Just as every Christmas brings the same tired argument over nativity scenes, Christmas trees and Santa Claus, every election cycle brings forth a fresh attempt to ignore the Constitutional establishment of the Electoral College, and allow the city centers to run roughshod over rural Americans. The 2012 election is no different, but it does bring a fresh approach to the age old problem of a “popular vote” Presidential election… by having the state legislators pass a law, obligating their EC votes to the national popular vote winners.
Under this scheme, state legislatures would pass legislation that would bind them to award their electoral votes to the winner of the national popular vote—even if the candidate that got the most votes nationally did not carry that individual state. In short, this would be a de facto popular vote for President—and done without amending the Constitution.
So far, seven states and the District of Columbia (with a combined 77 electoral votes) have enacted laws that do precisely this. Should similar laws be enacted in states with an additional 193 electoral votes, de facto popular election of the President will be achieved.
The California legislature, firmly in Democratic hands, was poised to pass similar legislation this week, but with opponents raising fierce objections, the vote was delayed. In Delaware, newly elected state GOP Chairman John Sigler told us, “Liberal Democrats in the state legislature have offered HB 55, and all the Republicans are against it. Republicans here are strongly opposed because it would repeal the Electoral College by implication. And in basically writing off many states, rural areas, and people, it would lead to rule by tyranny.”
As of the end of April 2011, Vermont – Bernie Sanders territory – became the eighth voting arena to enact such legislation. The others are New Jersey, Maryland, Massachussetts, Illinois, Hawaii, Washington State and Washington DC.
This is a completely different concept than the more common winner-takes-all method used by 48 states. In this case, a state’s vote is cast per their electors, but can be changed by national popular vote after the fact. Who in the world could think that a popularity contest should be a state’s deciding factor? And what state legislator thinks this is appropriate representation for his/her constituents?
This back door movement traces it’s roots back to the Al Gore disgruntled in 2001. The Wikipedia history of the “National Popular Vote Interstate Compact” cites the 2006 created non-profit to advocate for this “compact” hit the ground running, and had it introduced into 42 state legislative sessions by 2007. To date, only 8 of them have been enacted into law, translating to 77 guaranteed “popular vote” electoral votes for a US President.
All of those states with this passage are strongly leaning liberal/progressives states by tradition. What becomes more dangerous is if swing states manage to join this “compact” during a favorable political climate with their legislative make up.
Various lawsuits have been mounted… pro and con… on the concept of EC vs it’s reflection of a popular vote. In 2008, Washington DC Green Party member, Asa Gordon, mounted a legal challenge, which met the same fate as many legal arguments for more lofty causes… dismissed for lack of standing. Gordon’s lawsuit, targeting then Veep, Dick Cheney, was in fear of Cheney’s power, presiding over the Senate, and how his power would affect certification of the 2008 election results.
Gordon’s lawsuit is the favored legal template for progressives, seeking to reform the EC into a popular vote movement. Apparently, when the cause is near and dear to a progressive’s heart, they see a “lack of standing” – or a non ruling on the merits – as a bonus. Other cases with dismissals for the same standing reason, and with less popular causes, have not enjoyed the dismissal’s elevation in stature.
But the ruling on Gordon v. Cheney, now Gordon v. Biden, provides a blueprint for future progressive civil actions to reform the Electoral College to reflect the popular vote in presidential elections.
“I am very pleased with the ruling, but unsatisfied to the extent that I plan to appeal what I deem to be the court’s error to deny me personal standing,” said Asa Gordon. “The civil action was not only motivated by my personal standing as an injured voter, but the main objective was to determine the legal viability of the 14th Amendment’s Mal-Apportionment Penalty clause pleaded before the court that would democratize the Electoral College. The court granted the dismissal order predicated on a memorandum opinion that did not reject the constitutional arguments I pleaded before the court.”
The District Court, citing case law precedents, ruled that “a pro se plaintiff… cannot adequately represent the interests of other class members.” The court granted the dismissal motion, stating: “Because Gordon’s alleged injury is not ‘fairly traceable’ to the Vice President’s actions, which in fact are purely ministerial, but rather is attributable to the actions of third-party states and state officials, he fails to satisfy the causation element of standing. Therefore, he is unable to prosecute this action.”
