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quite slim. I suspect that it's more a matter the Republicans would like to put it on the ballot, drive the Democrats crazy and make them spend $20 million defeating it."
And that is likely what will happen, which is why it is a no-lose situation for Republicans. In addition, it will divert the time and attention of the Democratic presidential nominee, who will surely make certain that California voters do not let this changing of the rules in the middle of the race slip through without a mighty fight.
Back in 2001, FindLaw columnists Vikram and Akhil Amar discussed Electoral College reform in a three part series, concluding with an explanation of how the states could adopt direct elections and remove the well-recognized weakness of the Electoral College without amending the Constitution. This suggestion did not fall on deaf ears, and state legislators - as well as several former federal legislators - from both political parties have taken action.
After years of preparation, National Popular Vote was formed on February 23, 2006; it is a bi-partisan organization to support the undertaking. National Popular Vote Inc. is a 501(c)(4) non profit corporation whose purpose is "to study, analyze and educate the public regarding its proposal to provide for the nationwide popular election of the President." The organization has drafted legislation, and is coordinating efforts to get its proposed legislation enacted in all states. By proceeding state by state - and it would only take passage in the eleven most populous states to accomplish the goal - the cumbersome and near impossible task of amending the Constitution is avoided.
National Popular Vote's proposed legislation (hereafter, I will refer to both the organization and the legislation as "NPV") is ingenious. It is an agreement between states that represent a majority of the electoral votes. It becomes effective whenever a sufficient combination of the states and the District of Columbia represent an electoral majority - which means that, together, they have 270 electors, constituting a simple majority of the Electoral College. These electors, based on the interstate NPV compact, will agree to vote for the presidential candidate who wins the popular vote nationwide.
"The National Popular Vote bill would guarantee that a presidential candidate who receives the most votes in all 50 states will win the presidency," the NPV explains. Each elector selected under the NPV will vote for the candidate who wins the total popular vote, regardless of the vote within that elector's state.
Notwithstanding Schwarzenegger's veto of the NPV when it was before him last year, there has been steady bipartisan progress throughout the nation, state by state, to move the NPV forward. Polling shows that over 70% of Americans support direct national polling for presidential elections, and would like to avoid the focus on only a few "battleground" states while the interests of the rest of the nation are ignored.
In short, Americans want real reform of the presidential electoral system. No more Bush v. Gore cliffhangers, and no more election years in which a president wins in the Electoral College but loses the popular vote, as Bush did in 2000. For this reason, the coming effort to rig the California vote to assist the Republicans is a perfect opportunity to refocus attention on the need to reform the Electoral College.
Whoever wins the Democratic Party's nomination has a winning issue in campaigning on electoral reform, doing so in a bipartisan manner, and bringing the nation together on the idea of popularly electing our presidents. Since Republicans are going to force this question onto the national agenda with their actions in California, the Democrats can show true leadership by raising awareness of the National Popular Vote, as they work to kill the Presidential Reform Act.
John W. Dean, a FindLaw columnist, is a former counsel to the President.
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