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The Plot to Undermine the Electoral College

In the 2016 presidential election, Hillary Clinton won the popular vote for president by just under three million votes.  But under the Constitution’s electoral voting system, Clinton lost the election to Donald Trump by a decisive margin, with a final total of 304 to 227.  Although this was only the fifth instance in United States history where the popular vote winner lost the electoral vote, it was notable because it was the second such occurrence in the last generation.  In the 2000 election, Al Gore won the national popular vote by a little more than half a million votes, but famously lost the electoral vote after losing Florida’s popular vote.  Prior to 2000, the last time the popular vote winner lost the electoral vote was 1888, when Grover Cleveland secured just over 90,000 more votes than Benjamin Harrison, yet lost the electoral contest.

The 2000 and 2016 election results are unusual in the longue durée of United States history, but they have come close together. Accordingly, constitutionalists should rightly be fearful of, and pay heed to, the recent calls for reform of the electoral system.  One possible route to reform is the amendment process of Article V of the Constitution.  This is the route most recently suggested by Rep. Steve Cohen (D-TN), who represents Tennessee’s Ninth District.  On January 3, 2019, Rep. Cohen introduced H.J. Res. 7, which would abolish the electoral college and make the elections of President and Vice President decided by a national popular vote.  Of course, this is hardly novel—the Electoral College has been the subject of more constitutional amendment proposals than any other constitutional provision.  But enacting a constitutional amendment is very difficult.  Article V requires two-thirds support in both houses of Congress and ratification by three-fourths of the states.  This double-supermajority hurdle has resulted in only 27 successful amendments out of the many thousands of proposed amendments in the history of our republic.  All previous proposals to alter the Electoral College have failed, with the notable exception of the Twelfth Amendment of 1804, which was enacted in response to the Adams-Jefferson election of 1800.  Unsurprisingly, then, Rep. Cohen’s proposal seems to have the same chance of enactment as earlier proposals: it only has nine co-sponsors (all of whom are Democrats), there is no companion proposal in the Senate, and no action has been taken on Cohen’s bill in committee.

Although the prospects are dim for any constitutional amendment to the Electoral College system, there is an alternative route that reformers are attempting to take: an interstate compact.  Article I, Section 10 of the Constitution implies that states can make agreements, or “compacts,” with one another.  The specific text provides: “No State shall, without the Consent of Congress, … enter any Agreement or Compact with another State.”  Interstate compacts have usually been made for non-federal purposes, such as adjusting state boundaries or forming regional interstate agreements on handling waste disposal or regional lotteries.  Importantly, the Constitution’s text provides that interstate compacts must be approved by Congress, and there have been only a few instances when the Supreme Court has allowed a compact without congressional approval.

Seeking to exploit this Constitutional provision, proponents of Electoral College reform have submitted to the states the National Popular Vote (NPV) interstate compact. The NPV plan proposes to award states’ electoral votes to the winner of the national popular vote. In practice this means a state abiding by the NPV would award electoral votes to a national vote-winner, even if the majority within the state did not prefer that national winner. Currently, all but two states award their electoral votes to the winner of the popular vote within the state. As we shall see, this is a largely silent, invidious, and unconstitutional plan to abolish the Electoral College.

The effort is silent because it is being enacted on a state-by-state basis and has received only sporadic local media coverage, with very little national attention.  Once the plan has been enacted in a number of states equal to the 270 electoral votes needed to win the presidency, then the NPV plan will go into effect in each enacting state.  Fifteen states and the District of Columbia have enacted the plan, totaling 196 electoral votes.  As of this writing, Oregon is the latest addition to the roster of states that have enacted the NPV.  On June 12, 2019, Governor Kate Brown signed SB 870 into law.  The remaining 74 electoral votes could be obtained if only a handful of states enact the compact.

