling, then deputy director of the Federal Election Commission’s Office of Election Administration. Parties nominated slates of electors, equal to the size of their states’ delegation, to the electoral college. Then, in statewide elections, voters cast their votes for entire slates. A winning slate was then appointed to the electoral college in entirety.

 

Today, 48 states use the winner-take-all system. The exceptions are Maine and Nebraska, which appoint their delegations proportionally.

 

Critics say the combination of the electoral college and the winner-take-all system can grossly distort the popular vote. The most recent egregious example of this was in 1984, when Ronald Reagan bested Democratic presidential candidate Walter Mondale with 59 percent of the popular vote, which translated to 98 percent of the electoral college vote. Reagan won 525 electoral votes to Mondale’s 13.

 

And in 2000, Bush parlayed a 537-vote lead in Florida into 25 electoral votes that clinched the election.

 

The current system “makes battleground states very, very high-stakes propositions,” Klain says. “A difference of a couple of hundred votes in a single state decided who our president was, even though the national election was nowhere near that close.” (In the national popular vote, Gore bested Bush by more than half a million votes).

 

Under winner-take-all, “we are ignoring large blocks of minority voters—people who don’t vote for the winner,” says Jack Young, a partner at Sandler, Reiff & Young, PC. He served as one of Gore’s lead counsels for the Florida recount. “We are also making it very, very clear that we don’t really care about who is elected by the people, but who is elected by people in various states.”

 

Theoretically, a candidate could win several large states by just a handful of votes. “Let’s say you win New York, Pennsylvania, Ohio, Florida, and California by 10 votes. You’ve only won by 50 votes. You, however, have picked up over 150 electoral votes,” Young says.

 

The electoral college’s ability to distort the popular vote “really demobilizes political action and it demoralizes millions and millions of people,” he adds. “It’s probably the major reason that our turnout in presidential elections is so low.”

 

Proportional Allocation

There is a movement to abandon the winner-take-all approach. This summer, Republican strategists began work on a ballot initiative that would require California to apportion its electoral votes by congressional district. Its backers are hoping to get the initiative on the June 2008 ballot.

 

That would be a blow to Democrats, since California and its 55 electoral votes are considered solidly blue. Democrats could respond by pushing similar initiatives in red states where Democrats have a significant presence, such as Florida and Ohio.

 

If many states adopt proportional allocation, that would make the electoral college vote a better reflection of the national popular vote.

 

For those who want election reform, “the most practical idea is to divide up the vote by congressional districts to get some chunk of the reform. It isn’t as pure as going to a nationwide one person, one vote. But it’s practical, it’s doable,” Klain says.

 

It also has the benefit of being better able to withstand challenges to its legitimacy, he says. “It’s something that actually already exists in this country. It’s easier to rebut horror stories and nightmares about what it means because it exists already. States have done it. It doesn’t require all 50 states to act. It doesn’t require a constitutional amendment, obviously.”

 

Senator Raskin says proportional allocation presents the same problems as the electoral college, albeit on a smaller scale. He uses California as an example. “Let’s say you won half of the congressional districts plus one, by 10 votes. And the ones you lost, you lost by 400,000 votes in each district.” In that situation, a candidate could win a majority of the state’s electoral votes while losing the popular vote. “You’re just reproducing the problem at the state level,” he says.

 

A few swing states might consider moving to a proportional system, he says. But if they do, “you will never see a candidate in those states again. It will just be a 50–50 state, a spectator state.”

 

State legislatures have little incentive to splinter their electoral college votes. In California, Democrats will say, “we want a Democrat to win. Why would we give away half of our electoral votes?” Senator Raskin says. The same goes for Texas.

 

Burchfield agrees. “If they divide up their electoral college delegation, they water down their influence in the presidential sweepstakes,” he says.

 

Of course, state legislatures aren’t the only ones in control of the process; the proposed California ballot initiative bypasses the legislature.

 

It’s unclear how voters will judge the proposal. In 2004, Democratic presidential candidate John Kerry won 55 percent of California’s popular vote, to Bush’s 45 percent. Kerry’s 55 percent majority wanted a Democrat in the White House, but as Democrats, many of them may also want election reform. The question now is how many are willing to support such reform if it means compromising the Democrats’ current lock on California’s 55 electoral votes.

