I have been reading Making Our Democracy Work by U.S. Supreme Court Justice Stephen Breyer (Knopf 2010). One passage may be of particular relevance to the struggle for democracy now underway in many parts of the world from South Sudan to Egypt. It is also a challenge to those in Washington whose reluctance to follow the basic operating principles of a two-party democracy has led to government paralysis. In the 2000 presidential election, Al Gore won the national popular vote. But elections are decided by the electoral votes and everything hinged on Florida. Under Florida law (like most states) the candidate who receives the largest share of state’s popular vote also receives all the state’s electoral votes. In the original count, Bush led Gore by fewer than two thousand votes out of the six million cast, thus triggering an automatic recount. Bush still came out ahead but by a narrower margin and Gore challenged the count in four districts. The Florida Supreme Court then ordered a recount of the entire vote. Bush’s legal team leapt into action and challenged the state’s decision. The U.S. Supreme Court agreed to hear the case and in a highly controversial decision voted by 5 to 4 in Bush’s favor. The process had been complicated by hand counting of machine-uncountable ballots due to various types of voter error. Subsequent studies produced conflicting conclusions on which candidate would have won, had the state been allowed to do a complete recount. For many the Court’s decision was a huge disappointment and many regarded it as unfair. Justice Breyer, who was among the dissenters on the Court, writes: “Whether the decision was right or wrong is not the point here. If I and three other members of the Court thought the decision was very wrong, so did millions of other Americans. For present purposes, however, what is important is what happened next. Gore, the losing candidate, told followers not to attack the legitimacy of the Court’s decision. And despite the great importance of the decision, the strong disagreement about its merits, and the strong feelings about the Court’s intervention, the public, Democrats as well as Republicans, followed the decision. They did so peacefully, with no need for troops… without rocks hurled in the streets, without violent massive protest. The leader of the U.S. Senate Harry Reid, a Democrat, said that the public’s willingness to follow the law as enunciated by the Court constitutes a little-remarked, but the most remarkable, feature of the case. I agree”
In a New York Times commentary on December 13, 2011, Scott Farris reflected on what some observers have called one of the great political speeches in American history: “In many countries, losing candidates do not peacefully accept defeat, and their obstinacy leads to political chaos, riots and sometimes civil war. Gore understood the risks to America from a prolonged dispute over an unresolved election. Our democratic political system works only when the losers give their consent to be governed by the winners. So, on Dec. 13, 2000, Gore chose to begin a process of healing. He did not merely concede, he gave a remarkably upbeat and friendly concession speech and quoted an earlier losing candidate, Stephen Douglas, who pledged to Abraham Lincoln upon losing the 1860 presidential election, ‘Partisan feeling must yield to patriotism. I’m with you, Mr. President, and God bless you.’”
In order to function, democracy requires a loyal opposition which puts country before political partisanship. Al Gore offered a lesson we all will do well to remember.
Because of the state-by-state winner-take-all electoral votes laws (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in each state) in 48 states, a candidate can win the Presidency without winning the most popular votes nationwide. This has occurred in 4 of the nation's 57 (1 in 14 = 7%) presidential elections. The precariousness of the current state-by-state winner-take-all system of awarding electoral votes is highlighted by the fact that a shift of a few thousand voters in one or two states would have elected the second-place candidate in 4 of the 15 presidential elections since World War II. Near misses are now frequently common. There have been 7 consecutive non-landslide presidential elections (1988, 1992, 1996, 2000, 2004, 2008, and 2012). 537 popular votes won Florida and the White House for Bush in 2000 despite Gore's lead of 537,179 (1,000 times more) popular votes nationwide. A shift of 60,000 voters in Ohio in 2004 would have defeated President Bush despite his nationwide lead of over 3 million votes. In 2012, a shift of 214,733 popular votes in four states would have elected Mitt Romney, despite President Obama’s nationwide lead of 4,966,945 votes.
Presidential elections don’t have to be this way.
The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in the country, by replacing state winner-take-all laws.
The bill changes the way electoral votes are awarded by states in the Electoral College, instead of the current 48 state-by-state winner-take-all system (not mentioned in the Constitution, but later enacted by states).
Every vote, everywhere, would be politically relevant and equal in every election. Every vote would be included in the state counts and national count.
When states with a combined total of at least 270 electoral votes enact the bill, the candidate with the most popular votes in all 50 states and DC would get the needed majority of 270+ electoral votes from the enacting states. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes.
The bill uses the power given to each state in the Constitution to change how they award their electoral votes for President. Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have been by state legislative action.
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).
Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls
in recent or past closely divided Battleground states: CO – 68%, FL – 78%, IA –75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%;
in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%;
in Southern and Border states: AR – 80%, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and
in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%.
Americans believe that the candidate who receives the most votes should win.
The bill has passed 33 state legislative chambers in 22 rural, small, medium, and large states with 250 electoral votes. The bill has been enacted by 10 jurisdictions with 136 electoral votes – 50.4% of the 270 necessary to go into effect.
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