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Winner-take-all can elect a second-place president

John R. Koza // Published July 9, 2009 in San Diego Union-Tribune

The current system of electing the president has numerous shortcomings. The issues discussed during presidential campaigns are distorted because candidates concentrate on the issues relevant to the closely divided “battleground” states. A second-place candidate can win the presidency. Civic participation is significantly depressed in non-battleground states. Every vote is not equal. Also, first-term presidents govern with an eye on the battleground states necessary for their reelection, thereby further distorting public policy.

All five of these shortcomings are caused by “winner-take-all” laws that were enacted by the states long after the U.S. Constitution was written. These laws award all of a state's electoral votes to the presidential candidate who receives the most popular votes in each individual state.

Because of the use of the winner-take-all rule by most states, presidential candidates have no reason to poll, visit, advertise, organize, or pay attention to voter concerns in states where they are comfortably ahead or hopelessly behind. In both the 2004 and 2008 presidential elections, candidates concentrated over two-thirds of their campaign visits and ad money in just six closely divided “battleground” states. More than 98 percent of their attention went to just 15 states. The result was that voters in two thirds of the states, including California, were passive spectators to the presidential election.

Another shortcoming of the current system is that a candidate can win the presidency without receiving the most popular votes nationwide. There have been four “wrong winner” elections out of the nation's 56 presidential elections. This is a failure rate of 1 in 14. But because half of American presidential elections are landslides (i.e., a margin of more than 10 percent), the failure rate is actually 1 in 7 among non-landslide elections. Given that we have been living in an era of close presidential elections since 1988, it should not be surprising that there has been one “wrong winner” election in the past six elections. Moreover, a shift of a handful of votes in one or two states would have elected the second-place candidate in five of the last 13 presidential elections. For example, a shift of 60,000 votes in Ohio in 2004 would have elected John Kerry, even though President George W. Bush was ahead by 3.5 million votes nationwide.

The current system of electing the president depresses civic participation. In 2008, voter turnout in the battleground states was 67 percent, while turnout in the “spectator” states was 61 percent. Voters in spectator states, including California, have figured out that their votes don't matter.

Furthermore, every vote is not equal in presidential elections. For example, Al Gore won five electoral votes by carrying New Mexico by 365 popular votes in 2000, whereas George W. Bush won five electoral votes by carrying Utah by 312,043 popular votes — an 855-to-1 disparity in the importance of a vote between two equal-sized states.

The winner-take-all rule also strongly affects the way that a first-term president governs. President George W. Bush, a staunch free-trade advocate, supported steel quotas while eyeing battleground states such as Pennsylvania, Ohio, and West Virginia. The Washington Post recently reported that most of the 16 states that President Obama visited in the five months since his inauguration are likely battleground states in 2012. In bi-partisan recognition of political reality, Ari Fleischer, Bush's first press secretary, defended Obama by saying “If people don't like it, they can move from a safe state to a swing state and see their president more.”

Why should two-thirds of the population of the United States be required to move in order to get their president to pay attention to them?

The method of electing the president should be changed so that every vote is equal. The candidate who receives the most popular votes in all 50 states and the District of Columbia should be guaranteed the presidency.

The U.S. Constitution gives the states exclusive and plenary control over the manner of awarding their electoral votes. The winner-take-all rule is not in the Constitution. It was not the choice of the Founders (having been used by only 3 states in the nation's first presidential election in 1789). It became prevalent in the 1830's as each state's dominant political party recognized that it could stifle the voice of the state's minority by awarding all of the state's electoral votes to the candidate who received the most popular votes in the state. The fact that Maine and Nebraska today award electoral votes by congressional district is a reminder that state legislation governs the manner of awarding a state's electoral votes. An amendment to the U.S. Constitution is not required to change the way the president is elected.

The National Popular Vote bill is state-level legislation that would guarantee the presidency to the candidate who receives the most popular votes in all 50 states (and the District of Columbia). Under the National Popular Vote bill, all the electoral votes from the enacting states would be awarded, as a bloc, to the presidential candidate who receives the most popular votes in all 50 states (and D.C.). The bill would take effect only when enacted by states possessing a majority of the electoral votes — that is, enough electoral votes to elect a president (270 of 538). The National Popular Vote bill retains the Electoral College. The bill guarantees that the Electoral College reflects the will of the people in all 50 states (and D.C.).

In the last three years, the National Popular Vote bill has been debated, and approved, by 29 legislative chambers in 19 states, including Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, and Washington.

The bill has been enacted into law by states possessing 61 electoral votes — 23 percent of the 270 necessary to activate the law (Hawaii, Washington, Illinois, New Jersey, and Maryland).

The National Popular Vote bill has sponsors in all 50 states and has been endorsed by 1,777 state legislators.

