America's Unwritten Constitution: The Precedents and Principles We Live By (74 page)

In 2004, I argued that a rule widening presidential eligibility would not only vindicate the Founders’ general principles of immigrant equality but also nicely fit the trajectory of post-Founding amendments. By treating naturalized citizens as the full equals of natural-born citizens, and by allowing a person of obvious merit to overcome a legal impediment created merely because he or she was born in the wrong place at the wrong time or to the wrong parents, the proposed amendment would widen and deepen the grand principle of birth equality at the heart of the Fourteenth Amendment. By making a new class of Americans eligible to be president, the proposed amendment would also echo and extend the spirit of the Fifteenth
and Nineteenth Amendments, which entitled blacks and women not merely to vote on equal terms on Election Day but also to be voted for on equal terms and to vote and veto equally in matters of governance.

In short, I argued in 2004, and I continue to believe today, that what the suffragist movement did for women, America should now do for naturalized citizens. This country should be more than a land where everyone can grow up to be… governor.

THE VERY STRUCTURE
of these 2004 hearings highlighted a basic teaching of America’s Constitution—namely, that successful amendments must typically win bipartisan support. The sponsor of Senate Joint Resolution 15 was a leading conservative Republican, Utah Senator Orrin Hatch, who had enlisted the formal support of leading liberal Democrats such as the House Judiciary Committee’s ranking minority member, John Conyers. Another leading liberal Democrat, Vermont Senator Patrick Leahy, who has jousted with Senator Hatch on many issues over many years, had this to say about the proposed Hatch Amendment in the hearings: “I believe this amendment is far worthier of consideration than the amendments the Chairman has made a priority during this Congress—the Federal Marriage Amendment [banning gay marriage] and the Flag Desecration Amendment [allowing the criminalization of flag-burning].”

In turn, Hatch himself reached across the aisle in his own testimony, noting that the current rules of presidential eligibility had excluded highly credentialed patriots of both parties—for example, the Republican Henry Kissinger and the Democrat Madeleine Albright. Although Hatch did not explicitly refer to the proverbial elephant in the room—foreign-born Republican Arnold Schwarzenegger, who had recently been elected governor of California, the home base of three of the seven most recent Republican presidents—the senator did mention and quote a rising foreign-born Democratic star: “Michigan Governor Jennifer Granholm, who was born in Canada, also supports this amendment. She explained: ‘You can’t choose where you are born, but you can choose where you live and where you swear your allegiance.’”

Precisely because America’s Constitution is a partisan Constitution—indeed, a bipartisan Constitution, with two entrenched parties, neither of
which typically has enough votes in Congress and the states to push an amendment through on its own—successful constitutional amendments in the foreseeable future must follow the bipartisan strategy exemplified by Senator Hatch in 2004.

Nothing has yet become of Hatch’s proposed amendment, perhaps because the politics of immigration have become more radioactive over the past eight years, especially within Hatch’s own Republican Party, and because the election of Barack Obama in 2008 intensified anxiety in certain segments of Hatch’s party about possibly nefarious foreign influences over American presidential elections. (Obama’s Kenyan father was not an American citizen when the future president was born in the state of Hawaii in 1961.) But the long-term prospects for an eventual amendment along the lines of Hatch’s proposal remain good, because it is easy to imagine a future moment when both parties will find it politically advantageous to compete for the allegiance of immigrants and their allies, just as there were many past moments when both parties found it in their interest to demonstrate their liberality toward women and blacks.

CAREFUL STUDY OF OUR EXISTING CONSTITUTION
and its history can also help us to identify areas where dramatic changes can occur even without formal textual amendments.

For example, the manner of selecting presidents over the years has shifted substantially in various ways not explicitly codified in the written Constitution. As late as 1820, it was a relatively common practice for state legislatures to pick presidential electors themselves, without soliciting the presidential preferences of the state’s electorate. Today, it is almost impossible to imagine a state doing this, but this sea change in actual practice has come about as a result of ordinary laws and established customs rather than a formal textual amendment. Similarly, long before the Seventeenth Amendment formally decreed that state voters would directly elect United States senators, political parties and states had begun to devise a series of subconstitutional mechanisms approximating this result.
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With these two examples of past informal change in mind, on December 28, 2001, I posted an essay on a website in order to illustrate just how much additional change in America’s current system of presidential election is similarly imaginable in the absence of a formal textual amendment. The essay was not much more than a theoretical daydream—a “thought experiment”—but several years later, a variant of this daydream, the National Popular Vote (NPV) Initiative, actually began to take shape as part of a serious national political movement to reform the electoral college. As I now write these words in mid-2012, eight states and the District of Columbia, collectively comprising 132 electoral votes—49 percent of the magic 270 needed to activate the plan—have formally ratified the NPV Initiative.
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What follows is a revised version of my 2001 daydream, updated to take account of the intervening census of 2010.

IMAGINE THIS:
Americans could pick the president by direct national election, in 2016, 2020, and beyond, without formally amending our Constitution.

A small number of key states—eleven, to be precise—would suffice to put a direct-election system into effect. Alternatively, an even smaller number of key persons—four, to be exact—could approximate the same result, with a little help from their friends.

Begin with the key-state scenario. Article II of the Constitution says that “[e]ach state shall appoint, in such Manner as the Legislature thereof may direct,” its allotted share of presidential electors. Each state’s legislature thus has discretion to direct how state electors are appointed. The legislature is theoretically free simply to name these electors itself. It is likewise free to direct by law that electors be chosen by direct popular state vote, winner-take-all. This is what almost all states do today.

