Democrats attempt to bypass Electoral College in Presidential Elections
The most devious and cynical attempt to date for undermining our Constitution is taking place just below the radar, totally unknown to the average American. I am talking about the ongoing effort to nullify the Electoral College and circumvent the requirements of the Constitution through state law. The most recent state to join in the effort was New York, when its Senate on Wednesday, passed the National Popular Vote Bill 52-7.
The effort was started by a California based group called the National Popular Vote (NPV). NPV was organized in response to the 2000 election when, they contend, Al Gore received 500,000 more popular votes than George Bush did, yet the Electoral College gave the victory to Bush. The purpose of NPV is to bypass the Electoral College and elect the President strictly on the results of the nationwide popular vote. The allure of the idea is that deciding the winner of the Presidential race by popular vote seems more democratic.
According to NPV, “The National Popular Vote bill would guarantee a majority of the Electoral College to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would reform the Electoral College so that the electoral vote in the Electoral College reflects the choice of the nation’s voters for President of the United States.”
The plan is quite simple, Get enough states with combined Electoral College votes amounting to more than 270 to pass a state law allocating their state’s electoral votes to the candidate receiving the most national popular vote. The plan would make the Electoral College irrelevant without the messy requirement to pass a Constitutional Amendment.
“Under the U.S. Constitution, the states have exclusive and plenary (complete) power to allocate their electoral votes, and may change their state laws concerning the awarding of their electoral votes at any time. Under the National Popular Vote bill, all of the state’s electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would take effect only when enacted, in identical form, by states possessing a majority of the electoral votes—that is, enough electoral votes to elect a President (270 of 538).” ~NPV Website
Thus far, the bill has been signed into law in five states, Illinois, Hawaii, Maryland, New Jersey and Washington. New York will be number six when passed by the lower House and signed by the Governor. These six states account for 92 of the 270 electoral votes needed to put the plan into effect. An additional 30 legislative chambers representing 20 states have already passed the bill and are awaiting action by the other state chamber and/or the Governor’s signature.
At first glance, most Americans do not see anything wrong with the plan since it does make the election of the President more democratic. For most of us, attempting to understand the Electoral College and its importance, causes our brain to go numb and our eyes to glaze over. Nevertheless, since it is the Electoral College that protects us from “a tyranny of the majority”, we need to have at least a fundamental understanding of how it works and why.
When the Philadelphia Convention of 1787 was considering the method for selecting the Chief Executive, they were faced with two choices. One, elect the President by the popular vote of the people or two, elect him by a vote of the national legislature. To understand why this choice is important we have to remember that to the Founders, who were students of both history and human nature, the thought of a pure democracy was anathema. Another important fact is that the Federal Government was intended to represent the states, and the people only indirectly through their state governments.
The Electoral College plan was a compromise between the two choices. In the compromise, states were to be divided into districts and voters in each district would choose electors who in turn would vote for the President. The rise in power of political parties modified this plan somewhat but we still follow the general practice required by the Constitution, in form, if not in substance. The most important point to consider is that the NPV bill is in direct opposition to the Founders desire to avoid the election of the President by popular vote. Participants in the Constitution Convention considered that option and rejected it as being too prone to corruption and abuse.
In the NPV plan quoted above it is claimed that, “the states have exclusive and plenary (complete) power to allocate their electoral votes.” This is an outright misrepresentation of the clear text and intent of the Constitution. Article II section 1, gives the states the authority to “appoint, in such manner as the Legislature thereof may direct, a number of Electors,…” The state Legislature only has the authority to determine the manner in which electors are appointed. It does not have the authority to determine how they will vote. Neither does it have the power to “allocate” those votes to anyone other that the person for whom they were cast.
This is shown by the carefully thought out procedures for protecting the integrity of Electoral College votes and transmitting them to Congress. Both Article II and the Twelfth Amendment place the same requirements for protecting the integrity of the vote. In legal terms, it is called the “chain of custody”.
Article II: “And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.”
Twelfth Amendment: “and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;”
Even IF the states were allowed to “allocate” the electoral votes as they saw fit, there are still some major ethical questions to be considered. The “watchdog” over the Electoral Votes is the National Archives and Record’s Administration Office of the Federal Register. (NARA) In its instructions to the states, the NARA requires each state to submit a “Certificate of Ascertainment” immediately after the General Election as soon as the votes are counted and certified.