When the Framers created the Electoral College, they thought the choice of executive would be made by a group of well-informed, prudent electors, who would be familiar with the character of those running for president.  Historically, however, the Electoral College has ratified the popular vote preferences in the states, within the context of the two-party system.  Nevertheless, the historical function of the Electoral College has served the nation better than the Framers envisioned.  Candidates must compete on a national scale within the two-party system, often in “battleground states,” where it is uncertain how the majority in that state will vote.  Battlegrounds shift over time, so each candidate must take into account the large national framework and campaign in states that would be ignored if the national popular vote were the basis for selection.

The NPV plan seeks to replace the Electoral College without amending the Constitution.  NPV proponents contend no constitutional amendment is needed because the Constitution leaves the appointment of electors to the states and an interstate compact can reflect the will of the states.  Although under Article II, Section 1 states can appoint electors “in such Manner as the Legislature thereof may direct,” there is no constitutional basis for abolishing the state-based electoral system in agreement with other states.  Proponents agree the plan is subject to the Compact Clause.  However, they claim Congress is not required to consent to the NPV.  The Supreme Court has upheld a few compacts that lacked congressional approval, but only those that do not disadvantage states that have not joined the agreement and do not interfere with federal purposes.  For instance, the Court has upheld agreements on state boundaries that lacked Congress’s imprimatur.  However, state boundaries or regional commissions are a far cry from altering the federal system created especially for choosing the President.

There are several legal issues that prevent the states from converting the presidential election system into a popular vote system via interstate compact.  First, compacts must be submitted to Congress for approval if non-member states are disadvantaged by the compact.  Under the NPV, high-population states will have an advantage over low-population states, or states that do not join the compact.  For instance, a less-populated state that is competitive – that is, the state is not a “safe” state for either major party – in the presidential election would be disadvantaged by not being a member of the NPV because candidates will seek votes in high-population areas and in safer states, to the exclusion of low-population states.  Under the Electoral College system, a low-population, competitive state will attract candidates because the state’s electoral votes are needed.

Second, Congress must approve any compact that interferes with the exercise of a federal function or federal authority. The Electoral College is a manifestly federal institution; it was created by the Constitution, with the objective of having the president selected within the context of the states, not the general populace.  The states are not merely administrative units of the federal government; they are sub-national sovereign polities that determine how their populaces participate within a national process.  Accordingly, the NPV must be submitted to Congress for approval because the NPV seeks to both advantage member states and alter an institution created in the Constitution.

Finally, the Supreme Court has held that congressional approval of an interstate compact converts the agreement between states into federal law.  Under the Supremacy Clause of Article VI of the Constitution, Congress can only enact laws that are in accord with the Constitution.  Congress could not enact a regular statute to convert the Electoral College into a national popular vote; a constitutional amendment is needed for that.  Therefore, if Congress’s approval of any interstate compact converts the compact into federal law and Congress is required to review the NPV, then Congress cannot constitutionally approve the NPV because Congress cannot enact on its own what the NPV signatory states seek to do through an interstate compact.

Constitutionalists should not content themselves with simply reminding people that the dichotomy of winning the popular vote but losing the electoral vote has only happened five times out of the 48 elections since 1824.  The two most recent times have been within the last 20 years, and constitutionalists cannot predict with certainty that more such elections will not happen more frequently in the coming years.  In short, we cannot rest upon history.

As such, we must take seriously all efforts to convert the electoral vote system into a national popular vote and combat them with arguments premised not only upon history, but also upon what kind of nation we will have if the presidency is determined by a national popular vote.  It would mean the demise of federalism, with states playing no effective role in the election of the president.  It will mean regional candidacies, with campaigns for a national office concentrating on one region to the exclusion of all others.  It will consist of contests with many candidates, representing narrow special interests, hoping to gain the barest of pluralities in order to win.  (If party poohbahs fear they have only marginal control now over who is the standard bearer, they haven’t seen anything yet!  The NPV could mean the demise of political parties, at least in relation to the presidency.)  It will mean a further aggrandizement of the presidency in comparison to Congress, which means further erosion of what little self-government is left at the national level.

