Presidential Election Could Energize Popular Vote Compact Favored by MA

Our nation is not fated to endure forever the kind of presidential election we are once again slogging through, a contest fought mainly in several swing states while the majority of states, including some of the most populous, are ignored by the candidates.  Nor must the U.S. forever be susceptible to the likes of a divisive incumbent who, knowing he cannot win a majority of all votes in the nation, conducts from the start a cynical, base-stoking campaign aimed at exploiting the quirks of our archaic electoral college system under which the candidate who gets the most votes in a state is awarded all of that state's electoral votes.

NO.

If enough states did what Massachusetts has already done, we could prevent the Electoral College from periodically producing a president who does not earn the most votes nationwide, as happened in 2000 with George W. Bush and in 2016 with Donald Trump, and as happened three times before that. We could accomplish through a series of identical state laws what otherwise could only be done in a much more challenging way, amending the Constitution, which requires the approval of three-quarters (38) of the states.  

The number of electoral votes a state possesses is determined by how many representatives and senators that state has in the Congress.  (With nine reps and two senators, Massachusetts has 11 electoral votes.)  Because every state has two senators, regardless of the size of its population, less populous, predominately rural states like Wyoming exercise disproportionate influence in the Electoral College.  These states will never vote for an amendment doing away with their advantages in the system, a reality that puts the three-quarters bar out of reach.

This post is about the National Popular Vote Interstate Compact and the National Popular Vote bill that is the heart of the Compact.

Massachusetts, 14 other states and the District of Columbia have enacted this legislation, which requires all of the electors in those jurisdictions to cast their ballots for the presidential candidate who wins the national popular vote.  Collectively, they have 196 electoral votes.  

Once enough states with a combined total of 270 electoral votes (a majority of the 538 electoral votes) have enacted the National Popular Vote Bill, the Compact will take effect and the winner-take-all method of awarding states' electoral votes will be rendered inoperative in subsequent presidential elections.  (Note: The winner-take-all methodology is founded in state law, not the Constitution.)

Success for the Compact is potentially close.  If the legislatures and governors of just four particular states adopted popular vote bills, the Compact would accrue 84 more electoral votes and move comfortably past the 270-electoral-vote finish line.  Those states, listed with their respective number of electoral votes, are: Georgia, 16; Pennsylvania, 20; Texas, 38; Wisconsin, 10.

The Compact is an "end-around" the immovable Electoral College.  It would work because Article II, Section 1 of the Constitution gives states exclusive control over how they apportion electoral votes.

Most of us do not recall that then Governor Deval Patrick signed the Massachusetts version of the National Popular Vote bill (House 4156) into law more than 10 years ago -- on August 4, 2010 to be exact.  Both branches of the Massachusetts legislature had passed the bill by wide margins: 113 votes to 35 in the House, and 28 votes to 9 in the Senate.  A 2010 survey cited by the National Popular Vote project indicated that 72% of Massachusetts registered voters supported "the idea that the President of the United States should be the candidate who receives the most popular votes in all 50 states."  

Here's another mostly forgotten fact: 

Although our state's junior senator at the time, John Kerry, lost the popular vote to George W. Bush in the 2004 presidential election by 3,012,166 votes, Kerry came close to victory.  If 59,393 Ohioan votes had gone to Kerry instead of Bush, Kerry would have won the state and its 20 electoral votes.  Those would have put him over the 270 electoral vote mark and given him the presidency. (The electoral vote totals were Bush, 286; Kerry, 251.)

Michael Dukakis is the first high office holder that I remember speaking forcefully for the abolition of the Electoral College.  That was many years ago.  He had a chapter-and-verse argument against it that was as cogent as it was eloquent.  It boiled down to how inimical the College is to the workings of democracy because it results in voters in some states having more power and influence than those in other states and is thus a grievous affront to the concept of equality of all before the law. 

I could get my mind but not my heart around that argument -- until this year, the fourth of the Trump presidency.  I was sentimentally attached to the Electoral College for historic reasons.  The College was given to us by the founding fathers, our nation's wisest generation, and if we abandoned it, I thought, there might be unintended consequences we'd come to regret.  On top of that, I had the feeling there was a kind of a rough justice at work in having the presidency decided by farmers, factory workers, tradespeople, and old folks on Social Security in swing states like Ohio or Pennsylvania.

