It would be nice if everyone had given their attention to how quickly Congresscompleted its work Wednesday. How, after a brief disruption, it counted the electoral ballots and confirmed President-elect Joe Biden and Vice President-elect Kamala Harris‘s victory. That the norms were upheld and the victorious indeed emerged triumphant.
It would be nice—but it would ignore the elephant in the room.
Many regard the U.S. Capitol with the same kind of awe and reverence shown by Jimmy Stewart’s character in Mr. Smith Goes to Washington. I know I do and, after nearly 40 years of being intimately involved in the political process, I confess a great deal of earnest sentimentalism has managed to survive beneath my hard-shell journalistic cynicism.
The Capitol is an amazing building, unique for what it represents. To the world, its dome means freedom, liberty and equality. It stands for the idea every man and woman has an equal chance to succeed, unhampered by those factors that in other nations perpetuate class, caste and regional differences. We are, as a friend often reminds me, a great country full of amazing people who often do amazing things.
What happened Wednesday is an abomination. More than that, it sullies the very democratic institutions and processes those who came to protest the counting of the Electoral College ballots in what they believe is a stolen election said they had come to protect. Spontaneous or not, the assault on the Capitol was an affront to us all, Democrats, Republicans and independents alike—no matter who committed it.
As has been argued by others, President Donald J. Trump bears considerable responsibility for this madness. He sent those people off on a mission believing they were patriots standing up against the culmination of a corrupt process that denied him a second term. That is not, however, an indictment of the nearly 75 million Americans who voted for him in November.
Those who broke the law should be sought out and, if apprehended, punished to the full extent allowable by law. Those who entered the Capitol to ransack it not only made a mockery of the majesty and ritual with which America’s legislative process is conducted, they proved the Founding Fathers to have been correct in every way in which they warned against the dangers of the mob.
There is a coarseness in politics today that, for some time, has debased our democratic system. James Madison warned that partisanship would be problematic. We can see now how prescient he was. Disagreement and dissent are now too often presented as dishonorable, especially by the people on the other side of any given disagreement. The plain fact is there’s plenty of blame to go around, and the mob that attacked the Capitol were no more “patriots” than the assassins of the two New York City police officers murdered in 2014 while sitting in their cruiser were “civil rights activists.”
Words are the way we are supposed to settle things—not violence. That’s what my mother and father taught me and, I presume, it’s what most of you who are reading this now were also taught in your formative years. The disputes we have over the outcome of the 2020 presidential election, whether grounded in reality or a fantasy-fueled attempt to hang onto power, cannot and will not be settled by brawling or attacking democratic symbols.
As a new administration comes into office, hopefully both Democrats and Republicans will adopt a calmer approach to settling differences. The persistence of our democratic republic is a tribute to the vision of the Founders and the living legacy of men like Washington, Adams, Jefferson, Lincoln, the Roosevelts, Kennedy and Reagan—all of whom did so much to give it life. It is a tribute to them that our institutions and our democratic republic have not yet crumbled on account of the lesser lights who have been sometimes chosen to lead it.
However unfairly Mr. Trump was treated during his presidency, he must realize at some point that he brought many of these indignities upon himself. He chose to throw sharp elbows and should not have been surprised when they were thrown back. He could have left the presidency on a high note, confident he’d built a movement that would outlast him and that, in just four years, he’d successfully pushed policies leading to greater peace and prosperity (at least before COVID-19 hit). Ultimately, he surrendered to the lesser parts of our nature and seems, for the moment at least, to have destroyed any meaningful legacy he might have left.
Pardon us if we are a little confused regarding the current status of the 2020 election results. We have been saying all along that we are dedicated to following the rule of law. Now, however, we are watching all levels of the Judiciary — who personify the law in the USA – rejecting what appears to many of us as highly suspicious behavior on the part of the vote counters. Some without even hearing the evidence of the plaintiff. These rejections are north of 60 cases, at all levels of the judiciary from Circuit courts to federal appellate courts.
What is going on? And where are the chief law enforcement organizations, the Justice Department and the FBI, who should be leading the investigations into allegations of monumental crimes of election fraud? Instead of leading the search for truth, they are nowhere to be found. Attorney General William Barr, thought to be a non-partisan pillar of integrity, ducks out of his responsibilities by saying that his department could find no crimes which would change the outcome of the election. This without citing any such investigatory efforts.
The only Judge showing enough true grit to hold the state officials to their oath of office is Supreme Court Justice Samuel Alito, who is hot on the trail of the Pennsylvania mess. Of course, the end game of most of these lawsuits will be the actions of the Supreme Court as a whole when some of the current cases have traveled the gauntlet of judicial rejections in order to get standing for the high court to act.
So, here we are, days before the traditional certifications of the electoral college to begin, waiting to see what the Supreme Court will do. Will they accept the case(s) and issue a decision as in the case of Gore v Bush in 2001, or will they also decline to exercise their duty? If they do accept the case(s), what will their verdict be?
