Popular Vote? Not Yet.

By David Lublin
Monday, July 16, 2007

The prospect of a serious independent presidential bid by New York Mayor Michael Bloomberg underscores the importance of electoral college reform. In a three-way race, most Americans would probably expect the plurality winner to prevail, but the electoral college renders that outcome uncertain, especially if the election were close.

For this and other reasons, direct election of the president sounds like a no-brainer. It would count the ballots of all voters equally, whereas the much-pilloried electoral college gives greater weight to ballots in small states even as it encourages candidates to focus on large states that award lots of electoral votes.

This spring Maryland became the first state to adopt a proposed interstate compact committing participating states to cast their electoral votes for the popular-vote winner. Fixing yesterday's problem, however, may ensure tomorrow's crisis. Replacing the electoral college with a national popular vote may be a good idea, but the compact Maryland adopted has critical flaws. Many issues still need to be addressed.

Much debate over the plan has centered on whether it is constitutional. Opponents such as columnist George F. Will attack it as an unseemly end run around the Constitution. Yet the Constitution clearly gives each state the power to decide how its electors are chosen. If Maryland wants to award its electors to the winner of the national popular vote, it can. Remember that in 2000 serious consideration was given to having Florida's legislature enact a law designating the state's electors to George W. Bush.

The compact bans those states that sign on from precipitous withdrawals, but it has no backup provisions should states pull out anyway. And such a ban may not survive constitutional scrutiny. In the event of sudden withdrawals by other states, Maryland could, in theory, pass a law directing its electors to vote a certain way. But what if the governor refused to convene the General Assembly because not doing so would be to his party's advantage?

And even though the compact would create a national contest for the popular vote, the election would remain 51 separate contests; the same sets of presidential and vice presidential candidates do not appear on the ballot everywhere because ballot-access requirements vary widely across states. For example, Ralph Nader's running mate in 2004 was ineligible under California law and did not appear on the California ballot.

By choice or necessity, presidential candidates could have different running mates in different states. The legislation Maryland adopted requires that any votes cast in any state for the presidential or vice presidential candidate count toward the total for the slate, even if one of their names did not appear on the ballot. This solves one problem but creates another: In 2004, all votes cast for Nader in California would have counted toward his national tally. So these votes would have been counted for his vice presidential candidate even though Californians did not vote for him.

The plan to create a national popular vote might penalize candidates with a serious shot at breaking the two-party duopoly. Like Nader, Bloomberg may find it hard to get on the ballots of all 50 states. Bloomberg could still win an electoral college majority even if he failed to appear on every ballot. However, winning the popular vote is a lot harder for a third-party candidate who doesn't appear on every ballot.

Close elections would become a national nightmare instead of challenges in just one or two states. The parties and the media would find it difficult to monitor recounts and litigation around the country. Unlike tallies in other nations, these counts are largely conducted by partisan officials, something not likely to inspire trust. Compact proponents say the chances of a close election are slimmer in a national contest. Yet the standards for a close election would be much more lax. We might not even be able to have a national recount. All existing recount laws were designed to address elections within states. Compact states cannot compel other states to participate. And many states focus on figuring out who won rather than the accuracy of the totals.

Moreover, the problems encountered in Ohio in 2004 and during the Maryland primary last year indicate that the nation's electoral machinery still needs major improvement. Our election administration is not up to the job of a single, nationwide vote count.

These concerns might seem technical. But the 2000 election demonstrated the importance of legal details and the ease with which unlikely events can occur. Americans have seen that there is no substitute for clear, well-conceived laws and careful administration when it comes to elections. National popular election of the president may eventually be viable. But let's get it right first.

The writer is professor of government in the School of Public Affairs at American University.

© 2007 The Washington Post Company