 

Senator Raskin is hoping that those who want presidential election reform will seek it out in its purest form: direct national elections. Systems designed on “proportional allocation or voting by congressional district are politically futile,” he says. “They also sap the reform movement of what we have going on for us, which is the beautiful clarity of majority rule.”

 

Swing States

Under the current system, presidential campaigns focus only on those states that will be key in helping them put together an electoral college majority of 270 votes. That puts huge emphasis on sizeable states where the popular vote is closely divided and subject to swing, including Florida, Ohio, New Mexico, and Missouri.

 

Meanwhile, states that are solidly blue or red get almost no attention, because the candidates figure campaigning there won’t make a difference.

 

The problem is, solidly blue and red states represent most of the country’s population. In the 2004 election, “literally 12 out of the 13 largest states, and with the exception of New Hampshire, virtually all of the small states were totally ignored by both major party campaigns, both in advertising, candidate appearances, or any effort other than one series of national televised campaign debates,” says John Anderson, the former Illinois Congressman who ran for president as an Independent in 1980. Anderson now is the chair of FairVote, The Center for Voting and Democracy, based in Takoma Park, Maryland.

 

In 2004, “both Kerry and Bush were like shuttlecocks, flying back and forth furiously, frantically, between Florida and Ohio because they wanted to win the electoral votes of those states,” Anderson says. “We don’t have truly national campaigns anymore. We have flyovers.”

 

The current system is geographically fickle. “Voters in urban areas of St. Louis and Kansas City see presidential candidates a lot. But if you take those same votes and put in Chicago and Springfield [Illinois],” the votes would not attract attention,” Klain says.

 

“Why should Missouri see presidential candidates more than people in Illinois? They’re right next to each other.”

 

Opening Up the Map

With national direct elections, “candidates will have to campaign all over the country,” Senator Raskin predicts. “It will not make any sense for Democrats to completely surrender Texas, or for Republicans to completely surrender California.”

 

Candidates are more likely to focus on densely populated areas, but Anderson thinks they will not simply write off rural ones. “A vote in little Wyoming with 500,000 people would have as much cogency and as much importance as one vote in New York. You might literally pull a close election out of the fire by having stirred up a majority that you needed in small states,” he says.

 

Samples questions that logic. “The assumption is that because all votes count equally under direct popular rule—one person, one vote—that the weight of the vote means that [candidates] will look for the marginal vote anywhere. So they’ll go everywhere. The problem is, it’s not the weight of the vote, but the cost of getting the marginal vote.”

 

Candidates will go where that cost of acquisition is lowest, Samples predicts. Instead of exploring new territories, they will simply campaign harder in their strongholds.

 

For Republicans, for example, “the cost of getting [new votes] in Texas is lower [than in California]. You probably already have an efficient organization, so you’re going to be looking to run up the score in Texas rather than to go over to California to seek new voters,” Samples says.

 

“I think that’s what you end up with. The red states become redder and the blue states become bluer.”

 

For those who want to open up the map, “it would be a big help if more states did what Nebraska and Maine have done and gone to votes by electoral district,” says Klain. (Each state allots one electoral vote to the winner of each congressional district; and two to the winner of the statewide election.)

 

“In 2000, Gore made late campaign stops, both in Maine and Nebraska. Those stops would not have been made if they were on the winner-take-all system,” Klain adds.

 

National Mandates

With national direct elections for president, campaign attention would shift from swing states to metropolitan centers. They would focus on “the coasts and one or two cities in the middle,” says Terwilliger. A candidate who wins by campaigning this way would not have a national mandate, he adds.

 

“To the extent that people see that as a problem” with the electoral college, “eliminating the electoral college process is just going to exacerbate it,” he adds.

 

Burchfield agrees. “The popular vote would tend to push the candidates into population centers. They would have to go where the people are rather than allocate their campaigns throughout the country,” he says.

 

Under the current system, different election cycles focus on different states, as those states swing in political allegiance. California, New York, and Texas may not attract campaign attention now, “but in our lifetimes there have been instances where those states have been very much in play in presidential elections,” Burchfield says.

