Constitutional Amendment The Easy Way

There is yet another effort underway to amend the Constitution without amending the Constitution. Nate Silver writes about this ingenious plan to, in effect, do away with the electoral college for presidential elections.

You can follow that link to the full details, but the gist is that certain states (totalling at least 270 electoral votes, which constitute a majority of the total) would require their electors to vote for the winner of the nationwide popular vote.

The comments raise all sorts of interesting issues.

One that comes to mind for me is: what would the penalty be on an individual elector who votes against his state's instructions? Looking at the states that Nate mentions, might a Democratic elector from Vermont refuse to vote for a Republican popular-vote-winner, or vice-versa with a Republican elector from Arkansas? The author of one of the comments would send such an elector to jail. Maybe, but that seems doubtful.

This seems less vulnerable to a constitutional challenge than the line-item-veto legislation a few years back, or the current proposal for Congress to grant House representation to the District of Columbia. However, the possibility of a challenge under the Voting Right Act is noted.

I've already expressed my opinion that we should, at the very least, be careful about changing or abolishing the current system, so as to avoid unintended consequences.

I understand why there was a strong reaction to George W. Bush being elected in 2000, despite having lost the popular vote to Al Gore. But, it almost seems as though Bush's opponents think they can go back and change history, if they now change the rules. I'm reminded of a scene from Back to the Future, in which Michael J. Fox's character, having gone back in time to the point where his parents were first dating, starts to disappear every time something happens that might keep them apart. No matter what we do to the presidential election procedure now, we won't get the reverse of what almost happened in that movie. Bush's presidency will not retroactively disappear.