The very vastness of the suspected corruption is a challenge which gives everyone pause. What is being alleged is a conspiracy which touches nearly every state in the Union. A pattern of ballot tampering which has eerie similarities in nearly every suspicious state, which in turn strongly suggests central planning. The remedy may mean declaring the entire election null and void! Then what? Another election? Extension of the present terms while the new election is organized. For the first time in American history?
Alternatively, the selective decertification of certain votes among the many cast in person and by mail? Who would enforce strict behavior of the recount and the responsibilities of the poll watchers?
There are other issues as well, particularly the widespread use of the Dominion software (some 34 state users) which has been roundly criticized as an instrument of ballot tampering. A prohibition against use in an American election could cause an upheaval in the many states which relied on this technology to operate their balloting.
The other factor is, if the Supreme Court does accept one or more cases, how will they vote? Will the Chief Justice retain his posture of going with the wind as he has in some notable previous cases? Or will he be guided by the Constitution? What will be the effect of the new Justices on the rest of the Court, if any?
Yes, these are exciting times we live in. But also very confusing.
As part of their populist platforms, Elizabeth Warren and Bernie Sanders have vowed to get rid of the Electoral College, so that the U.S. President is chosen by a direct popular vote. Likewise, Pete Buttigieghas also pledged support for the initiative, with Amy Klobuchar indicating her openness to the proposal. That structural change, if made, would profoundly impact all future political campaigns, as candidates would ignore former swing states in order to run up tallies in populous places like California, Florida, New York, and Texas. The consequences that would follow from such a dramatic realignment of voting power would greatly increase the risk of election fraud, such that the ensuing nationwide recounts would make Bush v. Gore look like a modest political skirmish.
Progressives are highly unlikely to gain sufficient support to implement this major reform through constitutional amendment. But right now, two major Supreme Court cases—Colorado Department of State v. Baca and Chiafalo v. Washington—pose the serious risk of undermining the integrity of the Electoral College by changing the long-established practice that all electors must vote as a bloc to support the presidential nominee of their party. In 48 states, the entire state follows that winner-take-all mandate. In Maine and Nebraska, the winner-take-all system is done by congressional district.
But in the aftermath of the November 2016 election, which Trump won by 306 to 232 electoral votes, both of the named electors in each aforementioned case were committed to Democratic candidate Hillary Clinton but did not vote for her. In Colorado, Michael Baca, a Clinton elector, cast his ballot for then Ohio governor John Kasich; in Washington, Peter Bret Chiafalo voted for Republican Colin Powell. These two votes were not isolated events, as ten electors followed the same path in an attempt to block Donald Trump from becoming president by persuading enough Republican electors to defect so that Trump’s total would fall below 270 votes. Their acts of defiant independence brought forth prompt responses. Colorado replaced Baca with a new elector who voted for Clinton; Washington fined Chiafalo $1,000 for his action.
The intellectual leader of this movement to undo the Electoral College is Harvard Law School Professor Lawrence Lessig, whose Equal Citizen’s initiative has spurred the campaign to transform the American electoral system. Taking a page from Lessig Equal Citizen’s playbook, Baca and Chiafalo describe themselves as Hamilton Electors, because they insist that their actions are meant to return the Electoral College to the initial prominence ascribed to it by Alexander Hamilton in Federalist No. 68. Hamilton regarded popular democracy as a debased form of government, in contrast to the elitist republican form of government. The former relied heavily on direct elections; the latter used more complex indirect elections. He wrote: “And as the electors, chosen in each State, are to assemble and vote in the State in which they are chosen, this detached and divided situation will expose them much less to heats and ferments, which might be communicated from them to the people, than if they were all to be convened at one time, in one place. . . . Nothing was more to be desired than that every practicable obstacle should be opposed to cabal, intrigue, and corruption.”
In essence, the original Electoral College required that each state would have its own mini-deliberative sessions until the electors made up their mind. This setup is patterned on the Catholic College of Cardinals, which uses a similar voting method to pick the next pope. But there is a vast difference between the two devices. The Cardinals who vote are not the agents of anyone, so it is proper for them to be able to vote their own consciences. But the electors in a presidential election are the agents of the voters who selected them. Faithless electors could therefore betray the wish of the voters who selected them.
Hence the practice quickly arose for electors to “pledge” themselves to the candidate whose slate of electors they joined. As noted in McPherson v. Blacker (1892), “experience soon demonstrated” that these electors “were so chosen simply to register the will of the appointing power in respect of a particular candidate.” Sixty years later, Ray v Blair (1952) held that the Executive Committee of Alabama was within its rights when it refused to certify Blair as a primary elector because he refused to “pledge to aid and support ‘the nominees of the National Convention of the Democratic Party for President and Vice-President of the United States.’” In so doing, the Court rejected the view that the complex Twelfth Amendment, passed in 1804 and which called for electors to “meet in their respective states and vote by ballot for President and Vice-President,” necessarily gave them the same discretion that Hamilton had contemplated in Federalist 68.
