That Doesn’t Mean It’s Legal In The Real World

That would be my answer to John R. Koza's statement about his plan to try an end run around the United States Constitution with a plan to go around the Electoral College. He said: "When people complain that it’s an end run,” Dr. Koza said, “I just tell them, ‘Hey, an end run is a legal play in football.’ ’’. This isn't football. This is circumventing the rules this nation is founded on and it is an extraordinarily bad idea for everyone in this country.

Now, a 63-year-old eminence among computer scientists who teaches genetic programming at Stanford, Dr. Koza has decided to top off things with an end run on the Constitution. He has concocted a plan for states to skirt the Electoral College system legally to insure the election of whichever presidential candidate receives the most votes nationwide.

“When people complain that it’s an end run,” Dr. Koza said, “I just tell them, ‘Hey, an end run is a legal play in football.’ ’’

The first fruit of his effort, a bill approved by the California legislature that would allocate the state’s 55 electoral votes to the winner of the national popular vote, sits on Gov. Arnold Schwarzenegger’s desk. The governor has to decide by Sept. 30 whether to sign it, a decision that may well determine whether Dr. Koza’s scheme takes flight or becomes another relic in the history of efforts to kill the Electoral College.

“It would be a major development if California enacts this thing,” said Tim Storey, an analyst for the National Conference of State Legislatures. “It will definitely transform it from a smoldering thing into a fire.’’

There have been many efforts over the decades to kill the Electoral College, the little-known and widely misunderstood body that actually elects the president based on the individual states that a candidate wins. Most recently, former Representative John B. Anderson of Illinois and former Senator Birch Bayh of Indiana spearheaded a drive, Fair Vote, for a constitutional amendment to abolish the Electoral College.

The brainstorm behind Dr. Koza’s effort, led by a seven-month-old group, National Popular Vote, was to abandon that approach and focus on creating interstate compacts. Those are contracts that bind states over issues like nuclear waste and port authorities.

Dr. Koza’s compact, if approved by enough legislatures, would commit a state’s electors to vote for the candidate who wins the most national votes, even if the candidate loses in that state.

Robert Hardaway, a professor of law at the University of Denver who wrote “The Electoral College and the Constitution: The Case for Preserving Federalism” (1994), has counted 704 efforts to change or abolish the Electoral College. Most, he said, were ill advised, including this one.

“It’s legal, but it would be a terrible idea,” Professor Hardaway said. “Look at the trauma the country went through having a recount in Florida. Suppose what would happen, in the face of a close national election, if we had to have a recount in every little hamlet.”

This is not the first time I have posted about this "innovation". I did so here and here. Again, despite the approving tone of the NYT article and the disinformation Koza and his group are spreading, there is a valid reason for the electoral college. Without it, small states would no longer be represented fairly in the presidential vote. Contrary to what Koza says, campaigns would only focus in the "compact states". There would be no way the smaller, less populous states would matter any longer. I am not at all sure this would pass constitutional muster because of the "no compact" wording in the constitution. But am quite certain this is an appallingly bad, partisan attempt to meddle with the system.

UPDATE: Ron Chusid at Liberal Values sees the extreme danger in using an "end around" to the Constitution. He's right. Either change it the way that is provided in the Constitution or drop this. This is a bad idea.

With distrust at such a great level already, we cannot afford to create even more controversy over the results. If this system passes in enough states, the first time it results in a different winner than under the current system this will be yet one more reason people will not accept the results. We must have nation wide and bipartisan agreement as to the rules, and the rules must be in accordance with the Constitution so nobody can question their legitimacy. It would be much safer if any change in how elections are decided was accomplished by a mechanism accepted by all as legitimate, such as a Constitutional amendment.

The fact of the matter is that the United States is not, and has never been under the Constitution, a "democracy". It is a democratic republic – there is a huge difference. The founders specifically did not want mob rule. They wanted checks and balances and they did not want the tyranny of larger states ruling over smaller states. They fought, bled and died to break away from that system. Which is exactly the system that Koza would impose. The Electoral College was meant as a check on mob rule. Do it within the Constitution if you can, otherwise drop this.