Assault on the electoral college

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There was considerable angst after Donald Trump was elected president in 2016 despite being bested by Hillary Clinton in the national popular vote (NPV). Reviewing the matter, however, SAFE found no warrant for changing the presidential election ground rules. Electoral college serves valid purposes,
11/14/16.

Summing up, we have suggested that the electoral system was adopted for valid reasons historically, that the system as it has evolved continues to give appropriate representation to the various geographic areas of the country, and that an NPV system would introduce new delays and controversies without any clear-cut benefit (partisan considerations aside). Or to paraphrase an old saying, “the system isn’t broken, so don’t try to fix it.”

Nevertheless, calls for the abolition or “reform” of the electoral college continued, and now – with the presidential race for 2020 heating up - a procedural workaround could achieve critical mass. So perhaps it would be timely to revisit the subject.

A. Update – Hillary Clinton’s NPV lead kept growing after our 11/14/16 entry, ending at 2.9 million votes. Certified NPV results: Clinton 65.9M votes (48.02%); Trump 63.0M votes (45.93%), All other 8.3M (6.05%). 2016 presidential general election results, uselectionsatlas.org, accessed 4/4/19.

A campaign is underway to forge a multistate compact, which would require state electors to vote for the candidate receiving the highest NPV. As of 11/12/16, the compact had been enacted by 10 states and the District of Columbia with a total of 165 electoral votes. The signup now stands at 14 states (including Delaware) and DC, with a total of 189 electoral votes. Status of NPV bill in each state, accessed
4/4/19.

If states with another 81 electoral votes signed up, the NPV compact could enter into effect for the 2020 elections. Determined opposition in “red” states may block this drive, however, so proponents are working hard to defuse conservative opposition.

B. Historical background – Here’s the basic rationale for the NPV compact: It’s inconsistent with democratic principles to award the presidency based on electoral votes, or – to state the point affirmatively – all individual votes should be given equal weight in determining the outcome of presidential elections.

However, the federal government was not designed to be a democracy. The words “democracy” or “democratic” are not to be found in the text of our founding document, while Article IV, Section 4 of the Constitution states that “the United States shall provide to every State in the Union a Republican Form of Government . . .”.

Several alternatives for choosing the president were considered by the founders, such as appointment by an elected national legislature with the states represented based on population (Virginia plan), appointment by state governors (Elbridge plan), or appointment by an elected national legislature with each state equally represented (New Jersey plan). However, direct election by the voters was not one of them. Federalist Paper #68: Your vote counts, youtube.com,
video (8:46, first two minutes covers the alternatives).

Citizens are not empowered to vote for the president under the electoral college approach (Article II, Section 1). Instead, electors charged with voting for presidential candidates are to be “appointed” by the several states “in such Manner as the Legislature[s] thereof may direct.” And electoral votes are not proportional to population; each state gets a number of electoral votes equal to its number of senators and representatives (a compromise between the interests of big and small states).

As for the perceived merits of the electoral college approach, the argument went basically as follows. Direct election by a national electorate could turn presidential elections into a popularity contest with unfortunate results, so a more deliberative process was needed. Let each state select a slate of qualified electors, who would in turn vote for presidential candidates. If no candidate received a majority of the electoral votes, the US House of Representatives would select the winner from the top 5 vote getters
Federalist paper 68, The mode of electing the president, Alexander Hamilton.

[Thus] the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him a successful candidate for the distinguished office of President of the United States. It will not be too strong to say, that there will be a constant probability of seeing the station filled by characters pre-eminent for ability and virtue.

For several decades, many states entrusted the selection of electors to their respective legislatures. Origins of the electoral college, Randall Holcombe, mises.org,
11/9/2000.

The current selection of electors is by a restricted general ticket, which allows voters only to vote for a bloc of electors who represent a specific candidate, but this method of election was not well-established until at least three decades after presidential elections began, and the most common method for selecting electors early in the nation's history was to have state legislatures do it.