The constitutional amendment now languishing in a House committee has little chance of becoming law.  But the NPV is a real and growing threat, to which most media have paid only sporadic attention.  The NPV compact is a poor alternative to the Electoral College and is manifestly unconstitutional.  Once it goes into effect, the only institutional hope left to constitutionalists will be the Supreme Court.  Currently, that is a court that is divided five to four on controversial constitutional issues.  A single justice’s vote is a thin reed upon which to hang our hopes for preserving this vital constitutional institution.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on July 18, 2019 at 10:18:58 am

This is disturbing, especially considering the distinct possibility that the popular vote margins for Gore and Clinton can easily be attributed to illegal voters (native and/or immigrant), and more of the same is likely in the future.

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R O
on July 18, 2019 at 10:20:56 am

Living far from the United States, it is difficult for me to understand the "winner takes all" rule that determines that 100% of the electoral votes of each state goes to the party that obtained the most of the votes, even if that result turns out being a slim majority. Instead of dicussing the NPV alternative, wouldn't it be more fair to allocate the electoral votes of each state in proportion to the popular vote of that state?

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Martín Lagos
on July 18, 2019 at 10:52:39 am

Each state can choose to join this compact or not, yes? And in the absence of Congressional authorization, states would be free to drop out, yes? If so, I don't see how this compact conflicts with a constitution that authorizes states to pick electors on any basis they choose.

Indeed, does the compact have an enforcement mechanism? Could a state that found itself disadvantaged simply decline to comply with its commitments for allotting electoral college votes?

And if ultimately the compact does not rely on an interstate enforcement mechanism, would it MATTER if a court found the compact unconstitutional? If at base the "compact" is nothing more than the individual, voluntary choices of participating states, what could courts do about it? After all, a court can find that a neighborhood's restrictive covenants are unenforceable in court--but that ruling does not block neighbors from voluntarily choosing to comply with the covenant's terms.

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nobody.really
on July 18, 2019 at 11:10:28 am

There has been massive effort to document the idea of some large amount of illegal voting. The effort has been a bust. Mostly it documented duplicate voter registrations by native-born (white, elderly) Americans who own property in multiple jurisdictions.

That said, your larger point remains: States manage their own voting systems. Those systems can be corrupted. The current electoral college system limits the amount of influence any one state's corruption can have to the outcome of the presidential election. A popular vote system might lack this safeguard.

For example, imagine that sparsely populated Wyoming joins the compact, and in the next election reports that 1 billion of its state's citizens voted for Trump. The claim is absurd, but since Wyoming is the ultimate authority over its own voting system, who is in a position to challenge them? In contrast, the current system would limit Wyoming's influence to its three (?) electoral college votes, regardless of how many total votes Wyoming reported.

Perhaps the people who have proposed the compact have devised a way to avoid this problem....

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nobody.really
on July 18, 2019 at 15:08:17 pm

I do think this compact requires authorization from Congress. But if that authorization is given, it seems like an appropriate compact to me. While Congress cannot change this without an amendment, states have powers that Congress doesn't have alone. If Congress authorizes the compact, then such states could work together even if it influences a federal function.

Its a bad idea from a policy angle, and Congress and the states shouldn't go along with it. The biggest problem is with recounts. Recounting a few major counties in Flordia is one thing. Trying to recount the entire country is an impossible task.

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Devin Watkins
on July 18, 2019 at 16:34:59 pm

Well, there is the C3ensus count after all. Last time I checked Wyoming did not have a billion voters.

Oops, you may be right - now that we cannot query for citizenship, all those illegal cowboys and Basque sheepherders in the hills of Wyoming may now come to the fore.

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gabe
on July 18, 2019 at 20:28:09 pm

You can't understand the "winner take all" idea of the electoral college but you can understand the winner take all idea of a national popular vote? Look, you're not from the states so you probably don't understand our founding.

