In an anxious election year, Democrats have probably managed to eliminate one of their nightmare scenarios: a repeat of Green Party candidate Jill Stein’s spoiler role in 2016.
In 2020, however, the Green Party ticket will not be on the ballot in two of those crucial swing states because of Democratic-backed legal challenges.
Pennsylvania’s Supreme Court disqualified the Greens, in part, because they faxed certain required filing papers rather than submitting them in person. In Wisconsin, the Greens’ nominating petitions listed the wrong home address for their vice-presidential candidate.
The rules are the rules! In addition to driving home that eternal verity, the Greens’ ouster reminds us that there is no such thing as a national election for president. We have 51 elections for presidential electors, conducted under the authority of each state and the District of Columbia, and each according to their particular rules.
This obvious but insufficiently appreciated reality bears on the debate over the electoral college, whose legitimacy is once again being called into question due to Trump’s victory in 2016 — and due to the likelihood that he’ll lose the popular vote this time, too.
Sixty-one percent of Americans, including the vast majority of Democrats, would abolish the electoral college in favor of a direct presidential election, according to the most recent Gallup poll. Contrary to what many assume, though, popular vote totals that emerge from the 51 elections Nov. 3 will not represent a reliable measurement of national voter sentiment.
This is partly because the electoral college skews candidates’ campaigns, causing them to focus their mobilization efforts more on, say, rural Wisconsin than on populous Los Angeles, contrary to what they’d do in a direct election.
But states also offer voters different choices: The Greens are on 28 state ballots this year, excluded from four and available as a write-in elsewhere. And they have differing voter eligibility requirements: 32 states limit felon voting rights; the rest do not.
In 2020, these variations may be accentuated. As a result of the pandemic, millions plan to vote by mail, and the rules for counting such ballots differ state to state as well.
Ohio will accept those that arrive as many as 10 days after polls close, if postmarked by Election Day; North Carolina allows only three days. In six states, mail-in ballots must be postmarked before Election Day.
The upshot is that it would be far more complicated than commonly supposed to design and implement a valid direct presidential election, even after the pandemic recedes.
A constitutional amendment that eliminated the electoral college but left state-controlled electoral machinery in charge of a direct election would perpetuate existing state-by-state legal variations, and possibly create unintended or unforeseen incentives to accentuate or manipulate them.
This is a challenge for the movement in favor of a National Popular Vote Interstate Compact (NPVIC), which has been gathering strength and has won legislative approval in 15 states and D.C. with a combined 196 electoral votes. The NPVIC, based on the states’ constitutional authority to make mutually beneficial agreements, gives the member states’ electoral votes to the national popular vote winner — no matter how their own residents voted. It would take effect when states with a combined 270 electoral votes have joined.
Yet even if the compact attracted sufficient state support and survived inevitable court tests, it would not provide for uniform election laws. It would therefore award the presidency based on a statistic that was not, strictly speaking, the product of a direct national election for president.
A true direct election, in which every vote carried equal weight, would entail harmonizing the existing maze of state election laws or replacing it with a brand-new body of federal election law, applicable every four years to the contest for president and vice president, our only two national elected offices.
The law would have to set terms and conditions by which candidates qualify for the ballot, a potentially thorny matter if, as many direct-election proposals envision, the new system allows for a runoff among top finishers.
There might also have to be provisions for vetting and hiring officials to supervise polling places around the country, standardizing ballots, testing ballot-counting equipment and, in the event of a dispute, contesting the results — the whole gamut of little details that state laws encompass now. Lawmakers would haggle ferociously over every comma.
The electoral college is hardly the optimal way to choose a national leader, and the case against it deserves serious debate. So does the complexity of devising a better alternative.
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