Eagle Forum trio testifying at Senate hearing
Senator Benton, Republican member of the committee Testimony against Senate Bill 5599 (Approving an agreement to elect the president by popular vote)
Thank you Madam Chair and Committee members for the opportunity to testify before your committee. We appreciate your courtesy in allowing the three of us speak from the Fourth Corner of the State. [Chair interrupts: “Introduce yourself!”] My name is Luanne Van Werven and I am the Legislative Director for Washington Eagle Forum.
My testimony specifically addresses the concern that electing the president by popular vote will have the affect of nationalizing voter fraud. Voter fraud and election irregularities are serious problems in our country. Under the system of Electoral College, this can be compartmentalized on a state-by-state basis.
In 2000, the challenges were limited to the state of Florida and in 2004, it was contained to the state of Ohio. We believe a national popular vote could lead to lawsuits in multiple states after a presidential election. What happened in Florida could happen all over the country.
Can you imagine in the case of a very close election we had to conduct a recount in all 50 states? Imagine what is happening in Minnesota right now times 50! This would result in a Constitutional crisis.
I also wish to address what I believe to be an end-run around the Constitution. Since when do we change the constitution by compact? The process of amending the Constitution was brilliantly structured by our founding fathers and requires a high standard to prevent tampering with this most valuable document.
The Electoral College has served us well for more than 200 years and there is every reason to believe it can continue to serve us for generations to come.
Thank you.
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The major shortcoming of the current system of electing the President is that presidential candidates concentrate their attention on a handful of closely divided "battleground" states. Washington is not among them. 98% of the 2008 campaign events involving a presidential or vice-presidential candidate occurred in just 15 closely divided “battleground” states. Over half (57%) of the events were in just four states (Ohio, Florida, Pennsylvania and Virginia). Similarly, 98% of ad spending took place in these 15 “battleground” states. Similarly, in 2004, candidates concentrated over two-thirds of their money and campaign visits in five states and over 99% of their money in 16 states. Two-thirds of the states and people have been merely spectators to the presidential elections. Candidates have no reason to poll, visit, advertise, organize, campaign, or worry about the voter concerns in states where they are safely ahead or hopelessly behind. The reason for this is the winner-take-all rule enacted by 48 states, under which all of a state's electoral votes are awarded to the candidate who gets the most votes in each separate state.
Another shortcoming of the current system is that a candidate can win the Presidency without winning the most popular votes nationwide. This has occurred in one of every 14 presidential elections.
In the past six decades, there have been six presidential elections in which a shift of a relatively small number of votes in one or two states would have elected (and, of course, in 2000, did elect) a presidential candidate who lost the popular vote nationwide.
The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and DC).
Every vote would be politically relevant and equal in presidential elections.
The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538). When the bill comes into effect, all the electoral votes from those states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC).
The bill is currently endorsed by 1,246 state legislators — 460 sponsors (in 48 states) and an additional 786 legislators who have cast recorded votes in favor of the bill.
The National Popular Vote bill has been endorsed by the New York Times, Chicago Sun-Times, Minneapolis Star-Tribune, Los Angeles Times, Boston Globe, Hartford Courant, Miami Herald, Sarasota Herald Tribune, Sacramento Bee, The Tennessean, Fayetteville Observer, Anderson Herald Bulletin, Wichita Falls Times, The Columbian, and other newspapers. The bill has been endorsed by Common Cause, Fair Vote, and numerous other organizations.
In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). The recent Washington Post, Kaiser Family Foundation, and Harvard University poll shows 72% support for direct nationwide election of the President. This national result is similar to recent polls in Arkansas (80%), California (70%), Colorado (68%), Connecticut (73%), Delaware (75%), Kentucky (80%), Maine (71%), Massachusetts (73%), Michigan (73%), Mississippi (77%), Missouri (70%), New Hampshire (69%), Nebraska (74%), Nevada (72%), New Mexico (76%), New York (79%), North Carolina (74%), Ohio (70%), Pennsylvania (78%), Rhode Island (74%), Vermont (75%), Virginia (74%), Washington (77%), and Wisconsin (71%).