Ray might be distinguished from Baca and Chiafalo for two reasons: first, Ray involved a primary election contest, and second, it did not specify any sanctions that could be lodged against a certified elector who voted his own conscience. But neither of these points should make the slightest difference. The principles of electoral integrity that apply to primaries carry over to general elections, where the stakes are even higher.
In addition, Article II, Section 1, Clause 2 of the U.S. Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” The words “shall appoint, in such Manner as the Legislature thereof may direct” cannot be sensibly read to say that the only power of the state is to make the appointment, when it is certainly necessary and proper that it imposes restrictions that ensure that the appointed elector will follow the instructions of the state legislature.
Nonetheless, this Clause is given just that truncated meaning by Equal Citizens, which writes: “of ‘electors’—that is, choosers—to make their own free choice, as politicians of both parties have recognized.”
That argument should be emphatically rejected. It should never be the case that the potential elector who makes known his independence before selection can be rightly denied his place, but the savvy elector who conceals his intention before being chosen is entitled thereafter to vote his conscience and disregard his oath.
In this connection, Colorado therefore was fully within its rights to pull the errant Baca from his place and appoint a substitute. Full relief against this constitutional abuse cannot be obtained by any lesser means, so that removal and replacement is needed to stop the ex post defection. Washington state, in contrast, did not exercise its full constitutional power when it imposed a small fine to achieve that same end. But that small fine is little deterrent to future defections, so Washington should adopt the Colorado solution. Otherwise, the risk that mass defections could turn any election into a free-for-all becomes too great.
Ironically, these faithless electors purport to return to some originalist conception of the Constitution. But their unilateral actions do not get us to that place, given that they reserve the right to defect without participating in any collective deliberation, past or future. Moreover, if that constitutional transformation were accepted, then the entire system of selecting electors would become hopelessly politicized, with little chance that Hamilton’s elites would control.
Right now, the selection of electors is no big deal. But if their individual views were to count, then voters would want to know their electors’ (nonbinding) intentions to determine whether they would defect from the party’s nominee once chosen. At this point, the entire selection process would become far more complex and indeterminate. Just who would choose them? And once chosen, could these electors resist powerful interest group pressures to change their views? A new round of campaigns would begin before the vote took place, and continue nonstop in close elections until the votes were cast in December.
People might even insist that their electors actually deliberate, instead of just mouth-off, which could further postpone the final tally until those sessions were concluded. That delay could in turn postpone the transition between presidents, inviting yet further discord. Increased popular disaffection would undermine presidential legitimacy. And for what?
To be sure, today’s practices unmistakably deviate from the design of the Founders. But such transformations are common to our constitutional history. Judicial review, which gives the Supreme Court final say over the validity of all federal and state laws, forms no part of the original constitutional plan, but was instituted by judicial decision from an early date—most notably in Marbury v. Madison(1803), and Martin v. Hunter’s Lessee (1816). As I argued in The Classical Liberal Constitution, these decisions have become embedded in our prescriptive constitution through long-use. That deliberative process protects the nation from imprudent convulsions, which would follow if Hamilton’s misguided elitism somehow became law.
The Supreme Court should reject emphatically this unwise invitation to rewrite our nation’s history. And when it does, calmer heads in the political arena will reconfirm the wisdom of its ways.
The following is adapted from a speech delivered on April 30, 2019, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C.
Once upon a time, the Electoral College was not controversial. During the debates over ratifying the Constitution, Anti-Federalist opponents of ratification barely mentioned it. But by the mid-twentieth century, opponents of the Electoral College nearly convinced Congress to propose an amendment to scrap it. And today, more than a dozen states have joined in an attempt to hijack the Electoral College as a way to force a national popular vote for president.
What changed along the way? And does it matter? After all, the critics of the Electoral College simply want to elect the president the way we elect most other officials. Every state governor is chosen by a statewide popular vote. Why not a national popular vote for president?
Delegates to the Constitutional Convention in 1787 asked themselves the same question, but then rejected a national popular vote along with several other possible modes of presidential election. The Virginia Plan—the first draft of what would become the new Constitution —called for “a National Executive . . . to be chosen by the National Legislature.” When the Constitutional Convention took up the issue for the first time, near the end of its first week of debate, Roger Sherman from Connecticut supported this parliamentary system of election, arguing that the national executive should be “absolutely dependent” on the legislature. Pennsylvania’s James Wilson, on the other hand, called for a popular election. Virginia’s George Mason thought a popular election “impracticable,” but hoped Wilson would “have time to digest it into his own form.” Another delegate suggested election by the Senate alone, and then the Convention adjourned for the day.
