A Defense Of The Constitution

California governor Arnold Schwarzenegger has quietly, with no fanfare and almost no media attention, vetoed the attempted end around on the US constitution. The bill which had been passed by both chambers of the California legislature would have attempted to form a compact to overturn the US electoral system. George Will skewers the people trying to pass this illegitimate assault on the constitution and praise Schwarzenegger for his stand.

WASHINGTON — California's governor has demonstrated virtue, understood as the good we do when no one is watching. With his state and the nation paying no attention to an anti-constitutional campaign to alter how presidents are chosen, Arnold Schwarzenegger has vetoed a bill that, had it become law, would have imparted dangerous momentum to a recurring simple-mindedness.

The bill would have committed California to cast its electoral votes — today, 55 — for whichever candidate receives the most popular votes nationally. The commitment would have been contingent on a compact with other similarly committed states, all having a combined total of at least 270 electoral votes.

Will goes on to explain the two rationales the proponents of this scheme offer for trying to do illegally what they cannot accomplish at the ballot box. He saves the real scorn for the second rationale:

The second argument for the multistate compact is: The possibility of the winner of the popular vote losing the electoral vote contest violates the value that trumps all others — majoritarianism. Well.

Never mind that in 42 of the 46 elections since 1824 (all but 1824, 1876, 1888, 2000) for which we have popular vote totals, that did not happen. Which suggests that the assault on the electoral vote system is driven by simplistic majoritarianism, which would shatter the two-party system that is conducive to temperate politics.

That electoral vote system (combined with the winner-take-all allocation of votes in all states but Maine and Nebraska) makes it very difficult for third party presidential candidates to be competitive. In 1992, Ross Perot won 18.9 percent of the popular vote but no state and therefore no electoral votes. Direct popular election of presidents would be an incentive for fragmentation of the electorate by the proliferation of factional candidacies.

The end result of a compact such as this would be that the small states would not even be looked at by presidential candidates. They would concentrate all their efforts in the big states that would ensure their election. But the real kicker is, as Will points out, that the main example cited to justify these efforts doesn't show the failure of the system at all. It shows the exact opposite:

 It is perverse that the 2000 election, which culminated with the lawyers' riot in Florida, is cited to undermine an electoral vote system that prevented 2000 from being a calamity. If in presidential elections all popular votes were poured into one national bucket, a close election such as the one in 1960, which was decided by fewer votes (118,574) than there were precincts (166,064), would unleash a coast-to-coast frenzy of litigation — about ballot design, voting hours, alleged voting-machine malfunctions, etc. The electoral vote system quarantines electoral disputes to a few closely contested states.

Think about that for a moment. If it were that close an election, we would end up in a coast-to-coast battle royale. This proposal is not a victory for democracy as its proponents say it is. It is a full employment program for lawyers. Kudos to Arnold Schwarzenegger for seeing this for what it is.