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August 19 2019

Maine votes to retain the Electoral College

by Jennifer C. Braceras

The Maine state legislature recently defeated a bill that would have changed the way that state allocates it electoral votes in presidential elections. Under the bill, Maine's four electors would have been required to cast their ballots for the winner of the nationwide popular vote for president, even if Maine voters supported somebody else.

In this episode of SheThinks, IWF Senior Fellow Jennifer Braceras talks with two Maine legislators who helped defeat the measure.

Jennifer B.:
Hi everyone. I'm Jennifer Braceras, Director of IWF Center for Law and Liberty, and we are once again talking about the Electoral College. In an earlier podcast, I had the great pleasure of speaking with historian and legal expert, Tara Ross, about why our founding fathers chose this state-by-state method of electing our president.

Jennifer B.:
Today, we'll be talking about current efforts to replace this system with one massive national popular vote. I am joined by two state legislators from Maine. One Democrat, and one Republican, who recently participated in a vote, or several votes actually, on whether their states should abandon the Electoral College. Both of our guests today, Representative Heidi Samson, a Republican, and Representative Janice Cooper, a Democrat, voted against the measure. Welcome Representatives Samson and Cooper.

Heidi Sampson:
Thank you. Nice to be here. Thanks.

Jennifer B.:
Representative Samson, could you tell us a little bit about the current efforts to get rid of the Electoral College?

Heidi Sampson:
Historically, the Constitution clearly lays out what we're supposed to be doing. Every state constitution aligns with the federal constitution on this issue. And there have been efforts over the years to try and amend the constitution, but that has failed. So this national popular vote effort is essentially an end run around every institution that essentially will hijack the electoral college process.

Jennifer B.:
And how will it do that? Can you explain how exactly what they're trying to do?

Heidi Sampson:
Sure.

Jennifer B.:
You say that people who are opposed to the electoral college have have tried and failed to amend the constitution. So if that hasn't worked, how can they, how can they possibly get rid of the electoral college without amending the constitution?

Heidi Sampson:
Right. So this ... what they're trying to do with this effort, is to get as many States to commit to becoming a signatore to an interstate compact with all the other willing States. And they're looking at all 50 States, including the district of Columbia. And the goal is to acquire the majority of the electoral votes, to elect a president. Which is to 270 of the 528 possible votes. Trying to basically do this math game, get as many States to sign on to this interstate compact that would ... It would get us to the 270 and essentially be an end run to the state's constitution in order to elect the president.

Jennifer B.:
So if I have this right, States that agree to sign on to the compact are agreeing to give all of their electoral votes to the winner of the nationwide popular vote, even if a majority of voters in that particular state voted for somebody else. Is that right?

Heidi Sampson:
Correct, correct.

Jennifer B.:
So I know a number of States have voted already to sign this compact. I think at this point there are 15 States plus the District of Columbia who have agreed to bind themselves in future elections to the winner of the nationwide popular vote, irrespective of what their voters want. And this recently came up in Maine and, I'm wondering if you could tell us what happened. Cause I know there was a lot of back and forth that came up for several votes and and ultimately it failed. But I'm wondering if you could tell us a little bit about the background in your state and, you know who initiated it and and what happened in your state legislature? Lature.

Heidi Sampson:
Okay. In Maine, our Senate president introduced this piece of legislation, Senator Troy Jackson. And he's a Democrat from way up North in Maine. And so this started in the Senate and the Senate was strongly ... Because there are a majority Democrat members in the Senate, they pass it out of the Senate pretty easily because the Republicans didn't have, you know, much.There wasn't a whole lot of push back from other Democrats on this issue in a Senate. Came to the house, again the house is majority Democrat. And it was interesting that we did have a number of ... our initial vote did not align with the Senate vote.

Heidi Sampson:
So you have to, in order for bill to pass, you have to have both the Senate in the house have to agree on the same exact language. So when it went back to the Senate, they had to, you know, they had to ... They sat on it for quite awhile and then tried to reintroduce it and it went back and forth and, and we got to watch. Really, it was the house Democrats being very meticulously picked off to flip their votes. And so we had another vote. And, and actually at this point, I'm not even sure how many times, I think it went back and forth. Like I think we voted on it four times.

