08/29/2010 05:12 am ET | Updated May 25, 2011

A Compact Model

I'm undecided about Michael Uhlmann's article in today's New York Post, RX for National Vote Count Chaos.

I can't decided whether it is a product of blissful ignorance or willful stupidity.

Uhlmann is upset that the NY State Senate passed the "National Popular Vote Plan," an idea created by a group of academics that has lately caught fire.

The Plan would implement a de facto direct election of the President of the United States. Under the plan, the Electoral College would still exist, but be rendered into a meaningless formality. The President would be directly elected indirectly.

The beauty of the plan is it would bypass the Constitutional Amendment process (2/3rds of each house of Congress and both houses of the legislatures of 3/4th of the States). It would do this by means of an Interstate Compact. Hundreds of such compacts exist--for instance, The Port Authority of New York and New Jersey is an Interstate Compact.

The proposed compact would be considered enacted when enough states signed onto it to account for 270 electoral votes; the number needed to win a Presidential election. The signing states would agree to cast all their electoral votes for the winner of the nationwide popular vote. As such, whoever got the most votes nationally would get the electoral votes of all the state in the compact in one solid bloc, and would be elected President.

This alarms Uhlmann no end.

He predicts that in any close presidential contest, some state in the compact whose choice lost the popular vote would immediately "seek to withdraw from the interstate compact and appoint a new set of electors" committed to the winner in their state.


First off, the Presidential candidates would have to assume they were fighting by the new rules. They would no longer confine their campaigning to the few "battleground" states, but instead would work to maximize their vote nationally. The whole nation would be energized as never before. Every vote, everywhere, would count.

Under such circumstances, every candidate would inevitably be asked whether they would respect the new arrangement, or try to undermine it. They would be asked if they would decline a victory won by undermining the new arrangement. They would be boxed in. Those who said they would not respect the results of the new arrangement would be at a severe disadvantage in a contest run under those rules. Given that those rules would be at least an even bet to prevail, and probably much better, it would be far too risky not to agree to abide by them

Most of the other objections by Uhlmann's are not to the Interstate Compact process, but to direct election itself. Of course, he does not put it that way, because it's more fun for a right wing shill to rail against an elitist scheme created by a bunch of pointy headed intellectuals than it is to attack an end result that is the definition of populism.

But Uhlmann seems most outraged that under this system, the 11 largest states could theoretically change the way a President was elected by bypassing the Constitution.

This is just pure, unadulterated ignorance.

Those states wouldn't be bypassing the Constitution, they would be using it.

But, you say, the manner in which we elect our presidents is too big a question to be decided in such a manner. The Founding Fathers would turn over in their graves.


It's already been done. And at the time, Adams and Jefferson were all still alive. Madison and Jay were still alive. True, Hamilton was dead, but the guy who killed him, Aaron Burr, was still alive.

Article II, Section Two of the Constitution says: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."

And that is all it says about how electors are chosen.

State Legislatures had, and still have, the power to choose Presidential Electors any damned way they please.

And daffy local nuttiness persisted into modern times.

In the Presidential Election of 1960, the Alabama Democrats nominated in their primary, five electors committed to support the candidate of the national party and six Dixiecrat Crackers. The state law then provided that each elector was voted upon individually, and all eleven Democrats won the November election, the Crackers by substantially larger margins. The crackers then cast their votes for Senator Harry Byrd (no relation) of Virginia, the others for John Kennedy.

Historians have been puzzled how to attribute the 1960 Alabama Presidential votes in the national count. Traditionally, in an election where electors are balloted individually, historians assign a candidate the popular vote of the elector from his party who received the most votes. The highest Republican elector received 237,981 votes (over 7,000 more than the lowest), so Richard Nixon is usually assigned 237,981 popular votes from Alabama. The actual number of popular votes received by Kennedy is more difficult to allocate. His most popular elector got 318,303 votes, the top Cracker got 324,050 votes; the Cracker all outpolled the Kennedy electors. Most historians count the votes for each group of Democratic electors separately, assigning Kennedy and the "Independent Electors" the total for their slate's highest vote getter, but that means they get an Alabama vote total which far exceeds the number of voters in that election.

If, however, we allocated the 1960 Alabama Presidential vote fairly, by taking the 324,050 figure, and awarding Kennedy 5/11ths and the Crackers 6/11ths, then THE WINNER OF THE NATIONAL POPULAR VOTE IN 1960 WAS RICHARD NIXON!

And you thought you knew your history.

More to the point, in the first nine Presidential elections, there really was no election. Most of the States' legislatures chose to elect their State's electors themselves, rather than by consulting the voters.

This produced some interesting results. Most interesting was that, in many State, elections for the legislature became proxy elections for the Presidency.

This would seem a great way to fuck with Dov Hikind's mind.

Being clever, Aaron Burr of New York, the Democratic-Republican Party's 1800 candidate for the Vice Presidency, found a way to shave the dice; instead of running local no-name bozos for local seats, the way the Federalists did, the NYS DR Party ran all its marquee name heroes, including former Governors and US Senators, for local seats in the State Assembly.

In the election of 1800, the Vice Presidential nominee of the Democratic-Republican Party's name appeared on the ballot in just one small constituency, as a candidate for the New York State Assembly.

The scheme worked and the DRs took New York, and with it, the White House.

Over time, more and more states chose their electors by popular election. In 1824, for the first time, a (pretty overwhelming) majority did so. Eventually, only the nullifying yahoos of (you guessed it) South Carolina held out, and eventually even they capitulated.

We had a whole new system of electing a president, without any Constitutional Amendment or vote of Congress; just some State by State action.

Why not do it again?

It's American as apple pie.

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