 

With national direct elections, campaigns always will cleave to population centers; those centers aren’t likely to change much, he adds. “Population shifts, too, but it shifts over decades.”

 

Small States

The states themselves have a lot at stake. The electoral college gives greater weight to the small states, because it is based on Congress, which does the same. Abolishing the college would end that advantage, which is why small states consistently vote against constitutional amendments to overhaul the system.

 

Without the electoral college, “There are states like Wyoming where, as far as they’re concerned, their states would cease to exist in terms of presidential elections,” says David Bositis, senior political analyst for the Joint Center for Political and Economic Studies. (Wyoming, with just more than half a million residents, is the least populous state in the union.)

 

“Face it. You would have fairly nondescript suburbs in places like California or New York that would cast more votes than several states,” Bositis adds. If that were true, those metropolitan areas would emerge as political forces in their own right, while the small states would disappear.

 

Young disagrees. “The people of Wyoming are certainly not harmed by national popular elections. … If you assume that the electoral college gives them the advantage that it does, they probably do lose that advantage. But they don’t lose advantage in one sense,” he says. With a national popular vote, “every person in Wyoming’s vote now gets counted.”

 

(At least, they would be tallied differently. In the last election, Kerry’s 71,000 votes in Wyoming translated to zero votes in the electoral college. In a national popular vote, they would still be worth 71,000 votes.)

 

Gerken, the Yale law professor, says it is wrong to assume that the electoral college system helps small states. It may give extra weight to votes cast in small states, but overall, she says, it favors large states, when candidates think those states can be swung.

 

Suppose California were a swing state. “You can go to California and win 51 percent of the vote and get all the electoral votes. So there’s a huge incentive to go to big, populated states rather than small states,” she says.

 

“Even if you go with the assumption of the story” that the electoral college system favors regional interests represented by the small states, “we already have a system that is biased in favor of regional interests,” Gerken says. That system is Congress.

 

“It’s good to have multiple overlapping strategies for representing the American people. We already have a House and a Senate that represent regional and rural interests. In particular, the Senate already represents the interests of rural voters. We need to tip the scales in the other direction.”

 

Senator Raskin says the design of the electoral college should be changed because it is rooted in the politics of slavery. “When the slave masters got to the Constitutional convention, their goal was to entrench their political power so the federal government could not overthrow the peculiar institution” of slavery, he says.

 

That led to the compromise of giving all states, big or small, equal representation in the Senate; and allowing southern states to count three-fifths of every slave as part of their populations for the purposes of determining how many delegates they could send to the House of Representatives.

 

The electoral college “combined these two forms of disproportion that southern states had built into the political institution. It works like a dream for the South. Four out of our first five presidents were slave masters: Washington, Jefferson, Madison, and Monroe were slave masters. And six of the first ten were slave masters,” Senator Raskin says.

 

“The electoral college has always been a key ingredient in America’s racial politics. Think of the 20th century. Every time the Democratic Party began to advance civil rights, you would get Dixiecrats who would step outside of the Democratic Party and take 10, 20, 30, or 40 electoral votes,” he says.

 

Presidential candidates like George Wallace and Strom Thurmond “who had no real dreams of winning the election were able to send a very sharp negative message to the Democratic Party about civil rights” by using the electoral college system, he adds.

 

The Minority Vote

The last time Congress came close to passing a constitutional amendment to overhaul the electoral college system was 1969. The previous year, former Alabama Governor George Wallace had campaigned for president as an Independent on a prosegregation platform. He won 46 votes in the electoral college, which nearly made him king-maker in the race that was dominated by Republican candidate Richard Nixon and Democrat Hubert Humphrey.

 

Wallace did not determine the outcome of the election, but his candidacy helped inspire congressional hearings on electoral college reform. President Nixon had asked Congress for such reform; he planned to run for reelection and worried Wallace could gain enough votes in the electoral college system to derail a Nixon victory in 1972.

 

Senator Birch Bayh II (D-Ind.) then sponsored a proposed constitutional amendment calling for national direct elections for president. It passed by wide margin in the House, but was tabled in the Senate for a year. When the Senate took it up again in 1970, it failed to gain enough votes for ratification.