- Each Certificate must list the names of the electors chosen by the voters and the number of votes received.
- Each Certificate must list the names of all other candidates for elector and the number of votes received.
- Each Certificate must be signed by the Governor and carry the seal of the State.
The Certificates of Ascertainment, are to be prepared “as soon as election results are final” and submitted to NARA. This step is usually completed in early November. The Electors do not meet until mid-December. In order for the scheme of NPV to work, many electors would have to vote contrary to the pledge they made to the voters who elected them in the General Election. While this may be legal, no one can claim that it is ethical.
Another Constitutional hurdle the NPV must overcome is found in Article I, Section 10 that requires the approval of Congress before a state can “enter into any agreement or compact with another state”.
Based on the rate the bills have been moving, it could well be in place for the 2012 elections.Why, you may ask, are the Democrats so eager to get this scheme in place as quickly as possible? To answer this question, we only have to look at the geographical layout of country. Under this scheme, the President could be elected by just the voters of the most populous states. The majority of the voters in those states are located in large metropolitan areas. Nineteen of the twenty-five largest cities in the U.S. have Democratic Mayors and are dominated by Democratic political machines, many of them almost as corrupt as the Chicago machine that gave us Rod Blagojevich, Barack Obama, Rahm Emanuel, and Tony Rezko. These large Metropolitan Centers are strategically located to maximize Democrat votes.
On the East Coast, there is New York that has a Democrat/Republican/Independent Mayor. The rest, Philadelphia, Baltimore, Boston and Washington all have Democrat Mayors. In the Midwest, Columbus, Indianapolis, Detroit, Chicago and Milwaukee all have Democrat Mayors. On the West Coast, there are Los Angeles, San Jose, San Francisco, and Seattle.
Once the NPV plan is in place campaign money and effort need only be concentrated in the large population centers. By coincidence, it is these large population centers, controlled by Democrats that are most susceptible to voter fraud, especially with organizations like ACORN, and similar groups conducting “get out the vote“ campaigns.
It is likely that the only way Obama can win reelection in 2012, unless things change, is by massive voter fraud. The NPV plan is designed to facilitate just such an outcome. It is doubtful that the National Popular Vote Bills can pass Supreme Court muster. However, by the time they get to the Supreme Court it will be too late for the 2012 election.
Hard to know where to begin to correct this blog, but here are two:
1. The NPV compact maintains state control over their electors, fully in keeping with the Constitution. The winner-take-all rule is NOT in the Constitution and was not the norm for decades — and is bad for most states and their people. It’s fully in keeping with the Constitution to have states fix a rule that hurts them.
2. No elector would be forced to vote against their will. States in the agreement would be elect the electors associated with the candidate who won the most votes in all 50 states. Doing so guarantees that candidate will win.
3. Vote fraud is far more problematic when a few thousand votes in one state can swing the entire election.
Peter, thanks for trying to correct my blog. You only missed on two or three points.
1. The only control the Constitution gives states over electors is to determine the “manner” in which they are appointed.
2. I did not say electors would be “forced” to vote against their will. Here’s an example of what I mean. Voters in thirty states choose electors pledged to candidate A. Voters in twenty states choose electors pledged to candidate B. The thirty states (A) have an electoral college vote of 275, say. The popular vote goes to candidate (B). The electors in the thirty states who have enough electors to win the election, in order to carry out their commitment to the NPV scheme would have to cast their vote for candidate (B) contrary to the wishes of the voters in their states, the Constitution and their pledge to their voters.
The Founding Fathers only said in the U.S. Constitution about presidential elections (only after debating among 60 ballots for choosing a method): “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . .” The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”
Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all rule) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.
In 1789, in the nation’s first election, the people had no vote for President in most states, Only men who owned a substantial amount of property could vote.
In 1789 only three states used the state-by-state winner-take-all rule to award electoral votes.
There is no valid argument that the winner-take-all rule is entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The current 48 state-by-state winner-take-all rule (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in a particular state) is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all rule.
As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all rule is used by 48 of the 50 states. Maine and Nebraska currently award electoral votes by congressional district — a reminder that an amendment to the U.S. Constitution is not required to change the way the President is elected.
The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.
I mostly agree with your historical references concerning the right to vote. Voter qualifications was left up to the states by the Constitution. That was changed by the 15th, 19th, 24th and 26th Amendments.
