Standards and Consequences

In the WSJ, John Fund uses the recent Wisconsin judicial election to look at the variety of voting standards (or lack of standards) across the country. This election's fate was decided when a Republican county clerk realized that she had forgotten to add 14,000 votes from a city into her reported figures. This vote swing put the "conservative" candidate over the top. Fund reflects more broadly on the systems of voting in the US:

Our Constitution decentralizes our election procedures over 13,000 counties and towns, with each counting its votes in its own way. This basic framework is sound, but local practices are too often unsound. In 2005, a bipartisan Commission on Federal Election Reform, headed by former President Jimmy Carter and former Secretary of State James Baker, issued 87 recommendations on how to clean up our system. Sadly, most have been ignored or implemented only haltingly.

Fewer than half of states exchange updates on voter registration with other states, and many never sufficiently check the accuracy of registration information. Most registration lists are inadequately transparent—they aren't easily searchable and are clogged with ineligible or duplicate voters. Fewer than half the states require some form of post-election audit or manual recount.

The Carter-Baker commission noted that "the electoral system cannot inspire public confidence if no safeguards exist to deter or detect fraud or to confirm the identity of voters." Eighteen of the 21 commission members called for voters to show photo ID at the polls and for more security for absentee ballots.

Some states have since adopted photo ID laws. But too many (like Wisconsin) still do not require any ID to vote. In a time of razor-thin election margins, we can no longer afford such insecurity in our election process.

Also, though one-third of all votes in 2008 were cast before Election Day, safeguards against absentee ballot fraud are still spotty.

Fund's points also have a bearing on the fate of the Electoral College. The National Popular Vote movement attempts to sidestep the process of amending the Constitution by having various states sign onto a compact saying that they will cast their electoral votes not for the candidate who wins that state but for the candidate that wins the national popular vote. This movement could be on the verge of a significant win in California, where an alliance of Republicans and Democrats in the state legislature has formed to push through a bill that would have California join the compact.

As I've written before, this huge range of standards would make switching to a National Popular Vote system problematic. Right now, under the Electoral College, the voting irregularities of one state are somewhat confined to that state: having more rigorous, fraud-deterring standards within a state does not weaken it relative to other states for presidential elections. Moreover, what fraud does occur is often more limited in its impact.

If the Electoral College were nullified by the National Popular Vote compact going into effect (which would only happen once enough states to reach 270 electoral votes sign on), states would have an incentive to have as many votes---and as many fraudulent votes---flood the national system as possible. Rigorous standards, such as ID requirements for voting, could lower the turnout of the state and so weaken that state's influence in national elections.

Right now, the voting standards of, say, Georgia have a limited effect on Wisconsin, and Wisconsinites have limited motivation to police the standards of Georgia and other states. Under National Popular Vote, the whole calculus of standards changes considerably; then, the standards of Georgia would have a more considerable effect on the lives of Wisconsin citizens. Should National Popular Vote pass, there would very likely become a growing chorus on behalf of a single standard for voting across the county, with an increasingly centralized and invasive bureaucracy to oversee the nation's voting.

That increased centralization might not be a problem if you support the US government becoming more like a parliamentary democracy, but it is more troublesome for those who believe in the United States being a federated republic. Moreover, there is considerable reason to believe that a single federal standard for voting would be less secure than many state standards. In the past few years, it is precisely the biggest administrative bodies that have failed in their duties: megabanks, ratings agencies, federal overseers, etc.

There is of course a role for federal involvement in voting standards. The Civil Rights Act, for example, was hugely important for ensuring that the Constitutional franchise was enjoyed by the citizens of many states. But there is also a reason for wanting to limit federal power, as well.

The National Popular Vote compact has been proposed and is advancing in many state legislatures; it has already been passed in six states and Washington, DC (see its website for more details). Some state legislators may hope that the success of this measure would bring more attention to their states and so increase their own power and influence, but NPV may represent a significant step down the road of undermining the power and independence of these legislatures and their members.