 

During the debates over the amendment, blacks campaigned against it, saying it would diminish the influence of the black vote. At the time, they were correct, says Bositis, the political analyst. He is an expert on black voting patterns and has served as an expert witness in several voting rights cases.

 

The Voting Rights Act of 1965 had just passed. Newly enfranchised blacks were voting for Democrats, but so were whites. “Whites voted more Republican, but there were a fairly high percentage, and in some states, a majority, who voted Democratic,” Bositis says.

 

Together with white Democrats, southern blacks had the power to help swing some southern states to the Democrats—which they eventually did in 1976, when Jimmy Carter swept the South. That gave them a significant influence over the election process. With national direct elections, they would lose that.

 

New Racial Politics

Thirty-seven years later, the political landscape has changed. “Elections are more racially polarized than ever in history,” Bositis says. “White voters and black voters do not vote alike. They vote diametrically opposed.”

 

Southern blacks did help southern whites elect President Clinton two times. But for the past 11 years, southern blacks have continued to vote overwhelmingly Democratic, and their candidates have lost. They can no longer deliver parts of the South.

 

National direct elections would restore some of their influence, Bositis says. It would increase turnout by drawing campaign activity to the South and by making it possible for blacks across the country to unite into a sizeable voting block.

 

According to the 2000 United States Census, blacks account for more than a quarter of the population of Alabama, Georgia, Louisiana, and South Carolina, and more than one-third of Mississippi. Overall, southern blacks comprise more than 6 percent of the nation’s population, but in the past two elections, their vote was parceled out in such a way that they held no sway. “I do think that has the effect of diminishing turnout,” Bositis says.

 

Nationally, however, blacks comprise about 12 percent of the population, and about 90 percent of them vote Democratic. With national direct elections, they would have significant power.

 

What’s more, they are geographically accessible, since more than half of them are concentrated in the South. That would make it relatively inexpensive for candidates to court their votes.

 

With national direct elections, “there would be more of an effort made to get African Americans to turn out to vote in Mississippi instead of writing Mississippi off. And not just Mississippi, but all of the other southern states that have heavily concentrated, polarized votes,” Bositis says.

 

The Hispanic Vote

The same is not true of Hispanics, who represent 15 percent of the country’s population. Although they are geographically concentrated—half live in Texas or California, Bositis estimates—their allegiances are divided.

 

“While they are a pretty solidly Democratic group, they are nowhere near as Democratic a group as African Americans. African Americans typically vote 90 percent Democratic, whereas you do have elections where 30, 35 percent of Hispanics vote Republican,” Bositis says.

 

In 2004 in Texas, for instance, “Kerry barely beat Bush 50 percent to 49 percent among [Hispanics]. You couldn’t say of the [Hispanics] that they were somehow disadvantaged,” since half of them voted for the winner, he says.

 

Also, it is more difficult to get Hispanic voters to turn out, Bositis says, because of language and citizenship issues. “With African Americans, they’re virtually all citizens. They speak English. There’s an infrastructure in place, even among black groups. They can be easily mobilized to assist with political efforts to get African Americans to vote,” he says.

 

“If we’re talking about the 2008 election,” national direct elections “would be advantageous for African Americans having a voice in politics,” he concludes.

 

Third-Party Candidates

Wallace mounted a strong third-party candidacy because he was able to win control of a few states in the South. With national direct elections, his influence would have been minimal.

 

But in general, third-party candidates would find it easier to campaign in a national direct election, Anderson says, having been such a candidate himself. “In press conference after press conference, I was told, ‘You can have a lot of support around the country, but you are never gong to be able to win a majority in enough states to win in the electoral college.

 

“That was a huge deterrent to any third-party candidate to penetrate that barrier,” he says. Anderson wound up with 7 percent of the popular vote, but no electoral votes. With national direct elections, a candidate with 7 percent would have some bargaining power with the leading candidates. The system “would probably encourage third parties,” says Samples.

 

But that could splinter the vote to the point where no one receives a majority, which would make runoffs and recounts more likely.