Jennifer B.:
Wow.

Heidi Sampson:
And then in the end, it was by a very narrow margin that we were able to defeat this measure. Which meant that there were a number of Democrats that actually came along with the Republicans to defeat this measure.

Jennifer B.:
Interesting. And one of them is joining us today, representative Cooper. So why do you think ... Well first of all, do you think this measure will be brought up again in future legislative sessions or is it, is it completely dead in Maine?

Heidi Sampson:
I would say depending on who is in charge of the legislature. If we have Democrats this is ... Unfortunately this is a Democrat issue. And yes, I think it will probably be brought up again, maybe not in this session, but one ... The 130th legislative session probably we'll see it again if the numbers would be in their favor. The thing was Maine that is a little frustrating with a lot of these sorts of initiatives, is Maine's a little state. 1.3 million people, and they're easily bought. You can have special interests come in, they can easily buy off the state with enough marketing and pressure to flip a state like Maine. And it's, it's a little disheartening being, you know, one of the folks standing and saying, no, not in my state. But you know, money, money talks.

Jennifer B.:
And so representative Sampson, maybe you could tell us a little bit about how Maine currently selects its electors. Because I know that's very different from the way the rest of the country selects their electors other than Nebraska. I think Nebraska and Maine are the two States that choose to do things a little differently. So I was hoping you could explain that.

Heidi Sampson:
Sure. Well, you know when it comes to electoral votes, all ... You know, you just mentioned Maine and Nebraska, all other States are winner take all States. But this is where the candidate winning the popular vote normally received all of the electoral votes. However, we have what's called the congressional district method and that's where we have two electoral votes. And those two electoral votes can be applied differently based on the popular vote winner in each district. So we have two districts. District one is the Southern part of the state. District two is the larger Northern part of the state, larger geographically. And based on the popular vote winner in each respective district, the electoral vote is assigned or goes with that popular vote winner. So, for example ... Well, you know, so for example, in 2016 congressional district one, went to Hillary Clinton. And congressional district two, went to Donald Trump. And this process has been in place since before the two ... The 1900 ... 1972 presidential election. And Maine was the first state to adopt this rule. And-

Jennifer B.:
And I understand that, sorry to interrupt just a second. Just for clarity, Maine has four electoral votes. Correct? So district one pledged their elector to Hillary Clinton. District two to Donald Trump. And then the other two electors went to who?

R. Cooper:
To the winner of the state as a whole. So ...

Jennifer B.:
sorry about that.

R. Cooper:
Hillary Clinton got ... yeah. Hillary Clinton got more votes overall within the state. So she got those other two electoral votes.

Jennifer B.:
Got it...

R. Cooper:
So it was three to one.

Jennifer B.:
Right. So in the 2016 presidential election, Maine had four electors. Three went for Hillary Clinton, one went for Donald Trump. And by contrast, and almost any other state of the union, the winner of the overall popular vote within the state would've gotten all of the state's electors. What you described as winner take all.

Heidi Sampson:
Correct. Yeah. Correct.

Jennifer B.:
And so ... So if Maine had a winner take all system, like most of the rest of the country does, Hillary Clinton would've gotten all four.

Heidi Sampson:
All four. Correct.

Jennifer B.:
Votes in Maine. But Maine's system is arguably more democratic than some of the other States.

R. Cooper:
Exactly. Donald Trump recognized that he had a chance in the second congressional district. So he did spend a fair amount of time in the Northern part of the states of willing voters. So it paid off. And that's one of the reasons the people in the rural part of the state, the Northern part of the state, felt that their influence would be diminished if they went for the interested commerce agreement. Excuse me, the interested Compact agreement.

Jennifer B.:
Yes. And it certainly would be. And arguably the, the influence of the entire state of Maine would be. Is that not right?

Heidi Sampson:
Right.

