Would Electoral Win Without Popular Vote be Swan Song for Swing States?

U.S. election law is arcane and odd, but changing it is hard and controversial.

October 25, 2012, 7:54 PM

Oct. 27, 2012— -- You don't have to go too far into fantasy land to envision a scenario in which President Obama loses the popular vote, but wins the electoral vote. Mitt Romney has gained ground in some national preference polls, but Obama still leads in many battleground state polls.

ABC's Matthew Dowd has been making this argument for months and he's gotten company in recent weeks. (Read Dowd's post from June.)

Others, nestled on editorial boards, and in think tanks and ivy covered colleges, have been discussing the pros and cons of our current Electoral College system for years.

Suppose for a moment that it comes to pass: Obama gets fewer votes than Romney, but is reelected. (Check out ABC's race ratings and play with the electoral map.)

The handwringing would be endless. Republicans would be outraged. Democrats, some of whom still daydream about what might have been if 2000 popular vote winner Al Gore had taken the White House, might see poetic justice.

But not so fast. There's the matter of the U.S. Constitution and the 12th Amendment, which would have to be changed. Amending the Constitution is notoriously hard, requiring that an amendment pass by a two-thirds majority in the House of Representatives, a two-thirds majority of the U.S. Senate and by three fourths of the 50 state legislatures.

Alex Keyssar, a professor of history and social policy at Harvard's Kennedy School of Government, points out that plan to throw out the electoral college has passed Congress before, most recently in 1970.

"Nixon had announced that he would sign it. There were polls that it would get through the states. But it was killed by the filibuster," Keyssar said.

He rejects the argument of national popular vote opponents who point out that the electoral college was placed into the Constitution to protect the rights of smaller states and insure that the U.S. remained a republic.

"This country may have been envisioned as a league of states, not as a nation. But we are a nation," he said.

"My own view is that a popular vote system would make the institutions in this country keep up with changes that have been going on in the social fabric of the country for 200 years," Keyssar said, pointing out that the framers also intended the electoral college and not the citizens, to debate who should be elected and select the president. State electoral votes weren't originally awarded on a winner-take-all basis either. The founders didn't originally envision a two-party system either.

"It has strayed so far from what the founders originally set up that I don't find the intention of the founders to be a reason to keep the differently functioning and deformed version that we have," said Keyssar.

There is an effort - Natonal Popular Vote- which has been ratified by eight states, to basically create a legal agreement among states to keep the electoral college, but award the votes proportionally instead of by state.

But it isn't a Constitutional amendment and there are concerns that a broad agreement by some states would violate the Constitution. The eight states that have passed the bill are far from a majority.

Read an independent report from Congress about the history of the electoral college and past reform proposals HERE.

Electoral College System Has Backers

ABC's political analyst George Will has argued that the current system lends stability to the political process. As often as it creates a split decision, it can magnify a slim victory. John F. Kennedy, for instance, narrowly won the popular vote 49.7 to Richard Nixon's 49.5 percent in 1960. But Kennedy had a more commanding win in the electoral college.

"The electoral vote system shapes the character of winning majorities," said Will. "By avoiding proportional allocation of electoral votes, America's system — under which Ross Perot in 1992 got 19 percent of the popular votes and zero electoral votes — buttresses the dominance of two parties, and pulls them to the center, producing a temperate politics of coalitions rather than a proliferation of ideological factions with charismatic leaders." (Read George Will's argument here).

A Campaign Without Swing States?

What, no swing states? The mind boggles.

But Keyssar suggests it could make the entire system more equitable and engage a larger portion of the country in the election.

"If you imagine where we are today in this election, what you'd be looking at is a national mass mobilization with everybody trying to get out the vote everywhere, instead of everybody sitting around looking at the polls in Ohio," he said. If votes in his home state of Massachusetts were a bit more important to the national total, there would be more engaged local efforts to get people out for president -- the current epic Senate battle there notwithstanding.

Hans Von Spakovsky, a senior legal fellow at the Heritage Foundaton, sees it differently. He writes on the Heritage Foundation website that the National Popular Vote effort would lead to a further marginalizing of smaller states. Campaigns would instead focus all of their attention on major media markets where the most voters could be reached for the least cost.

Relying on a popular vote instead of a state-based system, he argues, would trade swing states for a focus on large urban areas, where advertising dollars can reach more people.

The Electoral College "embodies the balance [the Founders] aimed to achieve through deference to states with smaller populations and by ensuring that the interests of these states be reflected in national decision-making," he writes. Not to mention that in 2000, the recount in Florida caused a collective rise in the national blood pressure. Imagine a national recount.

But supporters of a popular vote system say it is more important to achieve a more democratic ideal than one in which swing states are so key.

"This problem would disappear if we had a truly national election with one electorate and votes counting the same wherever they were cast," said Jack Rakove," a Pulitzer Prize winning Stanford political scientist. "Then the candidates would have to think more creatively about how to mobilize a national electorate, rather than pouring money into the televised advertisements that must drive voters in the battleground states completely bonkers. The parties would have the incentive to attract voters throughout the country, which is now a matter of complete indifference to them."

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