I also agree with your position concerning the winner-take-all policy if I understand it.
In your first paragraph, I agree with your quote from Article I. I also think you have accurately stated the opinion of the Supreme Court. (I will have to look it up)
However, I have to point out that both Article I and the Supreme Court speaks only of the “manner”, ie. processes and procedures, not the outcome. If the state legislatures are able to dictate for whom an elector votes, there is no reason for electors. Simply have the legislators decide who their state votes for and email the results to NARA. Why go through the elaborate formality of securing the popular vote ballots, and the security surrounding the transportation and counting of the individual elector’s ballots.
I should also point out that Article VI, makes the Constitution the Supreme Law of the Land, not the Supreme Court.
In 1789, in the nation’s first election, the people had no vote for President in most states, Only men who owned a substantial amount of property could vote. Later, state laws gave the people the right to vote for President in all 50 states.
The National Popular Vote bill would end the disproportionate attention and influence of the “mob” in a handful of closely divided battleground states, such as Florida, while the “mobs” of the vast majority of states are ignored. 98% of the 2008 campaign events involving a presidential or vice-presidential candidate occurred in just 15 closely divided “battleground” states. Over half (57%) of the events were in just four states (Ohio, Florida, Pennsylvania and Virginia). Similarly, 98% of ad spending took place in these 15 “battleground” states.
The current system does not provide some kind of check on the “mobs.” There have been 22,000 electoral votes cast since presidential elections became competitive (in 1796), and only 10 have been cast for someone other than the candidate nominated by the elector’s own political party. The electors are dedicated party activists of the winning party who meet briefly in mid-December to cast their totally predictable votes in accordance with their pre-announced pledges.
If a Democratic presidential candidate receives the most votes, the state’s dedicated Democratic party activists who have been chosen as its slate of electors become the Electoral College voting block. If a Republican presidential candidate receives the most votes, the state’s dedicated Republican party activists who have been chosen as its slate of electors become the Electoral College voting block. The winner of the presidential election is the candidate who collects 270 votes from Electoral College voters from among the winning party’s dedicated activists.
Sadly, I agree that the rise in power of the two political parties has corrupted the intent of the founding fathers. I know of no way to insure that political activists placed in a position of power, such as the power to elect the President of the United States, will not vote for the benefit of their party rather than the benefit of their country or in accordance with the will of the people they represent.
The third and fourth paragraphs of your comment makes this fact abundantly clear. Also, I will concede the accuracy of your statistics since they are irrelevant to my argument.
When presidential candidates campaign to win the electoral votes of closely divided battleground states, such as in Ohio and Florida, under the state-by-state winner-take-all rules, the big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami certainly did not receive all the attention or control the outcome in Ohio and Florida in 2000 and 2004.
Likewise, under a national popular vote, every vote everywhere will be equally important politically. There will be nothing special about a vote cast in a big city or big state. When every vote is equal, candidates of both parties will seek out voters in small, medium, and large towns throughout the states in order to win. A vote cast in a big city or state will be equal to a vote cast in a small state, town, or rural area.
The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities is only 19% of the population of the United States.
If the National Popular Vote bill were to become law, it would not change the need for candidates to build a winning coalition across demographics. Any candidate who yielded, for example, the 21% of Americans who live in rural areas in favor of a “big city” approach would not likely win the national popular vote. Candidates would still have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as voters in Ohio.
You and I are not necessarily in disagreement about statistics and historical facts. It seems we both have access to the same sources. Our disagreement comes from the interpretation and application of those facts.
My argument comes down to two or three points.
1) Our republican (small “r”) system of government has served us well for over 200 years. I see not reason to change it to a strictly democratic (small “d”) system.
(side note: I think the Seventeenth Amendment has been bad for our country and our liberty, and would like to see it repealed)
2) In the three instances where the “Electoral College” has been put to the test, it has worked as intended, and again I see no reason to change it.
3) The NPV proposal makes a mockery of the concept of “voting” and is more in keeping with countries run by dictators where getting 90% to 100% of the vote is routine, under threat of severe consequences. In a free republic the vote is sacred and should not be bought, sold or traded for political considerations.
More than 2,600,000 of our finest young men and women have given their blood since 1776 to give to us and to preserve the right to vote and I find it appalling that one or both of our political parties treat their sacrifices so cavalierly to gain political power.