When they reconvened the next morning, Wilson had taken Mason’s advice. He presented a plan to create districts and hold popular elections to choose electors. Those electors would then vote for the executive—in other words, an electoral college. But with many details left out, and uncertainty remaining about the nature of the executive office, Wilson’s proposal was voted down. A week later, Elbridge Gerry of Massachusetts proposed election by state governors. This too was voted down, and a consensus began to build. Delegates did not support the Virginia Plan’s parliamentary model because they understood that an executive selected by Congress would become subservient to Congress. A similar result, they came to see, could be expected from assigning the selection to any body of politicians.
There were other oddball proposals that sought to salvage congressional selection—for instance, to have congressmen draw lots to form a group that would then choose the executive in secret. But by July 25, it was clear to James Madison that the choice was down to two forms of popular election: “The option before us,” he said, “[is] between an appointment by Electors chosen by the people—and an immediate appointment by the people.” Madison said he preferred popular election, but he recognized two legitimate concerns. First, people would tend toward supporting candidates from their own states, giving an advantage to larger states. Second, a few areas with higher concentrations of voters might come to dominate. Madison spoke positively of the idea of an electoral college, finding that “there would be very little opportunity for cabal, or corruption” in such a system.
By August 31, the Constitution was nearly finished—except for the process of electing the president. The question was put to a committee comprised of one delegate from each of the eleven states present at the Convention. That committee, which included Madison, created the Electoral College as we know it today. They presented the plan on September 4, and it was adopted with minor changes. It is found in Article II, Section 1:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.
Federal officials were prohibited from being electors. Electors were required to cast two ballots, and were prohibited from casting both ballots for candidates from their own state. A deadlock for president would be decided by the House of Representatives, with one vote per state. Following that, in case of a deadlock for vice president, the Senate would decide. Also under the original system, the runner up became vice president.
This last provision caused misery for President John Adams in 1796, when his nemesis, Thomas Jefferson, became his vice president. Four years later it nearly robbed Jefferson of the presidency when his unscrupulous running mate, Aaron Burr, tried to parlay an accidental deadlock into his own election by the House. The Twelfth Amendment, ratified in 1804, fixed all this by requiring electors to cast separate votes for president and vice president.
And there things stand, constitutionally at least. State legislatures have used their power to direct the manner of choosing electors in various ways: appointing them directly, holding elections by district, or holding statewide elections. Today, 48 states choose their presidential electors in a statewide, winner-take-all vote. Maine and Nebraska elect one elector based on each congressional district’s vote and the remaining two based on the statewide vote.
It is easy for Americans to forget that when we vote for president, we are really voting for electors who have pledged to support the candidate we favor. Civics education is not what it used to be. Also, perhaps, the Electoral College is a victim of its own success. Most of the time, it shapes American politics in ways that are beneficial but hard to see. Its effects become news only when a candidate and his or her political party lose a hard-fought and narrowly decided election.
So what are the beneficial effects of choosing our presidents through the Electoral College?
Under the Electoral College system, presidential elections are decentralized, taking place in the states. Although some see this as a flaw—U.S. Senator Elizabeth Warren opposes the Electoral College expressly because she wants to increase federal power over elections—this decentralization has proven to be of great value.
For one thing, state boundaries serve a function analogous to that of watertight compartments on an ocean liner. Disputes over mistakes or fraud are contained within individual states. Illinois can recount its votes, for instance, without triggering a nationwide recount. This was an important factor in America’s messiest presidential election—which was not in 2000, but in 1876.
That year marked the first time a presidential candidate won the electoral vote while losing the popular vote. It was a time of organized suppression of black voters in the South, and there were fierce disputes over vote totals in Florida, Louisiana, and South Carolina. Each of those states sent Congress two sets of electoral vote totals, one favoring Republican Rutherford Hayes and the other Democrat Samuel Tilden. Just two days before Inauguration Day, Congress finished counting the votes—which included determining which votes to count—and declared Hayes the winner. Democrats proclaimed this “the fraud of the century,” and there is no way to be certain today—nor was there probably a way to be certain at the time—which candidate actually won. At the very least, the Electoral College contained these disputes within individual states so that Congress could endeavor to sort it out. And it is arguable that the Electoral College prevented a fraudulent result.
Four years later, the 1880 presidential election demonstrated another benefit of the Electoral College system: it can act to amplify the results of a presidential election. The popular vote margin that year was less than 10,000 votes—about one-tenth of one percent—yet Republican James Garfield won a resounding electoral victory, with 214 electoral votes to Democrat Winfield Hancock’s 155. There was no question who won, let alone any need for a recount. More recently, in 1992, the Electoral College boosted the legitimacy of Democrat Bill Clinton, who won with only 43 percent of the popular vote but received over 68 percent of the electoral vote.
