Wednesday, June 1, 2011


Mark it down. It’s never too late to learn, never too late to change your mind.

That truism came to the fore a week or so ago when my friend Don LeDuc, who succeeded me as President of Cooley Law School, sent me a thick book entitled “Every Vote Equal: A State Based Plan for Electing the President by National Popular Vote.”

Like most Americans, I have always been conflicted about the process of electing our President. While the Electoral College sounds arcane, still it was established by the Founders, and that gives it a leg up for most of us.

Americans are wary of amending the Constitution, and the politicians who have the power to propose amendments are also the beneficiaries of the present system. So the status quo is what else? The status quo. What is, is.

On the other hand, along with nearly 75% of my fellow Americans, I think the President of the United States should be elected by a majority of the voters of the United States.

Now comes a web site, with a prestigious bi-partisan advisory board, which announces that we don’t need to amend the constitution. All we need is enough state legislatures to agree to popular election and it’s a done deal.

The book is 894 pages of solid information. Historical. Statistical. Legal. It makes a strong case.

First off, there is the business of how Presidential elections are run these days.

We have all heard about the red states and the blue states. New York is blue. California is blue. Texas is red. In fact about 32 of the 50 states and the District of Columbia are solidly and ‘safely’ either red or blue.

That leaves 18 ‘battleground’ states. Ninety-nine percent of the money spent on political advertising gets spent in these states. In New Mexico, Nevada, Ohio and Florida, for example, the political parties pay out more than four dollars a vote on their Presidential campaigns.

The State of Washington sees about 20 cents a vote and eleven other states get less. In 23 states neither political party spends anything.

If you are a blue voter in a red state or a red voter in a blue state, you might as well stay home. The candidates won’t waste their time or their money on you.

What emerges with the Electoral College is not the bastion of states’ rights I always thought it to be. Instead, what we have is a system in which the big money boys from Wall Street and the Union Halls compete to buy electoral votes in a third of the nation, while everyone else gets to stay up late on election night and see how the auction turns out.

In the 221 years of our history, there have been four Presidents who didn’t win the popular vote. About a dozen more losers could have won, but for a few votes here and there.

The Constitution intended the Electoral College to be a deliberative body. What has evolved over the years is something different. Presidential electors are required, or at least expected, to vote for the winner in their state everywhere but in Maine and Nebraska.

Still there have been eleven “unfaithful” electors who jumped ship and voted for somebody else. Eleven out of 21,915 isn’t very significant, except to prove that it is possible.

Which brings me to my latest brainstorm.

What if one of the Republican hopefuls were to make popular election of the President his major issue?

What if he promised to ask all electors pledged to him to vote for the candidate who wins the popular vote?

What if he says, “I will not take the oath of office unless I am elected by a majority of the American people?”

And what if he challenges his opponent to make the same promise?

That would sure stir things up in the White House.

Not to mention the New York Times.

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