I stand by my blog post and my answer to Peter’s comment 100%
As an example:
Massachusetts has exercised its power to change its system of awarding its electoral votes on 10 different occasions. In 1789, the Massachusetts legislature, in effect, chose the state’s presidential electors. In 1792, the voters were allowed to elect presidential electors in four multi-member regional districts. Then, the voters picked electors by congressional districts (with the legislature choosing the state’s remaining two electors). Shortly thereafter, the legislature took back the power to pick all the presidential electors (excluding the voters entirely). Later, the voters picked electors on a statewide basis using the winner-take-all rule. Then, the legislature again decided to pick the electors itself, followed by the voters using districts, followed by another return to legislative choice, followed again by the voters using districts, and, finally, the present-day statewide winner-take-all rule. None of these 10 changes required an amendment to the U.S. Constitution because the Founding Fathers and U.S. Constitution gave Massachusetts (and all the other states) exclusive and plenary power to award their electoral votes.
Massachusetts has the constitutional authority to change the manner in which electors are appointed every week if they so choose. They do not have the right to dictate who those electors vote for.
Correct, they cannot force electors to choose any specific candidate, but they simply will choose the slate of electors that favors the candidate who won the national popular vote. This is EXACTLY how it works now, with each party having a slate of electors within a state and the winner of that state getting their electors sent to Washington to cast their wholly meaningless and predetermined vote. This system would not change, it would simply be based on the national popular vote count instead of the statewide one.
I would also like to respond to the title of your article by suggesting you read this open letter from Saul Anuzis, wholeheartedly supporting National Popular Vote.
It should probably be mentioned that Saul Anuzis was chairman of the Michigan Republican Party from 2005-2009 and was also a candidate for national chairman of the Republican National Committee in 2009. He also supports National Popular Vote for two overall reasons: firstly, it protects all voters and an equal system for choosing our President, and secondly because he genuinely sees it as an asset to Republican and conservative candidates in the Presidential election and in a trickle down effect through American politics.
Alex, you are correct, Republicans are no less susceptible to a short-term, self-serving type of thinking than are Democrats. What the argument boils down to is, whether a democratic (small d) or republican (small r) form of government is more enduring and better serves the cause of liberty. The Founders strongly believed the republican form met that goal better. I agree.
A phrase in your first paragraph reminded me of another indication of the Founder’s regard for the sanctity of the Electoral College vote. Electors do not go to Washington to cast their votes. The Constitution requires them to meet and cast their votes (a) in their own state, and (B) on the same day, thereby making collusion and “horse trading” between the states difficult if not impossible.
This requirement also insured that electors in one state would not be swayed by the outcome of votes in other states. The Founders had no way of foreseeing the corrupting influence caused by the future rise of political party power, the party controlled primary process, or the instantaneous forms of communications available today.
Mr. Anuzis also inadvertently makes another point in his essay. “It’s a state’s rights issue”. (see my response to Peter’s comment.) If voter’s in one state elect a certain candidate’s electors in the general election, those electors should not ignore the will of the people they represent by voting differently in the electoral college.
I also agree the winner-take-all system makes a mockery of the constitutional process of transporting the detailed tallies of the votes, under seal, to the President of the Senate to be counted under the watchful eye of both houses of Congress.
As to my title for the blog, you are right. It should read “THE Democrat Scheme to Steal the 2012 Election”. This title is based on a close observation of the actions of the Party in recent years and the misleading nuances in the NPV’s arguments.
National Popular Vote has nothing to do with whether the country has a “republican” form of government or is a “democracy.
A “republican” form of government means that the voters do not make laws themselves but, instead, delegate the job to periodically elected officials (Congressmen, Senators, and the President). The United States has a “republican” form of government regardless of whether popular votes for presidential electors are tallied at the state-level (as has been the case in 48 states) or at district-level (as has been the case in Maine and Nebraska) or at 50-state-level (as under the National Popular Vote bill).
As far as states being cheated by the electors being based on the National Popular vote, the National Popular Vote bill concerns how votes are tallied, not how much power state governments possess relative to the national government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, along district lines (as has been the case in Maine and Nebraska), or national lines. It is wholly up to the state to choose how to select its slate of electors. National Popular Vote would represent the will of that state if there was enough support within that state to sign on to it. Currently, there is a roughly 70% approval of the NPV system, across all states.
