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An alternative to the Electoral College

Over the last few days, as anyone interested in the American presidential election can tell you – and it seems everyone is –, the 2016 election is one of the few in history with two different winners: one candidate appears to have won the popular vote and the other has won the Electoral College vote. As of this writing, according to the latest tally the popular vote leader is Hillary Clinton by over 337,000 votes. This fact is politically (and perhaps sociologically) important. But it is irrelevant under our constitutional system.

Under the Constitution, the President is the only federal office subject to a special electoral process. There are two steps: first, individual voters register their preferences in the voting booth. The second step, which usually receives far less notoriety, consists of electors from each state designated according to the winner of the statewide popular vote. (Maine and Nebraska are exceptions, as their electoral votes are assigned by the popular vote winner in each congressional district.)

Also in the last few days, there has been reinvigorated discussion of the possibilities of reforming how the Electoral College works, and even whether it should be abolished. This recrudescence of reform of the Electoral College has assumed that there are two paths to reform: a constitutional amendment, or a previously little-known proposal called the National Popular Vote Interstate Compact (NPV). A constitutional amendment would be very difficult to achieve. Of the thousands of constitutional amendments proposed since the beginning of the Republic, only 27 have been ratified. Even if the proponents of an amendment strike while the iron is hot, there is no likelihood a Republican-controlled Congress would vote for altering the Electoral College. That political reality leaves the National Popular Vote proposal as the only apparent reform option.

Under the NPV compact states would agree to award their electoral votes to the winner of the national popular vote, rather than awarding electoral votes to the popular vote winner in their state.  Under such a system, Republican Wyoming would award its electoral votes to a Democratic candidate who won the popular vote on a national scale. So, too, would reliably Democratic New York award its electoral votes to a Republican national popular vote winner. The NPV compact goes into effect when a number of states equal to the 270 electoral votes needed to win the presidency have enacted it. To date, ten states and the District of Columbia have enacted the plan, totaling 165 electoral votes. That means NPV proponents are just over halfway home to putting the compact into effect. Proponents claim the NPV will reflect the democratic preferences of the voters much better than the allegedly antiquated Electoral College.

NPV compact proponents contend the Electoral College can be altered through the constitutional process for interstate agreements, without resort to a constitutional amendment. Other commentators have noted the political problems – How to handle recounts? More plurality winners? Regional candidates? – that might ensue from a popular vote system. I’ll restrict my comments to the legality of the NPV.  In short, the NPV proposal is manifestly unconstitutional. Here’s why.

 Proponents claim the NPV will reflect the democratic preferences of the voters much better than the allegedly antiquated Electoral College.

The Constitution’s Compact Claus provides: “No state shall, without the Consent of Congress … enter into any Agreement or Compact with another state.” Some prior interstate compacts have been challenged in the federal courts, and the Supreme Court has held that not all interstate agreements need congressional approval. For example, a compact resolving a state boundary or creating a multistate tax commission does not need Congress’s approval. NPV supporters claim congressional approval is unnecessary.

However, the Court has only allowed compacts that do not penalize non-joining states and do not threaten federal interests or institutions. The NPV compact would fail on both counts. First, the NPV would disadvantage states that refuse to join the compact. For example, low-population states would likely refuse to join because they would be disadvantaged relative to high-population states.  Second, and most importantly in terms of constitutional legitimacy, the express purpose of the NPV compact is to change a federal constitutional institution, the Electoral College. That is, the NPV is trying to reform a constitutional institution – the Electoral College – without going through the amendment process. This fact requires the NPV to be submitted to Congress for approval, per the Compact Clause.

But that’s not the only roadblock for the NPV.

Even if Congress wanted to approve the NPV, it would be unconstitutional to do so. The Supreme Court has held that Congress’s approval of an interstate compact converts the agreement into federal law. Although the Constitution leaves the appointment of electors up to the states – a point NPV proponents repeatedly make – the submission of the NPV compact to Congress puts Congress in the position of approving a measure that Congress would be prohibited from enacting by itself. The Constitution does not allow Congress to create a popular vote system on its own initiative. Therefore, how could Congress approve a state-based plan that does the same?  In short, the NPV compact is unconstitutional because the Constitution does not allow a minority of states, in combination with Congress, to amend the Constitution.

Headline image credit: American flag by tpsdave. Public domain via Pixabay.

Recent Comments

  1. Greg Gauthier

    There are many good reasons for the existence of the electoral college. We would be naive imbeciles, plunging country into mob rule chaos, if we were to abandon it.

    1. It’s about insuring the FEDERALISM of the American system. The primary relationship that a citizen of the US has, is to his STATE, not to the federal government. Properly understood, I am an ILLINOISAN, not an American. The only reason the federal government has any role to play in setting internal policies of any kind (education, energy, health care, etc), is as a consequence of the corrupting influence of direct federal income taxes on citizens of the various states. Those taxes once collected, gives the federal government the power to dictate STATE laws, in exchange for federal largesse. Without that mechanism, the Fed would be constitutionally powerless to demand anything. The electoral college, now, is pretty much the ONLY thing maintaining SOME sort of tension between the states and the fed.

    2. It’s about insuring that every citizen of every state, has an *equal voice* in that state’s preference for president. If we abandoned the electoral system, then popular vote would necessarily result in the entire country being dominated by the citizens of New York, Chicago, LA, Phoenix and Boston. Go look at any county-level electoral map of the country after the 2012 election (or even this one). As many votes are cast in these cities combined, as in the ENTIRE REST OF THE COUNTRY. The electoral college makes sure that the 250 voters in bumpkinville, PA have just as much say, as the 250,000 (hypothetical) voters in Philadelphia, PA.