But there is no doubt that the greatest benefit of the Electoral College is the powerful incentive it creates against regionalism. Here, the presidential elections of 1888 and 1892 are most instructive. In 1888, incumbent Democratic President Grover Cleveland lost reelection despite receiving a popular vote plurality. He won this plurality because he won by very large margins in the overwhelmingly Democratic South. He won Texas alone by 146,461 votes, for instance, whereas his national popular vote margin was only 94,530. Altogether he won in six southern states with margins greater than 30 percent, while only tiny Vermont delivered a victory percentage of that size for Republican Benjamin Harrison.
In other words, the Electoral College ensures that winning supermajorities in one region of the country is not sufficient to win the White House. After the Civil War, and especially after the end of Reconstruction, that meant that the Democratic Party had to appeal to interests outside the South to earn a majority in the Electoral College. And indeed, when Grover Cleveland ran again for president four years later in 1892, although he won by a smaller percentage of the popular vote, he won a resounding Electoral College majority by picking up New York, Illinois, Indiana, Wisconsin, and California in addition to winning the South.
Whether we see it or not today, the Electoral College continues to push parties and presidential candidates to build broad coalitions. Critics say that swing states get too much attention, leaving voters in so-called safe states feeling left out. But the legitimacy of a political party rests on all of those safe states—on places that the party has already won over, allowing it to reach farther out. In 2000, for instance, George W. Bush needed every state that he won—not just Florida—to become president. Of course, the Electoral College does put a premium on the states in which the parties are most evenly divided. But would it really be better if the path to the presidency primarily meant driving up the vote total in the deepest red or deepest blue states?
Also, swing states are the states most likely to have divided government. And if divided government is good for anything, it is accountability. So with the Electoral College system, when we do wind up with a razor-thin margin in an election, it is likely to happen in a state where both parties hold some power, rather than in a state controlled by one party.
Despite these benefits of the current system, opponents of the Electoral College maintain that it is unseemly for a candidate to win without receiving the most popular votes. As Hillary Clinton put it in 2000: “In a democracy, we should respect the will of the people, and to me, that means it’s time to do away with the Electoral College.” Yet similar systems prevail around the world. In parliamentary systems, including Canada, Israel, and the United Kingdom, prime ministers are elected by the legislature. This happens in Germany and India as well, which also have presidents who are elected by something similar to an electoral college. In none of these democratic systems is the national popular vote decisive.
More to the point, in our own political tradition, what matters most about every legislative body, from our state legislatures to the House of Representatives and the Senate, is which party holds the majority. That party elects the leadership and sets the agenda. In none of these representative chambers does the aggregate popular vote determine who is in charge. What matters is winning districts or states.
Nevertheless, there is a clamor of voices calling for an end to the Electoral College. Former Attorney General Eric Holder has declared it “a vestige of the past,” and Washington Governor Jay Inslee has labeled it an “archaic relic of a bygone age.” Almost as one, the current myriad of Democratic presidential hopefuls have called for abolishing the Electoral College.
Few if any of these Democrats likely realize how similar their party’s position is to what it was in the late nineteenth century, with California representing today what the South was for their forebears. The Golden State accounted for 10.4 percent of presidential votes cast in 2016, while the southern states (from South Carolina down to Florida and across to Texas) accounted for 10.6 percent of presidential votes cast in 1888. Grover Cleveland won those southern states by nearly 39 percent, while Hillary Clinton won California by 30 percent. But rather than following Cleveland’s example of building a broader national coalition that could win in the Electoral College, today’s Democrats would rather simply change the rules.
Anti-Electoral College amendments with bipartisan support in the 1950s and 1970s failed to receive the two-thirds votes in Congress they needed in order to be sent to the states for consideration. Likewise today, partisan amendments will not make it through Congress. Nor, if they did, could they win ratification among the states.
But there is a serious threat to the Electoral College. Until recently, it has gone mostly unnoticed, as it has made its way through various state legislatures. If it works according to its supporters’ intent, it would nullify the Electoral College by creating a de facto direct election for president.
The National Popular Vote Interstate Compact, or NPV, takes advantage of the flexibility granted to state legislatures in the Constitution: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” The original intent of this was to allow state legislators to determine how best to represent their state in presidential elections. The electors represent the state—not just the legislature—even though the latter has power to direct the manner of appointment. By contrast, NPV supporters argue that this power allows state legislatures to ignore their state’s voters and appoint electors based on the national popular vote. This is what the compact would require states to do.
Of course, no state would do this unilaterally, so NPV has a “trigger”: it only takes effect if adopted by enough states to control 270 electoral votes—in other words, a majority that would control the outcome of presidential elections. So far, 14 states and the District of Columbia have signed on, with a total of 189 electoral votes.