Electoral Pluralisms

Tara Ross has an incisive column up detailing some of the logistical problems of the National Popular Vote plan. Here's the core of her argument:

The compact has at least one fundamental flaw that should bother even those who are otherwise opposed to the Electoral College: It does nothing to address the 51 sets of currently existing state election codes (all states plus Washington, D.C.). These codes will remain in place and cause confusion and litigation after the bill is enacted.

Today, each state conducts its own presidential election in partial reliance on its own set of local election laws. These laws may differ from those of sister states, but the differences are irrelevant at the national level. At the end of the day, voters in Massachusetts don’t care about the laws governing California’s election. They are voting with (or against) other Massachusetts voters in a contest for Massachusetts’ electors. Similarly, California will hold its own contest. NPV changes this practice. It continues to rely on 51 existing sets of local laws, but it pretends that it can cram all these differing processes into one coherent national outcome. It can’t. The result will be utter chaos.

As one small example, NPV could prevent full recounts from being held. No recount could be conducted, for instance, if no individual state statute was triggered — even if only a few hundred votes separate the top two contenders. Or perhaps a few states could conduct recounts while the rest of the states watch from the sideline. Recounting states may not agree on logistics, such as how to tally a hanging chad. NPV claims that it’s trying to make “every vote equal.” It will not achieve that goal by throwing voters into one pool for election purposes, then allowing their votes to be tallied differently.

These are not the most minor objections. Say different states have different standards for what counts as a vote or not (one thinks of the Florida recount of 2000 here). Under the current order of the Electoral College, as long as those standards are applied consistently within the state, those standards will remain locked within that state.

Under the National Popular Vote plan, however, the standards of one state will bleed into those of another. States with looser standards for what counts as a vote (e.g., a dimpled chad or whatnot) will have their votes count for more than states with more rigorous standards.

Through balancing the diverse structures of each state, the Electoral College does not seek to create a specious uniformity. Through federalist pluralism, it offers a decentralized method of electing the president.

Mass Electoral College Battle: Back to the House

The Massachusetts State Senate passed the National Popular Vote plan late at night last night. The vote was 28-10. A top Senate source tells me that the bill will next have to return to the House for a vote on enactment, and then go back to the Senate for another vote for enactment before it goes to the desk of Governor Deval Patrick.

The State House News Service reports on an interesting detail:

Senators turned back through a 17 to 21 vote a Republican amendment to add a non-binding ballot question on the issue to the November ballot. Democrats said that it would be too late to add it to the ballot.

This was a close vote. I suppose there's some irony in the the fact that the advocates of the National Popular Vote plan, who wrap themselves in the mantle of democratic virtue, fought so hard to kill a bill that would actually, you know, allow people to vote on changing the electoral structure of Massachusetts.

It looks like the House and/or the Senate could vote on the amendment again for the enactment votes. And pushing for the referendum could be a viable goal: the Senate's vote on the amendment (17-21) was a lot closer than the final vote on engrossing the bill (28-10). The House still has a chance to give the people a voice in this matter (to use the rhetoric of the NPV), and the Senate could still move for a referendum. If the NPVers are so confident that the public will support their plan, why the anxiety about a referendum?

Electoral College in MA Update

A top Republican leadership source in the Massachusetts State Senate informs me that there is considerable concern that the National Popular Vote proposal could pass the State Senate. This anti-Electoral College measure would open up the possibility of making Massachusetts award its electoral votes to whatever candidate wins the national popular vote. The measure has already passed the Massachusetts House. If the measure passes the Senate, it would still need to go to the desk of Governor Deval Patrick, who has offered tentative words of support for the proposal in the past.

This source also reminds me, though, that this anti-Electoral College proposal has passed both branches of the Massachusetts legislature in previous sessions and still not made it to the governor's desk. Here's a good narrative of the debate about the Electoral College in Massachusetts over the past few years.

The legislative session ends on July 31. Defenders of the Electoral College would be wise to contact their state senators now. My source indicates that the bill is on the calendar to debate tomorrow, though Senate debate on this measure has been pushed back numerous times. There are both Republican and Democratic defenders of the Electoral College in Massachusetts. This is not a done deal in the Commonwealth, but supporters of the Electoral College will need to fight hard.