State-level polls show strong support for a national popular vote in battleground states, spectator states, small states, Southern and border states, and elsewhere. Support is strong among Republican voters, Democratic voters, and independent voters, as well as every demographic group surveyed. For example, support is 70 percent in California, Utah, Ohio, and Missouri. It's between 78 percent and 81 percent in Pennsylvania, Florida, Arkansas, Kentucky, and Oklahoma.

A national popular vote would improve several additional aspects of the electoral system.

Unnecessary recounts and artificial crises are regularly created by the current state-by-state system of electing the president. The historically documented chance of a recount in an American election is 1-in-332. If the president were elected from a single nationwide pool of votes, one would expect a recount once in 332 elections, or once in every 1,328 years. However, under the current state-by-state winner-take-all-rule, each presidential election is really 51 separate state-level elections. A problem in any one state can create national turmoil. Because the nation's 56 presidential elections have actually been 2,084 separate elections, it should not be a surprise that there have been five seriously disputed statewide counts in 56 presidential elections. The most recent artificial crisis was in 2000, when Bush had a lead of 537 popular votes in the state of Florida while Gore had a nationwide lead of 537,179 popular votes (1,000 times larger). Given the minuscule number of votes that are ever changed in recounts (averaging only 274 votes in statewide recounts), there would have been no recount anywhere in 2000 if the 537,179-vote national popular vote total had controlled the outcome.

In Hawaii in 1960, there was a recount, litigation, and reversal of the original outcome in that state. In earlier years, there were disputed counts because of the razor-thin margins of 889 votes in South Carolina, 922 in Florida, and 4,807 in Louisiana in the disputed Tilden-Hayes election. One disputed count every 1,328 years is better than five disputed counts in 220 years. The current state-by-state winner-take-all system is not a firewall that helpfully isolates recounts to particular states. Instead, it has repeatedly been the cause of unnecessary fires. To the extent that concern about handling recounts should be considered in deciding how the president is elected, a national popular vote is preferable because it would drastically reduce the possibility of a disputed election.

There is far more fragmentation of the vote under the current state-by-state winner-take-all system than in elections in which the winner is the candidate who receives the most popular votes. Under the state-by-state system, minor-party candidates have significantly affected the outcome in six out of the last 16 presidential elections. Segregationists such as Strom Thurmond (1948) or George Wallace (1968) won electoral votes in numerous Southern states. Candidates such as John Anderson (1980), Ross Perot (1992 and 1996), and Ralph Nader (2000) affected the national outcome by switching electoral votes in numerous critical states. The state-by-state system encourages so many third-party candidacies because such candidates have 51 separate opportunities to shift a state's electoral votes from one major party to another. In contrast, when the chief executives of state governments are elected by ordinary plurality voting, there is no such proliferation of candidates or fragmentation of the vote. Since 1948, 91 percent of the governors were elected with more than 50 percent of the vote (compared to only 62 percent of the winning presidential candidates). Ordinary plurality voting encourages the formation of broad coalitions of groups that join together in order to win the most votes because a vote cast for a splinter candidate generally produces the politically counter-productive effect of helping the major-party candidate whose positions are diametrically opposite to the voter's views.

A national popular vote would give small states a voice in presidential elections. Small states are the most disadvantaged group of states under the current system because almost all of them are one-party states in presidential elections. In the last six presidential elections, six of the 13 least populous states have almost always voted Republican (Alaska, Idaho, Montana, Wyoming, North Dakota, and South Dakota). Six others (Hawaii, Vermont, Maine, Rhode Island, Delaware, and the District of Columbia) have regularly gone Democratic. The 12 smallest non-competitive states have a combined population of 11.4 million. Because of the bonus of two electoral votes that every state receives, these 12 small states have 40 electoral votes. Coincidentally, Ohio has 11.4 million people. Ohio has “only” 20 electoral votes. The battleground state of Ohio received 62 of the 300 post-convention visits in the 2008 presidential election. However, the 12 non-competitive small states (with their 40 electoral votes) were politically irrelevant, and together received only two visits. The winner-take-all rule makes the 11 million people in the closely divided battleground state of Ohio critical in presidential races, while rendering the 11 million people in the nation's smallest states irrelevant. A national popular vote would make every vote equal throughout the United States. A national popular vote would make a vote cast in a small state just as important as a vote cast in Ohio.

The voice of every American's vote should matter in selecting the president. The candidate who receives the most votes in all 50 states (and the federal district) should become the president. There is a good possibility that sufficient states will enact the National Popular Vote bill to bring it into effect for the 2012 presidential election.

Koza was the originator of the proposal for achieving a national popular vote for president and is chair of National Popular Vote organization (www.NationalPopularVote.com). He was also the lead author of “Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote”.