The Electoral College and the National Popular Vote Compact

Vermont and California are apparently poised to become the seventh and eight states (along with the District of Columbia) to join the National Popular Vote Compact. Member states have enacted legislation awarding their states' Electoral College votes to the winner of the national popular vote (effective once the legislation has been enacted by states controlling a majority of the electoral college votes).  The Compact would create a de facto national plurality election for the presidency.

Blogging at the Corner, Tara Ross worries about the National Popular Vote movement:

Tom Golisano of NPV [National Popular Vote] celebrated the decision in Vermont, declaring that NPV will allow all votes to count “while preserving the Electoral College and the intent of the Founding Fathers.”

What an odd thing to say. NPV preserves the intent of the Founding Fathers? Would these be the same Founders who explicitly rejected a national direct-election system for the American presidency? NPV conveniently forgets that the original small states — states just like Vermont — would not have ratified the Constitution if a direct-election system had been included. NPV also ignores the fact that its plan sidesteps a constitutional-amendment process that would require ratification by 38 states before such radical change to presidential elections can be implemented.

I completely agree with her about the oddity of contemporary small states' political impulses to ditch their disproportionate influence over presidential elections. I also worry about whether the NPV is actually constitutionally enforceable by the states since, it seems to me, that---though states may select electors by whatever mechanism they may prefer---the elector is free to cast a vote for president for whomever they wish. A state law constraining a federal elector's vote would be no more constitutionally valid than a state law directing a member of Congress to cast a vote in a particular way. The only remedy for an unfaithful elected official available directly to constituents under the federal Constitution is to decline to return a person to office at a subsequent election.

This brings me to my point of contention with Miss Ross. The Electoral College is an odd place to make originalist arguments. We are already incredibly afield from the Electoral College the Founders had in mind for the Electoral College (completely leaving aside the fact that the Founders themselves didn't like the original setup of the Electoral College and reformed it substantially in the 11th Amendment). The Founders' Electoral College was a set of deliberative bodies, selected by state legislatures (themselves elected by a narrow franchise) to choose the finest men of national reputation to serve as president. Prior to the advent of national political parties, the inherent coordination problems involved in choosing a single person (other than George Washington) of sufficient national prominence to win majority support from the state electors created a substantial likelihood that presidents would be chosen by the House of Representatives. The Founders' Electoral College was, therefore, the second step (after the election of state legislatures) in a deliberative process designed to filter and refine the nation's political leadership to designate the person of the highest quality and character to be president.

That system was corrupted long ago by mass political parties and the decisions of state legislatures to hand over control of the process of selecting candidates to their electorates. The combination of mass political parties (with presidential nominating systems) and electing electors took the process of deliberation and candidate selection away from the Electoral College and gave it, first, to party leaders and eventually to party voters through the caucus and primary systems. The deliberative functions of Electoral College have been dead for two centuries, leaving only the residual skewness in how electors are awarded to states. Its hard to defend that skewness in the absence of the deliberation that was supposed to accompany it.

Also, the National Popular Vote Compact does not require a constitutional amendment. States are constitutionally empowered to designate members of the Electoral College by whatever mechanism they choose. I suppose the plan does "sidestep" a formal amendment, but this is not an illegitimate mechanism for doing so.