I disagree with your characterization of “republicanism”. However, if Thomas Jefferson had difficulty in precisely defining it I will not attempt to do so.
The Supreme Court attempted to define it in 1891 in “Re Duncan, 139 U.S. 449. Their definition:
Under the NPV plan the elector’s votes could not, “be said to be those of the people themselves”, in those states where elector’s were required to vote contrary to the vote of the people they represent.
In any case, Madison’s notes on the Philadelphia Convention and the existence of the Electoral College System itself is irrefutable evidence that the founders rejected the idea electing the President by the national popular vote of the people.
Absolutely- but they rejected it because they had absolutely no faith in the people at the time, never mind the differences between then and today in technology for voting, spreading information, etc. White, propertied males were allowed to vote in revolutionary era America. The creation of the Electoral College was also the only way to convince some smaller states to join the compact at the time. The Electoral College system efficiently allowed states to count slaves in their population totals and yet give that voting power to the same white upper class that was creating the Constitution. That was simply the way the world was.
The way the world is today, every person having a vote actually means every person, regardless of race, gender, religion, etc. The division today is not between large states and small states, it is between swing and spectator states. Texas is massive, Rhode Island is tiny, and neither gets any attention because their Electoral College votes are never in question.
Finally, the electors are chosen to represent the people by any means the people and legislature of that state choose. If the people specifically choose to have their electoral will reflected as part of the larger national vote, that is fully constitutional and legitimate.
Slavery was indeed an issue in the debate concerning the number of representatives each state was to have. I am not sure of the extent it figured into the adoption of the Electoral College.
So far as the modernization of our society. That does not affect the requirements of the Constitution. Furthermore, there is little evidence that the “mass” of the American people are any better informed about government and current events today, than they were in 1787. In fact, it could be argued they are less so. The Revolutionary War got everyone’s attention. Remember, we are not talking about the makeup of the panel on “American Idol” or the rule making authority of the NFL.
If we need a constitutional amendment, so be it. There are procedures to follow, and attempting to bypass the Constitution by state law is not one of them.
Re your final sentence, “If the people specifically choose to have their electoral will reflected as part of the national vote, that is fully constitutional and legitimate.” This is not true, without Amending the Constitution. We do NOT have a “living constitution” so there is no point in attempting to kill it. It’s requirements are valid in perpetuity until amended under Article V.
Your argument in the second paragraph has mass appeal, since it appeals to the American sense of “fair play” and “equality” so successfully used by progressives for the past hundred years. However, it has no bearing on the current discussion, since we are talking about the rule of law and not the “feel good” desires of people answering telephone surveys.
Of course they are better informed. A large number of Americans couldn’t even read in that era where today the click of a button provides online access to a candidate’s position papers on major issues, political analysis from any number of sources, etc. Whether people effectively take advantage of the resources is a different problem, but the materials to create a fully informed electorate exist- and we trust it to elect every other political office in the country (Governor, Representative, Senator, etc.).
Secondly, there is absolutely no need for a Constitutional Amendment, just as there was no need for one any other of the multiple times states have changed their method of allotting EC votes. The Supreme Court ruling about the states’ right to choose their electors however they saw fit reads:
“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket nor that the majority of those who exercise the elective franchise can alone choose the electors. …
“In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States.”
This means that “the wording ‘as the Legislature … may direct’ in Article II of the U.S. Constitution is an unqualified grant of plenary and exclusive power to the states. This constitutional provision does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state’s electoral votes.”
If the state chooses to allot its Electoral College votes based on the national vote totals, that is simply the particular method it has the full legal and constitutional right to choose, according to the Constitution and the Supreme Court interpretation.
Alex, You confuse the availability of information with the consumption of information. The successes of NPV thus far does not speak well of our ability to draw right conclusions from the information available.
Re your SC quote: We have never questioned the right of the states to appoint electors in any manner they choose. The Constitution is clear on that. My concern is what the NPV plan requires the electors to do AFTER they are appointed.
My argument is that the Founders, and the Constitution they created, were adamant that the President should not be elected by a popular vote of the people without some sort of filtering process to prevent them from being misled by some charismatic charlatan in a period of high emotional fervor. (sound familiar)
If you disagree, please supply some unambiguous reference from the Constitution or one of its Framers to support your position.