The winner of the presidential race was twice decided by the House of Representatives. In 1801, the House broke an electoral vote tie between Thomas Jefferson and Aaron Burr. In 1825, following a 4-candidate campaign, the House chose John Quincy Adams over Andrew Jackson despite Jackson’s substantial edge in the national popular vote.

By 1828 when Andrew Jackson was elected president on his second try, the balance had tipped to voter selection of electors (which remains the pattern to this day).
Ibid.

In the election of 1820, nine states still chose their electors in their state legislatures, but by 1824, when John Quincy Adams was elected, only six did. In 1828, when Andrew Jackson unseated Adams to become president, only two states had their legislatures choose their electors.

Since 1828, the presidential winners based on electoral votes have generally won the NPV as well. The exceptions were in 1876 (Rutherford B. Hayes), 1888 (Benjamin Harrison), 2000 (George W. Bush), and 2016 (Donald Trump). Presidents winning without popular vote, D’Angelo Gore, factcheck.org,
12/23/16.

C. Time for a change? – The outcomes of the 2000 and 2016 elections remain a sore point for supporters of the losing Democratic candidates, providing fuel for proposals to change the rules so “nothing like this can ever happen again.” And as the original intent that presidential selection be delegated to electors appointed for the purpose by the several states has essentially been abandoned, one could certainly argue for completing the transition to a more democratic process by switching to an NPV system.

The current version of the electoral college system offers some practical advantages, however, which were discussed in our 2016 analysis and continue to have merit. Electoral college serves valid purposes,
11/14/16.

•Giving disproportionate weight to the presidential preferences of smaller states was one of the compromises required to get the original states on board with the Constitution, and it shouldn’t be discarded lightly.

•People matter, but so does geography, i.e., there is value in ensuring that all areas of the country have a say in who is elected president rather than subordinating the interests of “flyover country” to those of the populous coastal areas.

•Without the electoral college, presidential elections could become a nightmare with recounts in a close national election going on for months in every state of the Union.


Ergo, if a change was to be made, it should be done using the method prescribed for constitutional changes – an amendment ratified by three-fourths (38 or more) of the states – rather than by relying on a multistate compact that could be adopted by minority of the states, say 20, while ignoring the wishes of all other states.

Granted, some Democratic senators have proposed a constitutional amendment to do away with the electoral college. Senate Dems try to kill electoral college, Everett Burgess, poltico.com,
4/1/19. The chances that both houses of Congress would approve such a measure by a 2/3 majority seem so remote, however, that the proposal is presumably only for show.

D. Partisan considerations – It’s been suggested that Republicans should join with Democrats in supporting the NPV compact as the electoral college can effectively disenfranchise voters of either party. Why should Republican voters in Delaware (a blue state) bother to vote in presidential elections, for example, knowing full well that their votes will effectively be ignored? Republicans should support a national popular vote, Michael Steele & Saul Anusiz, News Journal, 3/13/19.

Not since 1988, when the Republican ticket of George H.W. Bush and Dan Quayle won Delaware’s popular vote along with its three electoral votes, have this state’s GOP voters made one iota of difference in determining who becomes president. It’s all due to the “winner take all” electoral system, and the system needs to change so that a vote in Delaware will count as much toward electing a president as a vote in Pennsylvania, Florida, Ohio or any other state.

This line of argument overlooks the possibility that the chances of a Republican candidate being elected president – in 2020 or any other year – would be substantially reduced by the NPV compact. Some political observers have suggested that this would be the result, and in our view they are probably right. Republicans resigned to Trump losing 2020 popular vote, David Drucker, Washington Examiner,
3/22/19.

“California, Illinois, and New York, make it very, very difficult for anybody on our side to ever again to win the popular vote,” said David Carney, a Republican strategist in New Hampshire. Asked if he expects Trump to defy the odds next year, Carney said flatly, “No,” but added, “the president shouldn’t worry about it. Two hundred seventy [electoral votes] — that’s what people remember.”