Until this year, every state that had joined NPV was heavily Democratic: California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, and Washington. The NPV campaign has struggled to win other Democratic states: Delaware only adopted it this year and it still has not passed in Oregon (though it may soon). Following the 2018 election, Democrats came into control of both the legislatures and the governorships in the purple states of Colorado and New Mexico, which have subsequently joined NPV.
NPV would have the same effect as abolishing the Electoral College. Fraud in one state would affect every state, and the only way to deal with it would be to give more power to the federal government. Elections that are especially close would require nationwide recounts. Candidates could win based on intense support from a narrow region or from big cities. NPV also carries its own unique risks: despite its name, the plan cannot actually create a national popular vote. Each state would still—at least for the time being—run its own elections. This means a patchwork of rules for everything from which candidates are on the ballot to how disputes are settled. NPV would also reward states with lax election laws—the higher the turnout, legal or not, the more power for that state. Finally, each NPV state would certify its own “national” vote total. But what would happen when there are charges of skullduggery? Would states really trust, with no power to verify, other state’s returns?
Uncertainty and litigation would likely follow. In fact, NPV is probably unconstitutional. For one thing, it ignores the Article I, Section 10 requirement that interstate compacts receive congressional consent. There is also the fact that the structure of the Electoral College clause of the Constitution implies there is some limit on the power of state legislatures to ignore the will of their state’s people.
One danger of all these attacks on the Electoral College is, of course, that we lose the state-by-state system designed by the Framers and its protections against regionalism and fraud. This would alter our politics in some obvious ways—shifting power toward urban centers, for example—but also in ways we cannot know in advance. Would an increase in presidents who win by small pluralities lead to a rise of splinter parties and spoiler candidates? Would fears of election fraud in places like Chicago and Broward County lead to demands for greater federal control over elections?
The more fundamental danger is that these attacks undermine the Constitution as a whole. Arguments that the Constitution is outmoded and that democracy is an end in itself are arguments that can just as easily be turned against any of the constitutional checks and balances that have preserved free government in America for well over two centuries. The measure of our fundamental law is not whether it actualizes the general will—that was the point of the French Revolution, not the American. The measure of our Constitution is whether it is effective at encouraging just, stable, and free government—government that protects the rights of its citizens.
The Electoral College is effective at doing this. We need to preserve it, and we need to help our fellow Americans understand why it matters.
If the National Popular Vote drive kills the Electoral College, rural and small town Americans who supply our food and energy will lose their voice.
By USA Today•
Should rural and small-town Americans be reduced to serfdom? The American Founders didn’t think so. This is one reason why they created checks and balances, including the Electoral College. Today that system is threatened by a proposal called the National Popular Vote Interstate Compact, or NPV.
Rural America produces almost all our country’s food, as well as raw materials like metals, cotton and timber. Energy, fossil fuels but also alternatives like wind and solar come mostly from rural areas. In other words, the material inputs of modern life flow out of rural communities and into cities.
This is fine, so long as the exchange is voluntary — rural people choose to sell their goods and services, receive a fair price, and have their freedom protected under law. But history shows that city dwellers have a nasty habit of taking advantage of their country cousins. Greeks enslaved whole masses of rural people, known as helots. Medieval Europe had feudalism. The Russians had their serfs.
Credit the American Founders with setting up a system of limited government with lots of checks and balances. The U.S. Senate makes sure all states are represented equally, even low-population rural states like Wyoming and Vermont. Limits on federal power, along with the Bill of Rights, are supposed to protect Americans from overreaching federal regulations. And the Electoral College makes it impossible for one population-dense region of the country to control the presidency.
This is why Hillary Clinton lost in 2016. Instead of winning over small-town Americans, she amassed a popular vote lead based on California and a few big cities. She won those places with huge margins but lost just about everywhere else. And the system worked. The Electoral College requires more than just the most raw votes to win — it requires geographic balance. This helps to protect rural and small-town Americans.
Now a California millionaire named John Koza is trying to undo this system. He is leading and funding the National Popular Vote campaign. Their plan is to get state governments to ignore how their own citizens vote in presidential elections and instead get them to cast their electoral votes based on the national popular vote. If it works, this will be like getting rid of the Electoral College but without actually amending the Constitution.
California has already passed NPV, along with 13 other states plus Washington, D.C. Nevada, with six electoral votes, could be next. NPV only takes effect if it is joined by enough states that they control 270 electoral votes, which would then control the outcome of all future presidential elections. If that happens (NPV needs 81 more electoral votes), and if the courts do not strike it down, big cities will gain more political power at the expense of everyone else.
The idea that every vote should count equally is attractive. But a quote often attributed to Benjamin Franklin famously reminds us that democracy can be “two wolves and a lamb voting on what’s for lunch.” (City dwellers who think that meat comes from the grocery store might not understand why this is such a big problem for the lamb.) And when you think about it, every check on government power, from the Electoral College to the Bill of Rights, is a restraint on the majority.