R. Cooper:
Yes, that's true for all small rural States. Yeah.

Heidi Sampson:
So all those points are absolutely valid. Maine essentially has two mechanisms in there, presidential voting procedure. We, there's the engagement, the people's voice is heard. And then the people's voice is also protected. In the sense that the minority can have a voice here. And that's looking at the larger scale of ... From the global lens and the whole country. We have sort of the best of both worlds because we have, you know, we are ... We are a constitutional Republic, not a democracy. The Republic gives the voice to all citizens, especially the minority. And a democracy, in contrast, a true democracy, that minority voice would never be heard. And this is the argument with this national popular vote that's operating on a true democracy principle and not a Republic principle. The voice of the second district would never have been heard if we did not have this congressional district method. And, So for for me, that was extremely important for both those levels to protect what Maine has. We have something very unique.

Jennifer B.:
And likewise, you know, you say that the voice of the districts that selected Donald Trump would not have been heard without your sort of unique system. But likewise, without the electoral college, generally the voice of Maine as a state would not be heard. Because for example, in ... when George Bush ran against John Kerry, George Bush won the national popular vote. And under the interstate compact had Maine agreed to that, you would have to pledge your electors to George Bush, even though the majority of the people in Maine wanted John Carey. So ...

Heidi Sampson:
Right.

Jennifer B.:
Even though they didn't get their way, ultimately in that election, they had an opportunity, the voters of Maine, to register their views as supporters of the democratic nominee that time around.

R. Cooper:
That's correct. Yeah. I approach the issue not so much in the same way, I guess you'd call me a small D Democrat on this. I feel that the electoral college has outlived its youthfulness and rationale. And is antidemocratic in its nature, because it doesn't count, the votes, of every individual. So I would like to see it repealed and replaced with popular vote. But I feel that this method, the interstate compact method, is run and run around the constitutional amendment process as well as the electoral college. And if you're going to do it, you have to do it within the bounds of the constitution.

Jennifer B.:
Interesting. So, so if a constitutional amendment were to be presented to Maine with this very same issue, asking you, in your capacity as a state legislator, to vote on a constitutional amendment, would you support an amendment to repeal the electoral college and substitute it with the nationwide popular vote?

R. Cooper:
Yes, I would. Although it's fraught with potential problems as well. But that's the general principle I do support. The problems that I foresee is that just as we zeroed in on hanging chads in Florida where every vote counted, every precinct in America could become a battleground if there's a national popular vote.

Jennifer B.:
Well, I think that it certainly would because most presidential elections, if you look over the course of history, are actually pretty close, right? I mean, we're a pretty divided nation, politically. Most presidential elections are won at the margins. And I would imagine that in a close election, the person who loses the nationwide popular vote is going to initiate challenges in each and every district across the country that they can to try to overturn what appears to be the results. I mean, wouldn't you imagine that would be the case?

R. Cooper:
Yeah, they would focus in on districts that were close and where they had the resources. So that makes it all the more important that our voting system is absolutely ironclad from outside interference and voting mishaps through intent or mistake and so forth. Yeah.

Jennifer B.:
So tell me more then about why you voted against this bill if you are generally in favor of a popular vote on policy grounds.

R. Cooper:
Right. In addition to my constitutional concerns is the statutory one of, what's an interstate compact. The constitution civically alludes to the possibility of states joining together in a kind of a contract to agree to do something together as the other parties do. But generally they applied to relatively small potatoes kind of stuff. I mean it may involve a lot of money, but in terms of the law, like a transportation system that goes across state boundaries and that sort of thing. And the constitution also provides that state compacts need congressional approval. However, the Supreme court has ruled that that's not necessarily true in some cases, as long as the federal powers aren't really affected. And so we've never had an interstate compact that really deals with issues of such constitutional magnitude. So it's not been tested and I think they're on shaky grounds. To use a compact in this way, for those reasons.

Jennifer B.:
And it's likely then that if the compact takes effect and you, I think you said at the beginning it would only take effect when not enough States joined to constitute the 270 electoral votes. But if they were to achieve that goal and, they're almost at 200 votes right now I believe, I would imagine that it would be tied up in litigation for quite some time. With states bringing constitutional and statutory challenges probably all the way up to the Supreme Court.