 

“The electoral college has the effect of localizing any election dispute. I was involved in the recount in Florida in 2000, and I thought many times, thank God for the electoral college,” Burchfield says.

 

“In the last 12 elections, four have been decided by razor-thin margins: Kennedy–Nixon, Nixon–Humphrey, Carter–Ford, and Bush–Gore. In an election that had a very close popular vote, you could have a nationwide recount where both sides trying to mine votes out of their strongest states rather than one singular state,” he says.

 

“If an additional vote in California is worth as much as an additional vote in Florida, which Candidate A won by an eyelash, the question would be whether, in light of the way the Supreme Court ruled in Bush v. Gore, you could recount only a particular state. I think that it’s a definite possibility that a candidate that is looking to increase his or her vote count can look anywhere and everywhere for those additional votes.”

 

Young, a veteran of recounts, says in some cases a national recount would be appropriate, but doable. “One of the myths that the proponents of the winner in Florida continue to make, which I suggest is dead wrong, is that a recount is a laborious inefficient process. The recount itself can be done fairly efficiently, fairly quickly. Statewide recounts can occur over a very short time period,” he says.

 

“The general thing that happens is they are drawn out because of statutory procedures. … That’s not necessarily what has to happen.”

 

No Amendment Needed

Supporters of the interstate compact are happy to have found a way to achieve their goal without a constitutional amendment. They know small states won’t be inclined to join, but then again, they don’t need them.

 

This possibility is worrisome, even to Anderson, who supports the compact. A constitutional amendment “is preferable in the sense that you have the people speaking through elected representatives,” he says. “If you get the necessary number of states to come up past the 270 mark,” the compact would take effect. “But I think [the process] is democratic with a small d.”

 

Samples believes small states would count themselves “tremendously harmed” by national direct elections. “If you’re going to harm them, better to go though a process that’s recognized and convince them,” he says.

 

The process of passing a constitutional amendment “would also take some of the partisanship out of it. You couldn’t do it just on a partisan basis,” he adds.

 

Is It Constitutional?

Most lawyers on both sides of the aisle believe the proposed interstate compact would be constitutional. Burchfield disagrees.

 

If a state’s delegation must vote for the national vote winner, and that person did not carry that state, “that basically deprives the people of the state of their vote. … I don’t think it’s constitutional. Of course, it’s never been litigated,” Burchfield says.

 

Anderson differs. “We’ve vetted it with people like Laurence Tribe,” he says, referring to the Harvard Law School professor who is a leading expert in constitutional law. “Go back and read Rehnquist in Bush v.Gore. He points out that it’s totally within the power of states to decide who their electors shall be.

 

“We want to give this power to the people of our states to decide who our electors shall be. And they shall be based on the winner of the national popular vote.”

 

The Odds

Supporters of national direct elections say they are not partisan, but at the moment, they are mostly Democrats who feel disenfranchised after the close calls of the past two elections.

 

It’s not clear that these Democratic forces could pass an interstate compact without help from Republicans. The states that voted for Kerry in 2004 represented only 251 electoral votes. The larger states included in that majority are presumably the most likely to support the compact, and they represent only 213 votes.

 

One of those states was California, whose Republican governor, Arnold Schwarzenegger, already has vetoed his legislature’s choice to join the compact. So at last count, the compact’s most likely supporters represent only 158 electoral votes.

 

To get the remaining 112 votes, compact supporters will have to go fishing among the red states, whose candidates have been winning under the current system.

 

If the compact does ever win enough support to take effect—Anderson, the most optimistic person interviewed, thinks this is possible by 2012—it would have to be approved by Congress, as all interstate compacts must. At that point, “it may not be impossible that small states are going to have enough votes to sustain a filibuster,” Samples says.

 

Even if the compact fails, it is making a statement, Klain says. “It’s a very clever idea … And I think it’s a good effort. If nothing else, it will focus more attention on this issue and hopefully move the ball forward.”

 

But, he adds: “If anyone is looking for a quick answer here, they should go home right now.”

Freelance writer Joan Indiana Rigdon wrote about litigation challenging gun control laws in the July/August issue of Washington Lawyer.