We are not a country the way one would think. We are a United coalition of independent states. The idea is that the massive population of California and Florida can not dictate policy for North Dakota or Alaska

As such, in a republic, we cast votes for our elected officials to decide the laws. Something liberals I can't can't figure out is that America does not have an election every 4 years for president. Instead, we have 51 separate elections to send our representatives from every area to cast their choice to lead this plucky coalition.

It's really not hard to understand or confusing in any way, unless you don't have the ability to think for yourself.

I hope that clears up a little for you. Cheers from the states

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James
on July 19, 2019 at 02:44:15 am

I think NPV is an excellent idea. And right after it goes into effect, red states should create their own compacts that reverse Roe v Wade and nullify all federal gun controls (but only for the states who agree to the compact, you see).

What's that, red states couldn't do that? Flies In the face of judicial review? Oh, I get it now: see, if the Constitution doesn't expressly prohibit a group of states from undermining an unwritten, implicit characteristic of the current federal order, they can do it... as long as it aggrandizes the ideological left.

Seriously, in the era of SCOTUS claiming words mean the exact opposite of their authors' intent (obamacare ruling), WHO CARES? There is no longer any objective meaning to the Constitution at all.

If you're a power-worshipping totalitarian, ConLaw is an amazing, delicate, and labyrinthine system through which the Constitution always sanctions anything you want. If you're anything else, ConLaw is a mildly amusing game to be played for fun and profit right up until you and your way of life are steamrolled into oblivion.

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Jeremy
on July 19, 2019 at 10:29:39 am

Living in the United States, it's difficult for me to understand why people prefer a parliamentary system with just two divisions of power–judicial and legislative–instead our presidential system which adds a third–executive–branch. In parliamentary systems the people don't get to vote for the chief executive at all. Rather, their elected representatives select the chief executive. It seems like a rather feudal system to me, not trusting the voters to select the head of government.

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CapitalistRoader
on July 19, 2019 at 13:27:44 pm

Any state that isn't currently competitive can get more attention from candidates by merely deciding not to award Electors on a winner take all basis. You could do it proportionally, by Congressional District with the overall winner of the state getting both Senate votes if the winning margin in the state was more than X%... Any kind of formula would be OK with me.

The National Popular Vote proposal dilutes the overrepresentation of smaller states that was the grand compromise that launched the Constitution. Furthermore, some states will have far laxer control of voter registrations, and thus boost their influence in the outcome.

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Doug Wenzel
on July 19, 2019 at 14:21:25 pm

This article is totally misguided. There is and was no such thing as a "popular vote" at the national level. Had such a vote been the criterion for election, the candidates would have run differently, campaigned more in some sates and less in others, and spent their monies differently. When you start with a false premise, as this author did, the conclusions and points one advocates lack credibility.

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Robert Park
on July 19, 2019 at 18:00:55 pm

The "NPV" is a largely Democratic party attempt to make election of the president a parliamentary procedure where the bi-coastal blue states (NY, NJ, Florida, California, Oregon, Wash.) would prevail because of their larger populations. It would leave the less populated states out of the competitive process for presidential election, since a candidate could be theoretically elected with only the top 15 states' eligible voters leaving the remaining 35 states of the Union completely out of the process for election of the president.

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Peter Arena
on July 19, 2019 at 23:31:33 pm

Any state that isn’t currently competitive can get more attention from candidates by merely deciding not to award Electors on a winner take all basis.

1. On a theoretical matter, it is not clear to me that this is a powerful strategy. It merely means that candidates who invest their scarce resources in your state are likely to see SOME results, but perhaps smaller results than if they invest in a winner-take-all state.

2. As a practical matter, I think Maine and Nebraska already do this. Has this strategy actually garnered more attention for these states?

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nobody.really
on July 19, 2019 at 23:49:42 pm

Whereas under our current electoral college system, a president can win with the support of only 11 states and roughly 23 percent of the vote.

But I agree: NPV seems to be an effort by Democrats to lock down the electoral college votes of swing states which happen to be temporarily in the control of the Democratic Party.