The Electoral College makes it even harder to win the presidency. It requires geographic balance and helps protect Americans who might otherwise have their voices ignored. All Americans should value constitutional protections, like the Electoral College, that remind us that the real purpose of government is to protect our individual rights.
By Dan McLaughlin • National Review
The latest enthusiasm from progressive pundits and activists for replacing the American system of self-government is to abolish the Electoral College and choose presidents by national popular vote. As with all such enthusiasms — expanding the Supreme Court, abolishing the filibuster and the Senate itself, lowering the voting age to 16, letting convicted felons and illegal aliens vote, adding D.C. and Puerto Rico as states, automatic voter registration, abolishing voter ID, etc. — the scarcely concealed argument is that changing the rules will help Democrats and progressives win more.
Also as with all such enthusiasms, Democratic presidential contenders have been unable to resist its siren song. Multiple prominent Democratic senators, including Kirsten Gillibrand (N.Y.), Minority Whip Dick Durbin (Ill.), and Dianne Feinstein (Calif.), the ranking Democrat on the Judiciary Committee, are introducing a proposal this week in the Senate to make it happen, the second such proposal by Senate Democrats this month. As radical an idea as this is, its support in high places demands to be taken seriously.
The Electoral College has been with us since the Founding, and in its present form since the election of 1804. Some of the reasons for its creation may be obsolete now, and the original concept of the electors themselves as important actors in the presidential selection process has long since left us. But the fundamental system of electing presidents by 50 simultaneous statewide elections (plus D.C.) rather than a raw national popular vote has long served America well. It isn’t going anywhere, and it shouldn’t.
Uniting the States of America
What would American politics look like without the Electoral College? Changing our current system would unsettle so many of the assumptions and incentives that drive presidential politics that the outcomes could easily be unpredictable. But first, consider the immediate changes. Continue reading
By Sumantra Maitra • The Federalist
During the dying days of the Roman Republic, with effete senators stabbing each other in the back when they were not busy in orgies, Julius Caesar followed the exact trajectory of a Leviathan—what Thomas Hobbes described beautifully hundreds of years later. Caesar, by this time opposed to the Senate, which obstructed his imperial aims, decided to cross the river Rubicon, thereby declaring war on the last vestiges of the craven republic.
After crossing the river, Caesar famously said Alea Eacta Est, or the die is cast. Thus crossing the Rubicon is now considered a revolutionary act that aims to destroy the status quo, structure, and balance, from which there’s no return. The only way forward is through chaos.
The current Democratic presidential frontrunners, with their war cries of Electoral College abolition and reduction of the voting age, signify another crossing the Rubicon moment. That’s because without the Senate, and without the Electoral College, there would be no states in the United States of America. Essentially, there would be no republic anymore. And if history is a good teacher, every time there was direct democracy, it has led to a Caesar—or worse. Continue reading
Senator Elizabeth Warren has joined a growing chorus within the Democratic party in calling for the abolition of the Electoral College. Speaking at a forum in Mississippi on Monday night, Warren said that she hoped to ensure that “every vote matters” and proposed that “the way we can make that happen is that we can have national voting, and that means get rid of the Electoral College.”
Warren’s lofty rhetoric notwithstanding, a large portion of the Democratic party’s present animosity toward the Electoral College is rooted in rank partisanship. Since they watched their supposed “blue wall” evaporate in the small hours of the 2016 presidential election, many Democrats have felt sufficient anger with the system to seek to remake it. This habit has by no means been limited to the Electoral College. Indeed, no sooner has the Democratic party lost control of an institution that it had assumed it would retain in perpetuity than that institution has been denounced as retrograde and unfair. In the past year alone, this impulse has led to calls for the abolition or reinvention of the Senate, the Supreme Court, and more.
Insofar as there does exist a serious argument against the Electoral College, it is increasingly indistinguishable from the broader argument against the role that the states play within the American constitutional order, and thus from the argument against federalism itself. President Reagan liked to remind Americans that, far from serving as regional administrative areas of the nation-state, the states are the essential building blocks of America’s political, legal, and civic life.
In our era of viciously divisive politics, the states are arguably more necessary than they have ever been. Critics of the Electoral College bristle at the insistence that it prevents New York and California from imposing their will on the rest of the country. But the Electoral College guarantees that candidates who seek the only nationally elected office in America must attempt to appeal to as broad a geographic constituency as possible — large states and small, populous and rural — rather than retreating to their preferred pockets and running up the score. The alternative to this arrangement is not less political contention or a reduction in anger; it is more of both.