Meanwhile, other voting law changes are undermining the integrity of the electoral system and increasing the risks of electoral fraud – probably with a net benefit for Democrats. There has been ample evidence of the damage already done by the spread of early voting, voting by mail, etc. around the country. US electoral system is faltering,
12/10/18.

And several bills have been introduced in the Delaware General Assembly that would create similar issues in the First State. Delaware’s voting system works: Why change it? DE Sen. Gerald Hocker, News Journal,
3/27/19. Problematic Delaware election reforms, CC of DE newsletter, 4/1/19.

If the GOP hopes to remain competitive, it should not stand idly by while the electoral system is overhauled to its strategic detriment.

E. Unintended consequences – For the reasons stated, we think the electoral college is working reasonably well and does not need to be changed. But if Americans decide otherwise, the change should be made by a constitutional amendment rather than a procedural gimmick like the NPV compact.

Accordingly, Republicans should have no qualms against trying to defeat this proposal, and if the drive fell short of recruiting additional states with 81 or more electoral votes so be it. If the drive succeeded, however, here are two additional points to consider.

LITIGATION - Let’s say the NPV compact did achieve critical mass, for example in May 2020. Proponents would presumably attempt to put the compact into effect for the November presidential election while opponents would be filing lawsuits in an effort to block it, turning what already promises to be a contentious political contest into a legal slugfest. Forget any hopes for a rational discussion of the issues during the presidential campaign, because such any such debate would be drowned out by the legal arguments and counterarguments.

Could this situation be defused by filing a preemptive lawsuit now? Probably not, as the legal issue would be conjectural until the NPV compact attracted states with the requisite number of electoral votes. Challenge to National Popular Vote must wait until compact becomes active, Todd Sheppard, freebeacon.com,
3/16/19.

And would there be a winning legal argument to block the NPV compact in court? Hard to say, but here’s one argument that seems appealing: Under Article 1, Section 10 of the Constitution, the compact (an agreement between states) would require the consent of Congress – which would not likely be granted so long as Republicans controlled at least one house of the US Congress. Thanks to DE Sen. Brian Pettyjohn, who suggested this line of attack in a note to his constituents.

DETERMINING WINNERS – Under the NPV Compact, the winner of the presidential race would not require a majority of the NPV but only a plurality. Imagine a situation in which three candidates attracted significant voter support, with the following results.

Screen Shot 2019-04-07 at 2.19.54 PM

Candidate A would be declared the winner under the NPV compact, but how would Americans react? Without knowing more about the candidates it’s impossible to know, but one might imagine Candidate A not being acclaimed as a legitimate winner.

Note that such a situation probably wouldn’t arise under the present ground rules, since Candidate B – who had demonstrated widespread national acceptance - would presumably win a majority of the electoral votes.

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In sum, the NPV compact seems like a bad idea, which should never have gotten as far as it has and hopefully won’t get any further.

If there is to be serious consideration of picking presidents based on NPV, we would suggest that the subject be reserved for the convention of states that has been proposed to consider conservative amendments to the Constitution. Mississippi is #15! conventionofstatesaction.com,
3/26/19.

The current NPV and COS blocs are of nearly equal size (equal number of jurisdictions, nearly equal number of electoral votes). Only one state (MD) has signed up to support both efforts, which suggests that the two blocs are on opposite sides of the ideological spectrum.

Screen Shot 2019-04-07 at 2.20.13 PM


Twenty-one states with 168 electoral votes remain uncommitted to either side. The NPV project would have to nab about half of these states to hit its 270-electoral votes target, which might be doable but seems like a stretch. As for the COS goal (34 states to call for a convention of states), it seems out of reach barring some significant change in circumstances.

Perhaps we’ll have to struggle along with the present Constitution for a while longer. Considering that it’s served the country well for some 230 years, that may not be a bad thing.

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#Hits the nail on the head, especially the point re increasing vulnerability to voter fraud! Forwarded the link to DE Sen. Anthony Delcollo, with whom I had previously exchanged comments on this issue. – SAFE director

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