By Jamie Raskin, professor of constitutional law at American University's Washington College of Law and director of its Program on Law and Government. He is also a Democratic State Senator in Maryland where he introduced the first National Popular Vote bill in America to be signed into law. Jamie can be reached at [email protected]
Every major progressive current in our political history has dismantled antidemocratic filters and blockages-like selection of U.S. Senators by state legislatures or property, wealth, sex and race qualifications for voting-in favor of direct and universal enfranchisement. The whole trajectory of American politics moves toward the beautiful, lawyerlike vision of our last great Republican president, who spoke of "government of the people, by the people, and for the people."
So it goes without saying that Americans have been trying since the beginning to overthrow our undemocratic, arbitrary, incomprehensible, racially tilted and dangerously manipulable electoral college regime in favor of a direct national popular vote for president of the United States.
This impulse-which has long commanded the support of upwards of 60% of the American people-has been thwarted by two false assumptions: (1) that no change is possible without a constitutional amendment and (2) that any change will disadvantage smaller states. But there have been dramatic political breakthroughs made recently by the National Popular Vote (NVP) movement, which seeks not to pass a constitutional amendment but to create an interstate compact in which states-all of them, it is hoped, but certainly enough to equal 270 in the electoral college-will agree to cast their electors for the winner of the national popular vote. With strikingly sophisticated analysis and remarkably little fanfare, 27 state legislative chambers (out of 99)-some in big states (California) and some in small (Vermont) and some in in-between (Washington)-have passed legislation to join the NVP compact, which has been signed into law in five states: Maryland, Hawaii, Illinois, New Jersey and, yesterday, Washington.
Why is the NPV plan spreading like political wildfire? The core reason is that it presents an irresistible proposition: that the person we elect president should be the one who collects the most votes. This is how we elect Governors, Mayors, Senators and Congresspeople, and it is how presidents are elected in most democratic nations that have presidents. On the other hand, the current electoral college regime can produce farcical upside-down results like the one we saw in 2000, a dismal turning point in American history, when the popular vote loser (by more than a half-million votes) tortured out a "victory" in the electoral college after the most dubious sequence of assaults on voting rights and political participation by state and federal actors like Katharine Harris and five Supreme Court justices. There have been four such "wrong winner" elections and numerous razor-close calls throughout our history.
Even so, people might be willing to roll the dice on more such electoral college pranks and mishaps were it not for the presence of an even more powerful motivation to change. The current regime has polarized America into safe "red" and "blue" states, with a handful of "swing states" in the middle. In our presidential elections, more than two-thirds of Americans are spectators and bystanders because we live in "safe" states where the competitive general election campaign never touches down because it is already abundantly clear who is going to win our electors. For example, in 2004, the presidential campaigns spent 99% of their political advertising budgets in 17 states and only 1% in 33 states and the District of Columbia. In other words, the campaigns spent only 1% of their political advertising money in two-thirds of the states! Indeed, they spent no money at all in 23 states, a shocking but perfectly rational use of resources. Fully 72% of all presidential campaign money was spent in five battleground states: Florida, Iowa, Ohio, Pennsylvania and Wisconsin. The deployment of campaign visits, appearances, offices follows the same pattern even in the case of the sensational Obama campaign and its "50-state strategy."
My home state of Maryland is a typical spectator state of the deep blue stripe: the Democrats take us for granted and expect us to export volunteers and money to Virginia (which we did in 2008 with verve); the Republicans have long since given up on us and waste no money contesting our ten electoral votes. We see no television ads (except some spillover from Virginia in the Washington suburbs), no campaign visits, no organized get-out-the-vote efforts, and no national investment in political organizing or mobilization. Just as the parties in swing states receive an infusion of energy and money, our parties are taxed for spending in the swing states and then ignored. Some of my colleagues in the Maryland Senate were forced to beg for a handful of Obama lawn signs because it was seen (rationally) as wasteful to use them in our state. When the Maryland General Assembly passed the NPV reform in 2007, members were moved profoundly by the prospect that we could have a presidential election in which all American votes would count equally and our state would have the chance to achieve a meaningful voice in national discussion.
It's important to see that we are not ignored because we are a mid-size state as opposed to a large one. Three of the four most populous states are also "spectator states" in which the lights turn off during the general election for everything but fundraising: California (blue), New York (blue), and Texas (red). Only the mighty Florida is (sometimes) a battleground state, which is why in 2004 the candidates spent more money on political advertising, and invested more candidate time on campaign visits, in that state than they did in dozens of other states combined.
Doesn't this mean that the current regime favors the smallest states? Not at all. At least 10 of the 12 least populous states are also in the dejected "safe" column. The six blue bastions of Rhode Island, Delaware, Vermont, Maine, Hawaii and the District of Columbia are bypassed by the campaigns just as surely as the red provinces of Alaska, Idaho, South Dakota, and Wyoming. I will charitably offer that Montana and North Dakota are sort of purplish because of Obama's energetic moves in 2008. But the point holds: the campaigns and candidates pay disproportionate attention neither to large states nor small states, but to swing states, those which happen to be closely divided politically. Within this minority of states, campaigns focus on the larger ones-another perfectly rational allocation of resources that has made Florida and Ohio the runaway belles of the ball.
[Part II was published here on Mon. May 4, 2009.]