The National Popular Vote bill has passed 22 state legislative chambers, including one house in Arkansas, Colorado, Maine, Michigan, North Carolina, and Washington, and both houses in California, Hawaii, Illinois, New Jersey, Maryland, Massachusetts, Rhode Island, and Vermont. The bill has been enacted by Hawaii, Illinois, New Jersey, and Maryland. These four states possess 50 electoral votes — 19% of the 270 necessary to bring the law into effect.
See http://www.NationalPopularVote.com
The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law. The U.S. Constitution gives "exclusive" and "plenary" control to the states over the appointment of presidential electors.
Historically, virtually all of the previous major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation's first election in 1789. However, nowadays, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.
In 1789, only 3 states used the winner-take-all rule (awarding all of a state's electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all rule is now currently used by 48 of the 50 states.
In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.
In 1789, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state .
The normal process of effecting change in the method of electing the President is specified the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes. The abnormal process is to go outside the Constitution, and amend it.
What the current U.S. Constitution says is "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ." The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."
The potential for political fraud and mischief is not uniquely associated with either the current system or a national popular vote. In fact, the current system magnifies the incentive for fraud and mischief in closely divided battleground states because all of a state’s electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state.
Under the current system, the national outcome can be affected by mischief in one of the closely divided battleground states (e.g., by overzealously or selectively purging voter rolls or by placing insufficient or defective voting equipment into the other party’s precincts). The accidental use of the butterfly ballot by a Democratic election official in one county in Florida cost Gore an estimated 6,000 votes ― far more than the 537 popular votes that Gore needed to carry Florida and win the White House. However, even an accident involving 6,000 votes would have been a mere footnote if a nationwide count were used (where Gore’s margin was 537,179). In the 7,645 statewide elections during the 26-year period from 1980 to 2006, the average change in the 23 recounts was a mere 274 votes.
Senator Birch Bayh (D–Indiana) summed up the concerns about possible fraud in a nationwide popular election for President in a Senate speech by saying in 1979, "one of the things we can do to limit fraud is to limit the benefits to be gained by fraud. Under a direct popular vote system, one fraudulent vote wins one vote in the return. In the electoral college system, one fraudulent vote could mean 45 electoral votes, 28 electoral votes."
In Illinois in the 1960s, accusation of vote fraud by both political parties were commonplace. In 1960, a switch of 4,430 votes in Illinois and a switch 4,782 votes in South Carolina would have given Nixon a majority of the electoral votes. However, 4,430 votes in Illinois were only a focus of controversy in 1960 because of the statewide winner-take-all rule. John F. Kennedy led Richard M. Nixon by 118,574 popular votes nationwide, so 4,430 votes were not decisive in terms of the national vote count. Of course, if Nixon had carried Illinois and a state such as South Carolina in 1960, Nixon would have won a majority of the votes in the Electoral College, despite not receiving a majority of the popular votes nationwide.
The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires.
Under the current system, there are 51 separate vote pools in every presidential election. Thus, our nation’s 55 presidential elections have really been 2,084 separate elections. This is the reason why there have been five seriously disputed counts in the nation’s 55 presidential elections. The 51 separate pools regularly create artificial crises in elections in which the vote is not at all close on a nationwide basis, but close in particular states.
A recount is not an unimaginable horror or logistical impossibility. A recount is a recognized contingency that is occasionally required (about once in 332 elections). All states routinely make arrangements for a recount in advance of every election. The personnel and resources necessary to conduct a recount are indigenous to each state. A state’s ability to conduct a recount inside its own borders is unrelated to whether or not a recount may be occurring in another state.
If anyone is genuinely concerned about the possibility of recounts, then a single national pool of votes is the way to drastically reduce the likelihood of recounts and eliminate the artificial crises produced by the current system.
It is important to note that neither the current system nor the National Popular Vote compact permits any state to get involved in judging the election returns of other states. Existing federal law (the “safe harbor” provision in section 5 of title 3 of the United States Code) specifies that a state’s “final determination” of its presidential election returns is “conclusive” (if done in a timely manner and in accordance with laws that existed prior to Election Day).
The National Popular Vote compact is patterned directly after existing federal law and requires each state to treat as “conclusive” each other state’s “final determination” of its vote for President. No state has any power to examine or judge the presidential election returns of any other state under the National Popular Vote compact.