Trump was elected with 46 percent of the vote and his popularity, unlike that of most presidents, has never exceeded 50 percent in any reputable poll.  He has never shown an interest in expanding his mandate, in appealing to a swath of the electorate beyond the red-hatted MAGA legions.  If he has diverged this year from a narrow strategy of keeping the world's most powerful office by playing the bounces off the weirdly configured walls of the Electoral College ballpark, I haven't seen it.

In 2016, Trump lost the popular vote to Hillary Clinton by 2,864,903.  He could conceivably lose to Joe Biden by twice that amount next Tuesday and get re-elected.  I can't imagine anything that would spur more states to join the National Popular Vote Interstate Compact than a Trump victory of that nature.  If so, 2024 could be the first time  a presidential election was decided by popular vote -- too late, perhaps, to rejuvenate a democracy long malnourished and twisted around by an Electoral College darling.

Our AG's Other Role: Attorney for the Defense of the Planet

Last week, I saw on the State House News Service that Attorney General Maura Healey was releasing a report on her efforts to stop the Trump administration from weakening and/or eliminating multiple environmental protections.  I followed the link and read the report.  It's titled, "Fighting for a Healthy Massachusetts: Stopping Illegal Federal Environmental Attacks and Rollbacks."  You should read it, too, if you haven't already.

A short time later, perusing the New York Times website, I saw this headline: "The Trump Administration Is Reversing Nearly 100 Environmental Rules.  Here's the Full List."  I clicked on it and slowly went through the list.  Here's a particularly nasty sample: early in his term, Trump revoked a rule that prevented coal companies from dumping mining debris into streams.  

My mind flashed to this statement by Trump during his first debate with Joe Biden, a line he repeated near the end of the second presidential debate last week: "I want crystal clean water and air.  I want beautiful, clean air."  

Yes.  

And Vladimir Putin wanted nothing more in 2016 than Hillary to win the presidency.  

Since January of 2017, Trump's first month in office, the Massachusetts AG's office, acting in concert with attorneys general from other states, has initiated more than 200 separate challenges to what Healey describes as "the Trump Administration's attempts to gut environmental protections."

Healey, et al., have gotten results. For example:

In 2017, a lawsuit she was a party to stopped Trump from rolling back restrictions on the use of hydrofluorocarbons, one of the most harmful greenhouse gases.

In 2017-18, Healey (and others) successfully opposed the federal Department of  Energy in court over the department's plan to abandon energy efficiency standards for appliances and industrial equipment.  This action, she estimates, will save U.S. consumers and businesses $12 billion over time.

In "Fighting for a Healthy Massachusetts...," Healey writes: 

"The Trump administration is engaged in a concerted effort to delay, weaken and repeal critical environmental policies.  Unless stopped, that effort will jeopardize decades of progress in cleaning up the environment and protecting human health...

"The Administration is also taking aim at important procedures and safeguards that guide the federal government's decision-making about issues that affect our environment -- for instance, by seeking to undermine the role of scientific research and to eliminate consideration of climate change and health harms.

"On top of that, EPA and other federal agencies have drastically cut back their efforts to enforce the rules still on the books, giving a free pass to violators and creating more work for states."

No doubt the report was timed to hurt Trump's re-election campaign at a point when the presidential race is at its hottest.  Whether it will have an impact is impossible to say.  Unquestionably, it serves as a reminder of how health is on the ballot November 3: ours and our planet's both.

Even if Biden wins, we won't be in the clear environmentally because of how Trump, with Mitch McConnell's help, has installed scores of true conservatives to federal judgeships, including two -- and soon three -- to the Supreme Court.  

There are slowly moving but well funded efforts underway to shatter the basis of federal regulation-making on the ground that the Congress has delegated too much of its lawmaking authority to un-elected bureaucrats.

During the hearings on her nomination to the Supreme Court, Amy Coney Barrett was asked for her views on climate disruption caused by global warming.  "You know," she said, "I'm certainly not a scientist.  I would not say I have firm views on it."  

To another question on the same topic, Barrett replied, "I will not express a view on a matter of public policy, especially one that is politically controversial."

Not just cynical dogs who blog are finding that an ominous dodge by a lawyer advertised as a brilliant intellect.