R. Cooper:
That's right. And so, given the makeup of the current Supreme Court... Well I guess I wouldn't hazard a guess, but it's certainly not predictable how they would rule. But I also want to-

Jennifer B.:
well I'll hazard a guess. I will hazard a guess right now actually. Because in the term limits case, if you recall that, I think it was US Term Limits vs. Thorton, I think it was called. The court had a ruling where they said, this wasn't about an interstate compact but court said that states could not change, they could not pass requirements that would sort of tinker with the federal structure of the constitution. So even though states have freedom to do certain things, in that case they were passing term limits. In this case, we're talking about allocating how electives are divided up. The court ruled in the Term Limits case that states can't either individually or as a group decide that they're going to take action that undermines the Federalist structure or the underlying structure of the constitution.

Jennifer B.:
which I think that this absolutely would, right? Because the whole notion of the electoral college is premised on the fact that we are a Federalist Republic where not just individual votes matter but the views of the state's.

R. Cooper:
Right, states are sovereign too. The other point I wanted to make on why I oppose this compact is just a practical political one. I think they've got about 180 electoral votes, the States that have now signed on, but they pretty much-

Jennifer B.:
I think it was 196. It was at 196 with the addition of Oregon last week I think.

R. Cooper:
Okay. But Nevada vetoed it and the governor vetoed. But you gotta do the math and the math is that all the blue states, and this tends to divide along party lines, have pretty much had their say already. So who's left to get to that 270? And so, I think this has been raised as a national issue by both sides as a kind of a hot button issue to organize rather than a realistic assessment of whether it could ever happen.

R. Cooper:
And I feel it's misleading to have gone forward with this.

Jennifer B.:
Well it's interesting you say that because there are a lot of political issues I think that, whether it's impeachment or guns or, right? There are a lot of hot button issues that I think both sides of the political aisle use as red meat for fundraising. But I would argue that this isn't necessarily one of those. And even to the extent that it is, it's actually a good thing because it's generated a lot of debate and education among the citizenry about our constitution, the way it sets things up, why it sets it up that way and whether it might be time to change it. And so that type of civic debate that's going on as a result of this is not a bad thing.

Heidi Sampson:
Not at all.

R. Cooper:
Well that's true, but they do want to win or lose, you know, whatever side you're on. But I agree that it's been a positive discussion because most people didn't have much of an understanding of how the electric college worked and what the historical basis of it was and, which I guess your previous guest talked about, was really born of an era where there was not universal suffrage to say the least. Women, blacks, so forth were not allowed to vote. Slaves counted as less than a full human being but were counted so as to increase the number of people counted for the electoral college. So there's all kinds of historical reasons behind it, which today we find repugnant. And so it's time for a revisiting of the rationale for it.

Jennifer B.:
it's interesting you say that though too, because that's been a popular argument against the electoral college. But I would argue, yes, those things are true but if you're going to revisit everything because it was born of slavery and misogyny, then we have to revisit our entire country. I mean, there's nothing in America today that didn't come out of the constitutional convention, of slaveholders. Or not, they weren't all slaveholders but many of them were slaveholders. So, you can't just throw out the whole thing and start over. So I just, I find that argument a bit of a red herring because what they created was a system that could evolve and it did evolve over time to bring in more voices. And so I don't think it's a good argument just to say, well, the people who voted for this were slaveholders and so we shouldn't have it anymore.

R. Cooper:
But it has a continuing effect on the way we elect our president and vice presidents. Whereas many other aspects of the constitution don't have an effect anymore. I mean, I would say you're right about the allocation of Senators, certainly. You know, Maine has two and so does New York and California. And so that's what makes our weight in the electoral college heavier proportionally than those States because every state gets its electoral votes based on the number of Senators and the number of Representatives. So we get an extra kick there because of that.

