June 1st, 2020


State giving up its say over who wins the presidency

 Stephen Carter

By Stephen Carter Bloomberg View

Published March 22, 2019

State giving up its say over who wins the presidency
Colorado's new law that awards the state's electoral votes to the candidate who gets the most votes nationwide, rather than in the state, is really a signal that the state's legislature believes that on Election Day we count the wrong things. The law may or may not prove to be constitutional, but its passage suggests that there may be other arenas of life where, in deciding who wins, we also count the wrong things.

Let's start with something really important: baseball. Bunch of frauds. In the seven games of the 1960 World Series, for instance, the New York Yankees scored 55 runs and the Pittsburgh Pirates scored only 27 — but the Pirates won the championship because we count games won rather than runs scored. Well, come on. What's fair about that? The Yankees should plainly have been declared the winners.

And what about college admissions, a subject much in the news since the latest scandal broke? Let's consider the view of those parents who are accused of giving bribes to get their children into top universities. Maybe they were just following Colorado's logic. Maybe they think that it's unfair to distribute scarce slots at highly selective schools according to grades and test scores and activities and recommendations. That's a very local point of view. Let's look at the bigger picture, and give those slots to the richest kids — that is, the kids who've already accumulated the most stuff in life. It can't be fair to reward instead some kid who's done nothing more than star at some local high school.

Or take the Supreme Court of the United States. Why should the votes of nine people in robes decide issues of great national importance? Seems to me there's a good Colorado-style case to be made to put its decisions to a plebiscite. We can't let the silly ideas of the framers of the Constitution trap us into a way of thinking that discounts the will of the majority.

And my goodness — look at the Oscars. Why on earth does the Academy Award for Best Picture go to the film that gets the most votes in the Academy of Motion Picture Arts and Sciences? Just because that group's name is on the award? Rubbish. Colorado's name is on its electoral votes, and Colorado was able to move beyond parochialism. Surely the same sense of fundamental fairness dictates giving the Best Picture award to the movie that rakes in the most money. That's the popular vote.

Or consider the Olympic Games. What a silly way to give out medals! You hold a final race and that's who wins? Based on one event held in one local venue? Get serious, folks. Maybe the gold medals should go to the country that brings the biggest team to the games, the silvers to the country that brings the second-biggest, and so forth. (It'd save a lot of television time, too.)

Finally, think about local elections. Elections for bodies like, say, the Colorado legislature. It makes no sense that membership should be decided by who gets the most votes in some Colorado legislative district. At the very least, the whole state should get to vote on every seat. Better still, the party that gets the most votes statewide should get all the seats.

But, no — best of all, to really be fair? Given that the Colorado law, if it's upheld by the courts, might decide the next national election? Surely the only fair thing is to let the entire country vote on who gets to sit in the local legislature.

And speaking local, if what matters is the view of the majority, why on earth should a legislature decide how a state's electoral votes should be allocated? At the very least, the people of the state should vote on the matter. Or maybe the people of the whole country. Because the point seems to be that going forward, at election time the nation should dictate to Colorado — not Colorado to the nation. If the legislators really mean to do this, they should at least do it right.

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Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America's Wars in the Age of Obama (2011). He is an author and Bloomberg View columnist.