    3. It prevents every single election from descending into nothing but a protracted legal battle. You saw what happened during this campaign over the question of voter fraud. And those of us old enough, remember the nightmare marathon election that was 2000. The electoral college insures (for the most part) that every election is decisive. Looking at this year’s numbers, Hillary beat Trump by just a shave over 300,000 votes. Do you think the Trump campaign or even the Hillary campaign (after all the high-strung campaign rhetoric about Russian hackers and democrat ballot fixers) would have said “meh, looks good to me”). I don’t think so. We’d be in re-count hell right now, with lawsuits flying everywhere, if it weren’t for the electoral college.

    4. Last, but not least, all of these things combine to make sure that the “peaceful transfer of power”, is actually peaceful. If you have a system whereby New York and LA are constantly dictating to the rest of the country, how long do you suppose it will be before there’s an armed insurrection? If you have a system whereby 3 out of 4 elections are legally contested, how long do you suppose it will be, before there’s a political coup? If you have a system whereby the authority of the states is meaningless, how long do you suppose it will be, before America is nothing more than an imperial dictatorship?

  2. otto

    Because each state has independent power to award its electoral votes in the manner it sees fit, it is difficult to see what “adverse effect” might be claimed by one state from the decision of another state to award its electoral votes in a particular way. It is especially unclear what adverse “political” effect might be claimed, given that the National Popular Vote compact would treat votes cast in all 50 states and the District of Columbia equally. A vote cast in a compacting state is, in every way, equal to a vote cast in a non-compacting state. The National Popular Vote compact does not confer any advantage on states belonging to the compact as compared to non-compacting states. A vote cast in a compacting state would be, in every way, equal to a vote cast in a non-compacting state. The National Popular Vote compact certainly would not reduce the voice of voters in non-compacting states relative to the voice of voters in member states.

  3. dennis smith

    If we do away with the electoral college there will be no need to vote anymore. Also, since there would be no need for the popular vote to award the EC by state anymore then I should be allowed to vote in whatever state I want for the presidency. Local elections would need state residency but the presidential vote would be by U.S. citizenship, therefore no person should be denied the chance to cast their vote anyplace in the U.S. We can’t just have the large populace areas picking the president every four years, why vote? Maybe a better way would be to have 1 win in each state (no electorates). The majority of the states (a set number determined by census each election) and the majority of the popular vote wins. Also, candidates should have campaign rules outlining how states will be campaigned in and how much money can be used to finance a campaign. Lastly, why can’t states form pacts with other states to have their collective votes counted (causing candidates to campaign in those states and not just pass them up for the more strategic state.)

  4. vp

    Even if NPV were passed, it could still be gamed or sabotaged by non-participating states. Nothing forces states to set the minimum age for presidential voting at 18. Non-participating states could lower the minimum age for the presidential vote to 15, 12, or even lower, thereby granting themselves more weight in the overall “popular vote”.

  5. otto

    With the current system (not mentioned in the U.S. Constitution, but later enacted by 48 states), a small number of people in a closely divided “battleground” state can potentially affect enough popular votes to swing all of that state’s electoral votes.

    537 votes, all in one state determined the 2000 election, when there was a lead of 537,179 (1,000 times more) popular votes nationwide.

  6. otto

    The National Popular Vote bill would guarantee the majority of Electoral College votes and the presidency to the candidate who receives the most popular votes in the country. It does not abolish the Electoral College.

    The bill would replace state winner-take-all laws that award all of a state’s electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but later enacted by 48 states), in the enacting states, to a system guaranteeing the majority of Electoral College votes for, and the Presidency to, the candidate getting the most popular votes in the entire United States.

    The bill retains the constitutionally mandated Electoral College and state control of elections, and uses the built-in method that the Constitution provides for states to make changes. It ensures that every voter is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

    Every voter, everywhere, for every candidate, would be politically relevant and equal in every presidential election. Every vote would matter in the state counts and national count.

    The bill would take effect when enacted by states possessing a majority of the electoral votes—270 of 538.
    All of the presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes in all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.

  7. Evelyn

    For the record, the latest numbers have Clinton’s popular vote margin a little over 1.7 million, though the count hasn’t been finished yet: http://cookpolitical.com/story/10174

  8. Dylan Goerner

    The Electoral College has been a highly contested factor in The United States Electoral System, most notably since the turn of the century. This is because two of the last four elections have been decided by the Electoral College. To put this in historical context, fifty percent of all elections that have been decided by the Electoral College have been in the last 16 years. This is because only two other elections besides the 2000 and 2016 Elections were chosen because of Electoral Votes. (Presidential Election of 1867 and 1888 were the other two.) While we are correct in being confused by it, there is not a much we can do in terms of abolishing it without dismantling the whole framework of our Federalist Government. The Electoral College was founded in 1787 at the Constitutional Convention, which is where the founders decided how our government would function. We chose to establish an Electoral College, to keep Monarchal powers away from the presidency. The people would decide who gets elected into the government, and that government would decide in the end who we would elect. This, according to them would keep monarchal powers that might come from a popular vote away from the President.
    Today, the worries the founders were dealing with are not necessarily relevant to our democracy today and many people are frustrated with a system that feels outdated. With hundreds of years behind us we no longer need to worry about a monarchy taking over, with our government being a strong platform to prevent a take over of power from a presidential elect. While we can’t abolish it, like many claim we should, we as voters should push for amending and adjusting the way we elect Presidents. Because whomever we vote into office in the next election, he/she will lead a much different government and work with a very different world than the one the founders planning for.

  9. Tom R

    The STATES elect the President, not the “Country” and it makes sense and a VERY wise system that was put into place by the founding fathers. Note that 30 states chose Trump and 20 states chose Clinton….so, how do you explain to those 30 states that their choice “lost”? Those 30 states would want to secede.

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