The U.S. Constitution, existing federal statutes, and independent state statutes guarantee “finality” in presidential elections long before the inauguration day in January. These constitutional provisions, statutes, and precedents apply equally to a presidential election conducted under the National Popular Vote legislation and an election conducted under the current system.
The U.S. Constitution (Article II, section 1, clause 4) provides:
“The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” [Spelling as per original]
The common nationwide date for meeting of the Electoral College has been set by federal law as the first Monday after the second Wednesday in December.
Under both the current system and the National Popular Vote approach, all counting, recounting, and judicial proceedings must be conducted so as to reach a “final determination” prior to the common nationwide date for the meeting of the Electoral College. In particular, the U.S. Supreme Court has made it clear that the states are expected to make their “final determination” six days before the Electoral College meets (the so-called “safe harbor” date established by section 5 of title 3 of the United States Code).
In addition, in almost all states, state statutes already impose independent (typically earlier) deadlines for finalizing the count for the presidential election. The U.S. Supreme Court has also ruled that state election officials and the state judiciary must conduct counts and recounts in presidential elections within the confines of existing state election laws.
It may be argued that the schedule established by the U.S. Constitution may sometimes rush the count (and possibly even create injustice). However, there can be no argument that this schedule exists in the U.S. Constitution, federal statutes, and state statutes; that this schedule guarantees “finality” prior to the meeting of the Electoral College in mid-December. This existing constitutional schedule would govern the National Popular Vote compact in exactly the same way that it governs elections under the current system.
Current federal law (Title 3, chapter 1, section 6 of the United States Code) requires the states to report the November popular vote numbers (the "canvas") in what is called a "Certificate of Ascertainment." You can see the Certificates of Ascertainment for all 50 states and the District of Columbia containing the official count of the popular vote at the NARA web site at http://www.archives.gov/federal-register/electoral-college/2004/certificates_of_ascertainment.html
If the President were elected from a single nationwide pool of votes, one would expect a recount once in 332 elections, or once in 1,328 years. The fact is that recounts would be far less likely to occur under a national popular vote system than under the current system.
The probability of a recount is 1 in 332 elections. There were, for example, 23 recounts among 7,645 statewide elections in the 26-year period from 1980 to 2006. The average change in the margin of victory was a mere 274 votes. The original outcome remained unchanged in 9 out of 10 recounts. (See Fair Vote. 2007. Survey and Analysis of Statewide Election Recounts 1980-2006 available at http://www.fairvote.org/reports/?page=1786&articlemode=showspecific&showarticle=2736 ).
Under the current system in which all of a state’s electoral votes are awarded to the candidate who receives the most votes in a particular state, there are 51 separate opportunities for recounts in every presidential election. Thus, our nation’s 55 presidential elections before 2008, have really been 2,084 separate elections. This is the reason why there have been five seriously disputed counts in the nation’s 56 presidential elections. The current system has repeatedly created artificial crises in which the vote is extremely close in certain states, but not at all close on a nationwide basis.
A national popular vote would reduce the probability of a recount from, until 2008 was, five instances in 55 to 1 in 332 (i.e., once in 1,328 years). In fact the reduction would be even greater because close results are less likely as the size of the jurisdiction increases. Indeed, only two of the 23 recounts were in big states (among the 7,645 statewide elections in the 26-year period from 1980 to 2006).
The 2000 presidential election was an artificial crisis created because of Bush’s lead of 537 popular votes in Florida. Gore’s nationwide lead was 537,179 popular votes (1,000 times larger). Given the miniscule number of votes that are ever have been changed in recounts (averaging only 274 votes), there would have been no recount in 2000 if the national popular vote had controlled the outcome. Indeed, no one (except perhaps almanac writers and trivia buffs) would have cared that one of the candidates happened to have a 537-vote margin in Florida.
There was a recount, a court case, and reversal of the original outcome in Hawaii in 1960. Kennedy ended up with a 115-vote margin in Hawaii in an election in which his nationwide margin was 118,574.
Samuel Tilden’s 3% lead in 1876 was a solid victory in terms of the national popular vote (equal to Bush’s solid percentage lead in the 2004 election). However, an artificial crisis was created because of the razor-thin margins of 889 votes in South Carolina, 922 in Florida, and 4,807 in Louisiana. No one would have cared who received more votes in these closely divided states if the President had been elected by a nationwide popular vote.