Jennifer B.:
Right. So let me bring in Representative Samson here to talk a little bit more about why you support the electoral college as a normative matter. I know Representative Cooper doesn't like the nature of the compact that would get rid of it, but why do you support the electoral college normatively?

Heidi Sampson:
Well, I think, like I said, and I hadn't, I probably should have prefaced everything with the bigger picture. And I was starting with a minutia going larger. But the idea that we as a nation were established so that we ... They looked carefully at those pure democracies. And that essentially devolves into mob rule. I look at this national popular vote more in light of that mob rule mentality and that liberty ends up getting silenced in that process. And I was deeply concerned with the fact that Maine being a small state would become completely nullified. Their impact would be nullified. And as Representative Cooper just said, with our two electoral votes coming from like the senators, we are on even footing with every other state. And on top of that, we in the state of Maine have these two electoral votes that can be ... They have these separate popular vote contests in the two different districts. And so my argument to this was that we actually have a popular vote component essentially within our state which -

Jennifer B.:
Well, every state has a popular vote right? The state of Massachusetts conducts a democratic popular vote. It's just that as you both identified earlier, after that vote is taken, it's a winner take all system for the electors. But there are democratic popular votes going on in each of these States. But I wonder why more States that are frustrated with the electoral college system don't adopt the Maine and Nebraska plan. Have you heard? I mean, any talk about that?

Heidi Sampson:
Well, I haven't heard anything, but I mean, I think that that's sort of the both ... The best of both worlds. And I think it adds an impetus for these presidential candidates to come to a state like Maine if they think that they can win at least one or maybe two or more electoral votes, it gives an incentive. If we got rid of this, there would be no incentive and Maine would never have anyone come into the state.

Jennifer B.:
Right. And I thought the other day that had, that showed how there are four times as many registered voters in Los Angeles County than there are in the entire state of Maine. So with the nationwide popular vote, there would be zero reason, as you said, for candidate to go and visit Maine. Talk to the people of Maine, find out about the concerns of the people of Maine. They would just blanket the LA County media market and the other big media markets and try to increase voter turnout in those locations. I would imagine.

Heidi Sampson:
Right. That's what I think.

R. Cooper:
Yeah, I think the certain advantages of our system, and when I ... Before I was a legislator, I worked for a Congressman, Tom Allen, who represented the Southern part of Maine. And we wrote an op ed, which was in the Boston globe, that extolled our system and it was published, but I don't recall much of a reaction. So it's not ... It never caught fire and as Heidi said, I haven't heard any talk of moving in that direction. But now that this method has failed, maybe there'll be some more interested in trying an alternative.

Jennifer B.:
Well, it's saying ... It goes to your point, Representative Cooper, that maybe this is just a political issue on both sides. Because if people were really interested in finding a solution, maybe they would turn to Maine and adopt plans that are, that are more like your models. So who knows. Maybe you'll be hearing from legislators and other States soon to get your advice on how to enact a system that strikes a balance between the current winner take all electoral college system, and the full blown nationwide popular vote. Who knows. Right.

R. Cooper:
That's possible. Who knows. In fact during our debate on the national popular vote, there was an amendment floated that would have changed the compact wording so as to basically create a Maine model. But it was, I don't believe it was ever offered and anyway, it would have destroyed the whole idea of a compact cause they have to be identical.

Jennifer B.:
Right, exactly. Well interesting. So the compact is dead in the Maine legislature for now. I suppose it could always come up in another legislative session, but for now Maine is out. A lot of other blue States are in. Nevada. The Nevada governor vetoed the measures, so they are out. And interestingly Colorado, which approved the measure, is trying to put it on the ballot to let the voters weigh in, in an attempt to repeal the measure. So we shall see what happens. We're out of time for today. I hope our listeners learned something new from the conversation. And if people are interested in learning more about the electoral college, they can check out IWF legal brief on the topic at iwf.Org. And if you enjoyed this episode of She Thinks we at the IWF would love it if you would take a moment to leave us a rating or review on iTunes. From all of us here at Independent Women's forum. Your in control. I think. You think. She thinks.





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