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nobody.really
on July 20, 2019 at 20:06:05 pm

We need a counter campaign that calls for electoral votes being counted by house district. That would make California, Texas, Florida, Pennsylvania, and New York highly contested states, while producing a more fair distribution of votes. It also favors republicans (for now).

Either way, democrats will solidify the electoral college within a decade, due to the mega states I listed above. The way we neutralize far left politicians is to also advocate for more representatives. If we added to the House, and had each representative elected by fewer people, that would mean they are more susceptible to their constituency.

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M
on July 22, 2019 at 17:17:28 pm

We need a counter campaign that calls for electoral votes being counted by house district.... It ... favors republicans (for now).

Ha--I wouldn't have guessed that, but so it does. Democrats win more congressional seats, but they're concentrated in fewer states.

Either way, democrats will solidify the electoral college within a decade, due to the mega states I listed above. The way we neutralize far left politicians is to also advocate for more representatives.

Eh. I suspect the controlling variable will be which party wins the state house, and thus controls redistricting. Since gerrymandering is constitutional, states will be free to gerrymander to their heart's content. With sufficiently rigorous gerrymandering, a state can reduce the number of congressmen representing the minority party to zero. Democrats cast the majority of votes in Florida in 2018, yet Republicans got 14 of the 27 congressional seats. If Republican retain control of the state house, they may claim control of the remaining 13 congressional seats--but if Democrats claim control, they may flip the 14 Republican seats.

Ah, democracy....

Throughout the nation, we may begin to see congressional districts that look pie slices radiating out from urban centers.

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nobody.really
on July 26, 2019 at 20:07:52 pm

Test...I have tried to post a comment three times but it will not post.

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Lisa Elaine Scott
on July 26, 2019 at 21:22:36 pm

Allocating Electoral College votes by congressional district, as is often suggested, would incentivize Gerrymandering. And instead of Swing States, we would have Swing Congressional Districts. Yeah, now there's an improvement.

Of course, if you are a member of the MINORITY PARTY, this is what you want because this is key to keeping power.

It's a shame that Mr. Drake isn't willing to be honest about why we have the EC. I would invite everyone to read The Records of the Federal Convention of 1787, and I would direct your attention specifically to the Thursday, July 19 entry where Madison makes clear that if the election of the President cannot contain the population bonus afforded to Slave States under the three-fifths compromise, the South would never see one of her own elected. The numbers just weren't there. So from the beginning, the EC has been about giving BONUS REPRESENTATION to low-population states.

Well, if you're okay with that, fine but at least we should be having an honest discussion instead of covering up the truth with the notion that the Founders' primary concern was that "the choice of executive would be made by a group of well-informed, prudent electors, who would be familiar with the character of those running for president."
That was not the predominant rationale for the EC.

Yes, that rationale was mentioned during the Convention and emerged in the Federalist Papers as an argument for ratification, but that fact doesn't change the fundamental reason that the EC was chosen over all of the other methods, including a popular vote which many of the delegates were in favor of.

You can want to keep the EC. You can support over-representation for low-population states. I won't try to convince you that all votes should hold equal weight. But at least I would ask you to be honest about the origins of the EC and the purpose that it originally served.

Our first four-out-of-five Presidents came from Virginia. This was a direct result of the EC. It is very likely that without that promise of a population bonus, the Southern states would not have ratified the Constitution. The EC served its purpose then, and we should be honest about the purpose it serves today.

And the fact that there has never – not once - been an election where a slate of wise and esteemed Electors overturned an error of the electorate should be enough to put this myth to rest.

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Lisa Elaine Scott
on November 02, 2020 at 16:42:23 pm

In some circles repetition substitutes for analysis. So I recommend that you repeat your repeatedly-made point three of four more times just in case a Biden-like reader missed it the first four times you said it.

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timothy l Harker
on September 23, 2019 at 08:10:04 am

[…] been proposed: a constitutional amendment, increasing the number of representatives in the House, an interstate compact requiring state electors to vote for the national candidate receiving the most popular votes, and […]

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A Judicial Takeover of the Executive Branch

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