In addition to protecting the political diversity for which the United States is famous, the Electoral College brings with it a number of practical advantages that are crucial to good government. Under the current system, the result of presidential elections tends to be clear almost immediately — there is no need, for example, to wait three weeks for California to process its ballots; it is nigh-on impossible for voters to return a tie or disputed outcome; and, because presidential elections are, in effect, fifty-one separate elections, accusations of voting fraud and abuse hold less purchase than they would if all franchisees were melted into a single, homogenous blob. The freak occurrence that was Bush v. Gore is often raised as an objection against the status quo. Less attention is paid to the obvious question: What if that recount had been national?
Impressively, Elizabeth Warren’s plan for straight abolition is not the worst reform being touted at the moment. Impatient at the lack of progress that the #Resistance has made in pulling the wiring out of America’s constitutional engine, a handful of states have adopted the “National Popular Vote” plan, which binds their electors to cast their ballots for the candidate who wins a majority of votes nationwide. Until enough states have signed on to tip the balance past 270 — and, indeed, until the inevitable litigation has been concluded — adoption of the NPV will remain purely symbolic. Should it be put into action, however, it would achieve the remarkable feat of removing all of the benefits that the Electoral College provides while preventing the electors of each state from voting for the presidential candidate whom a majority in that state had picked. Who knew that the outsourcing craze would extend to democracy?
The U.S. Constitution is a complex document that, as Whitman might have put it, contains multitudes. At once, it boasts guarantees of democracy and protections against it; hosts an outline for national action, and a blueprint for localism; and serves as a vehicle for the majority, while including guarantees that the most significant decisions must be broadly agreed upon. The Electoral College is one of the many finely tuned institutions within the charter that have ensured stability and continuity in America for more than two centuries. To destroy it in a hail of platitudes, civic ignorance, and old-fashioned political pique would be a disastrous mistake.
by Joel Goodman • The Federalist
Some disparage the Founding Fathers’ distrust of the population. They constructed a representative republic rather than a pure democracy, even in a time when voting was limited to white yeomen—those who owned land and had what was considered a “stake in the country.”
The example of the French under Napoleon Bonaparte, who were constantly engaged in referendums that determined the amount of authority Napoleon should have, provide an example of why the Founders eschewed democracy. These referendums were direct votes, considered to be the most democratic of all voting methods. Each vote granted Napoleon more power until he became an absolute emperor over the French people. The French democratically and freely voted away their own liberty.
It appears the American Founders had presaged the events in France by examining the history of earlier democracies. The reasons America is a republic are more basic. Continue reading
The presidential electors have a constitutional duty to vote for the person best-suited to be president, regardless of whether that person is Donald Trump.
By James Heaney • The Federalist
On November 8, Americans cast their votes, and Hillary Clinton won more of them. In most democracies, that would make her the winner—and the next president. But she isn’t.
This was not a stolen election. It is not an error in our system. This is by design.
America’s Founding Fathers were too wise to establish a national popular vote for the highest office in the land. Instead, they created an Electoral College. It spreads the power to elect the president across the country, with every state getting a certain number of votes, usually winner-take-all. This system means any would-be president has to win support from a broad coalition that encompasses many diverse states. Continue reading
Diffused democracy weakens centralized power. This is why Democrats hate it.
By David Harsanyi • The Federalist
This week, anti-Trump protesters hit the streets in big cities around the country, chanting “This is what democracy looks like!” Yes. That’s the problem.
For many Democrats, the greatest political system is the one that instills their party with the most power. Now that it looks like Hillary Clinton will “win” the fictional popular vote over Donald Trump, people — not just young people who’ve spent their entire lives being told America is a democracy, but people who know better — are getting hysterical about the Electoral College. Not only is it “unfair” and “undemocratic,” but like anything else progressives dislike these days, it’s a tool of “White Supremacy—and Sexism.”
If liberals truly believe majoritarianism is the fairest way to run a government, then why shouldn’t 50 percent of states be able to repeal constitutional amendments? (Democrats only run only 13 state legislatures. But, you know, when it’s convenient.) Continue reading
My last column on the Electoral College prompted a number of thoughtful responses, so I would like to deal with those, and then make some general points in (qualified) support of the Electoral College itself.
One reader produced polling results demonstrating that support for the elimination of the EC and its replacement with a direct popular election of the president runs between 70 and 80 percent in every state in the country.
With opposition like that, it is quite astonishing that the EC can survive. Surely it must have some things going for it. I shall try to explain what those are as I go along. Continue reading
Regular as clockwork, every four years, we get calls for scrapping that archaic relic of the 18th century, the Electoral College. An institution unique to the U.S. political system, the EC takes a beating for occasionally producing a president who was not elected by a majority of the voters.
The issue is timely, because Virginia is considering a change in the way it allocates its Electoral College votes, and some conservative groups are salivating that this change, if emulated in other states, could enhance Republican presidential prospects. Their “evidence” is that if this change had been in effect in only five states, Mitt Romney would have won the election last year
What is this “silver bullet” of reform, and what would be its real world effects? Let’s take a closer look. Continue reading