Critics of a national popular vote have argued that there could be an extremely close nationwide count in the future (and historical data show that there would be one such election in every 1,328 years). However, even in that rare situation, there would also almost inevitably be one or more states with razor-thin popular vote margins. Thus, both systems would also have to grapple with the closeness of that kind of election.
It is important to note that the question of recounts only comes to mind in connection with presidential elections because the current system so frequently creates artificial crises and unnecessary disputes. No one has ever suggested that the possibility of a recount constitutes a valid reason why state governors and other officials should not be elected by a popular vote.
77% OF WASHINGTON VOTERS SUPPORT A NATIONAL POPULAR VOTE FOR PRESIDENT IN DECEMBER 2008 POLL
A survey of 800 Washington state voters conducted on December 2-3, 2008 showed 77% overall support for a national popular vote for President.
Support was 77% among independents, 85% among Democrats, and 68% among Republicans.
By age, support was 80% among 18-29 year olds, 76% among 30-45 year olds, 76% among 46-65 year olds, and 78% for those older than 65.
By gender, support was 84% among women and 69% among men.
By race, support was 78% among whites (representing 87% of respondents), 57% among African-Americans (representing 4% of respondents), 60% among Hispanics (representing 1% of respondents), and 78% among Others (representing 7% of respondents).
Barack Obama could only win the Democrat’s nomination with their district plan. In the general election he went to Nebraska and won the urban district, splitting the 40-year “red state” 4-1. Every state with the district plan is a battleground state.
In the District Plan, one electoral vote comes from each congressional district, and the state majority gets a two-elector bonus. California is was largely taken for granted, but with a district plan would be 36D-17R, 65% D versus 63% in the state vote.
Let California and others gain battleground status by fairness to its diverse communities with the District Plan before 2012.
The national popular vote bill is the faithless elector gone wild. There is no General Will in a democratic republic which requires each of us to give up our own point of view, either as individuals or as communities.
The “popular vote” is a fiction. Votes are not “equal” from state to state, not by registration, counting, fraud, or appeals. But the Electoral College cuts through all the potential court cases by allowing proportionate weights mostly based on population.
The widespread disaffection with the Electoral College is really with the state-made unit rule. It was used by political machines to erase economic, ethnic or geographic diversity once expressed in twelve states.
That can be answered by adopting the state-made District Plan.
Dividing a state's electoral votes by congressional district would magnify the worst features of our antiquated Electoral College system of electing the President. What the country needs is a national popular vote to make every person's vote equally important to presidential campaigns.
If the district approach were used nationally, it would less be less fair and accurately reflect the will of the people than the current system. In 2004, Bush won 50.7% of the popular vote, but 59% of the districts. Although Bush lost the national popular vote in 2000, he won 55% of the country's congressional districts.
The district approach would not cause presidential candidates to campaign in a particular state or focus the candidates' attention to issues of concern to the state. Under the winner-take-all rule (whether applied to either districts or states), candidates have no reason to campaign in districts or states where they are comfortably ahead or hopelessly behind. In North Carolina, for example, there are only 2 districts the 13th with a 5% spread and the 2nd with an 8% spread) where the presidential race is competitive. In California, the presidential race is competitive in only 3 of the state's 53 districts. Nationwide, there are only 55 "battleground" districts that are competitive in presidential elections. Under the present deplorable state-level winner-take-all system, two-thirds of the states (including North Carolina and California and Texas) are ignored in presidential elections; however, seven-eighths of the nation's congressional districts would be ignored if a district-level winner-take-all system were used nationally.
the U.S. Constitution does not require that the election laws of all 50 states are identical in virtually every respect. The Equal Protection Clause of the 14th Amendment only restricts a given state in the manner it treats persons “within its jurisdiction.” The Equal Protection Clause imposes no obligation on a given state concerning a “person” in another state who is not “within its [the first state’s] jurisdiction.” State election laws are not identical now nor is there anything in the National Popular Vote compact that would force them to become identical. Indeed, the U.S. Constitution specifically permits diversity of election laws among the states because it explicitly gives the states control over the conduct of presidential elections (article II) as well as congressional elections (article I). The fact is that the Founding Fathers and the U.S. Constitution permits states to conduct elections in varied ways.
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