So, too, each state legislature is free to direct that its state electors be chosen by direct popular national vote. Each state could thus pass the
following statute: “This state shall choose a slate of electors loyal to the presidential candidate who wins the national popular vote.” The eleven most populous states together now have 270 electoral votes, exactly the majority needed to win (out of a total of 538). Thus, if all eleven passed this statute, the presidency would go to the candidate who won the national popular vote.

For those who are counting, the eleven states are California (with 55 electoral votes), Texas (38), New York (29), Florida (29), Pennsylvania (20), Illinois (20), Ohio (18), Michigan (16), Georgia (16), North Carolina (15), and New Jersey (14). There is nothing magical about these eleven states; advocates of direct national election need not draw the poker equivalent of a royal flush. If some of the big eleven were to opt out, their places could be filled by any combination of smaller states with as many (or more) total electoral votes. The number eleven is highlighted merely to illustrate how few states might be needed, in theory, to effectuate direct national election.

It’s worth pausing to let this soak in. Under the Constitution’s Article V, a constitutional amendment providing for direct national election would as a practical matter require two-thirds support in the House of Representatives, a two-thirds vote in the Senate, and the further support of thirty-eight state legislatures. Thus, under the Constitution, any thirteen states—even the thirteen tiniest—could block an Article V amendment. In contrast, our hypothetical plan could succeed even if as many as thirty-nine states and Congress (which directs how the District of Columbia’s three electors are to be chosen) opted out.

If the eleven biggest states were to pass our law, an odd theoretical possibility would arise: A candidate could win the presidency, by winning the national popular vote, even if he or she lost in every one of these big states! (Imagine a scenario where the candidate narrowly loses in each of these states, but wins decisively most other places.) Should this theoretical possibility deter big states from passing this law?

After all, the current electoral-college landscape reflects an effort by virtually every state to maximize its own clout by awarding all of its electoral votes to the candidate who wins the state, rather than dividing its electoral votes proportionately among candidates based on their percentage shares of the statewide popular vote. Take Pennsylvania, with its twenty electoral
votes. The Keystone State has traditionally been a “battleground” jurisdiction in the presidential sweepstakes, a state in which one party rarely bests the other by a wide margin. A proportional-voting Pennsylvania would likely have a maximum of four electoral votes truly at stake—the difference between a 12–8 blowout victory and an 8–12 blowout defeat. This would make Pennsylvania no more important than a tiny winner-take-all state like Rhode Island (offering either a 4–0 win or a 0–4 defeat). A winner-take-all Pennsylvania means that not four but twenty electoral votes are at stake, so candidates must pay more attention to the state. For Pennsylvania to abandon winner-take-all when Rhode Island and almost all other states are retaining it would be the electoral equivalent of unilateral disarmament.

A similar concern might discourage Pennsylvania from unilaterally embracing our envisioned national-popular-vote law. This law, too, is a form of unilateral disarmament, telling a candidate not to worry about winning votes in Pennsylvania. Indeed, a candidate could lose Pennsylvania’s popular vote badly and still get all of its electoral votes by winning nationwide. Even worse, Pennsylvania would be unilaterally disarming with no assurance that the presidency would in fact go to the national-popular-vote winner. Acting alone, Pennsylvania cannot guarantee that its twenty electoral votes would be enough to put the national-popular-vote winner at or over the 270 electoral-vote mark.

But Pennsylvania need not act unilaterally. Its law could provide that its electors will go to the national-popular-vote winner if and only if enough other states follow suit. Until that happens, Pennsylvania and every other likeminded state could continue to follow current (self-aggrandizing) methods of choosing electors. Thus, our revised model state law would look something like this: “This state shall choose a slate of electors loyal to the presidential candidate who wins the national popular vote, if and only if other states, whose electors taken together with this state’s electors total at least 270, also enact laws guaranteeing that they will choose electors loyal to the presidential candidate who wins the national popular vote.”

Acting in this coordinated way, a consortium of states with electoral votes adding up to 270 would not really be disarming themselves. Although it would be theoretically possible for a candidate to win a national vote while losing in all (or almost all) of the consortium states, this is an
unrealistic scenario. In general, candidates would pay attention to consortium states collectively comprising roughly half or more of the American electorate. As a practical matter, one couldn’t win nationally without winning, or at least coming very close to winning, lots of states.

Of course, any coordinated state-law effort would require specifying key issues: Majority rule or plurality rule? How should recounts and challenges be handled? It would be hard to rely completely on the laws and courts of each state, many of which might not be part of the cooperating group of states. For example, the national vote might be close even though the state vote in some noncooperating state was not, and that state might refuse to allow a state recount. Indeed, a noncooperating state might theoretically try to sabotage the system by refusing to allow its citizens to vote for president! What if some state let seventeen-year-olds vote in an effort to count for more than its fair share of the national total? Also, even if all states generally behaved themselves, wouldn’t the considerable variation in actual state election administration—for example, with some states allowing easy registration and absentee voting and other states adopting much stricter rules—mock the reformist idea of genuine equality for all American votes and voters? And what about Americans who live abroad or in the federal territories?

These questions suggest an even more mind-boggling prospect: Our national-vote system need not piggyback on the laws and machinery of noncooperating states at all! Let these noncooperating states hold their own elections, but so long as the number of their electors adds up to less than 270, these elections would be sideshows. The cooperating states could define their own rules for a uniform “National Presidential Vote” system. In that case, our law would read something like this: “Section 1. This state shall choose a slate of electors loyal to the presidential candidate who wins the ‘National Presidential Vote,’ if and only if other states, whose electors taken together with this state’s electors total at least 270, also enact laws guaranteeing that they will choose electors loyal to the presidential candidate who wins the ‘National Presidential Vote.’ Section 2. The ‘National Presidential Vote’ shall be administered as follows.…”