Left Tries an End-Run Around the Electoral College

Liberals have concocted yet another method to get around the founders’ Constitution. They plan to elect the President in 2012 on the basis of the national popular vote, rather than by a majority of the electoral college.

Although earlier progressive innovations have confused the process, the Constitution is quite clear that the President is chosen by electors, appointed by each state “in such manner as the legislature thereof may direct.” Like the bicameral Congress, the presidency was infused with federalism–the states as states would have a role to play in the choice of the chief executive.

Indeed, the framers expected that, after George Washington, few men would have sufficient stature to command an electoral college majority. Thus the President would be chosen by the House of Representatives, by a special method in which each state delegation would cast one vote. But in time, the political parties produced a system in which the popular vote majority almost always was the electoral vote majority.

More important, the founders wanted to make sure that the President could not claim to embody the people. The presidential election would not be a plebiscite, of the kind that produced Caesar, Napoleon, or other demagogic dictators.

In short, the Electoral College would keep the President a constitutional president–limited and balanced by the other levels and branches of the constitutional system.

This system has frustrated big-government liberals who envisioned the President as the head of a European-style centralized bureaucratic state. Proposals to abolish the Electoral College perennially arose. Today, they arise from Democrats who still believe that George W. Bush stole the 2000 election.

But a legitimate constitutional amendment to abolish the Electoral College would be all but impossible. The less populous states derive more electoral power from the fact that electors are apportioned on the basis of total congressional representation–the number of representatives (derived from population) plus the number of senators (derived from state equality). At the extremes, California has over twelve percent of the nation’s population, but only about ten percent of the electoral vote; Wyoming has 0.18% of the population but 0.56% of the electoral vote. Overall, about eighteen states suffer slightly reduced electoral college power, while about thirty-two gain electoral college voting strength.

So the current scheme is the “National Popular Vote Initiative.” It aims to have a number of states with an electoral college majority agree to cast their electoral votes to whomever wins a national popular vote majority. To date, eight states and the District of Columbia, having 132 electoral votes–about half the required total–have signed on. California and Illinois are the largest.

The principal problem is that this effort to circumvent the Constitution’s electoral college provision, and to evade the Constitution’s amendment provision, is itself unconstitutional.

As Pepperdine University Professor Derek Muller points out in the Election Law Journal, the National Popular Vote Initiative is an interstate compact. Article I, section 10 of the Constitution says that “No state shall, without the consent of Congress… enter into any agreement or compact with another state.”

NPVI advocates deny that their gambit is an interstate compact requiring congressional consent. They rely on Supreme Court rulings that hold that the compacts clause “cannot be read literally.” They claim that the compact clause was only intended to prevent the states from usurping powers that belong to the United States.

But, as Muller points out, the smaller, non-compacting states lose political power by this compact, and certainly have an interest in stopping it. The NPVI says that “Because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.” The likelihood of congressional consent before the 2012 election differs insignificantly from zero.

The Supreme Court has never considered an interstate compact that concerned voting before, and the NPVI could send us into another electoral crisis like that of 2000–like many other progressive initiatives, exacerbating the problem it proposed to solve. Does anyone really believe that California or New York would abide by its pledge if a Republican won the national popular vote? Would not they suddenly develop constitutional scruples and renege? The NPVI would be unenforceable.

The National Popular Vote movement dislikes the fact that a president can achieve an electoral vote majority with a popular vote minority. This happened in 1824, 1876, 1888, and 2000. (It is worth remarking that many Democrats expected Al Gore to carry Florida and win an electoral college majority with a popular minority–and that the early calls of a Gore victory probably depressed Bush’s popular vote.) One can make a fair case along this line. But that does not alter the fact that the Constitution provides for it. And this Constitution still represents the consent of the sovereign people of the United States until amended, as George Washington put it, by some “explicit and authentic act.”