What a bonus…. if they can talk the majority of high EC vote states into passing similar “national popular vote changes the state EC votes” legislation, there is no need to “reform” the Constitutional system set down by our Founding Fathers. They’ve found the back door…
As long as there are active progressives in our nation, bent on changing the Founders “Republic” to their desired “Democracy”, the push for voter and state inequity will continue. A quest that I’ve always found ironic. A liberal/progressive community is so all fired for “democracy” in our republic, but don’t recognize the overt lack of “democracy” when the few states with high population control political power over all 50 states. i.e. just how “democratic” is it for 5-8 states to dictate to 50?
But the same concept of the Electoral College, designed to prohibit that imbalance of voter power, also extends to the Senate. If we abolish the EC, why wouldn’t we then abolish the Senate where all states… regardless of population… have equal representation, and act as a balance to the House who’s membership is dictated by population? For that matter, using the same theory these state bills do, why doesn’t the Senate now have to automatically pass anything the House does, since they are more reflective of the nation’s population in membership?
This entire business of changing a state’s EC votes based on national popular vote makes me queasy… The fact that no one in any of these eight affected states has mounted a high profile challenge in the courts makes me even more queasy.
In fact, while some are quick to pronounce such a roundabout method to usurp what was clearly not the intent of the Founders – aka a President elected by national popular vote – as easily Constitutional, that is not necessarily the case. This would have to be scrutinized by a court, and determined whether it was the type of interstate pact that required Congressional approval.
Not all compacts require congressional consent under the Compact Clause. The Supreme Court has allowed interstate compacts to stand without congressional consent if they are non-political and fall outside the scope of the Compact Clause (Seattle Master Builders Ass’n v. Pacific Northwest Elec. Power and Conservation Planning Council, 786 F. 2d 1359 (9th Cir. 1986)).
To date, every case arising under the Compact Clause has concerned boundary, commercial, or regulatory compacts (Robert W. Bennett, State Coordination in Popular Election of the President Without a Constitutional Amendment, 5 Green Bag 2d 141, 141 n. 2 (2002)). Because no compacts challenged for want of congressional consent have ever been found to touch upon “political” matters, by treading either on federal interests or non-compacting states’ interests, the Supreme Court has never invalidated a compact under the Compact Clause (David E. Engdahl, Characterization of Interstate Arrangements: When Is a Compact Not a Compact?, 64 Mich. L. Rev. 63, 81 (1965)). Thus, it is unclear how a court would decide this issue.
Political Consent Theory. The Supreme Court would likely consider the compact under the “Political Consent” Compact Clause theory. This reasoning evaluates whether the compact contains a political subject affecting federal interests or the interests of non-compacting sister states, in which case congressional consent is required (U. S. Steel Corp. v. Multistate Tax Comm’n, 434 U. S. 452, 477 (1978)).
Proponents of the Interstate Compact argue that the compact does not actually interfere with non-compacting states and therefore may be formed without congressional approval. Opponents argue that the Interstate Compact impairs the effectiveness of non-compacting states’ electoral votes, and thus requires congressional consent (Derek T. Muller, The Compact Clause and the National Popular Vote Interstate Compact, 6 Election L. J. 372 (2007)).
An excerpt from a working paper by Derek T. Miller at Penn State U is of the opinion this quasi-interstate compact would fail the Constitutional sniff test.
In Part III, the National Popular Vote Interstate Compact is examined and found constitutionally deficient. The Compact is actually a compact under the Compact Clause of the Constitution, because the Court has broadly construed what makes a compact. In particular, because the Compact is not effective until a critical mass of States have enacted it, and because States are constrained from withdrawing from the Compact too close to a presidential election, the Compact falls under constitutional scrutiny. Additionally, the Compact addresses a political matter that affects the interests of non-compacting sister States, and the compacting States enhance their political power at the expense of other States. The Article examines the various defenses of the Compact but finds that none of them overcome the political interests of sister States. Therefore, barring congressional consent, the Interstate Compact would fail.
Considering that the eight states that have eagerly enacted such a Constitutional suicide pact for a Presidential election are serious left leaning states, such a challenge in the courts is unlikely to happen. But with Louisiana, California and Colorado already visiting such a concept, any one of those states would effectively tip any election into the Democrat laps.
But wait… this gets better. The bizarre attempts to hand more-than-equal voting power to a urban Americans – or as former Delaware Gov. Pete du Pont called it, the “urban power grab” – brings even more “creative” analogies used by pundits to justify this movement. And WaPo’s Ezra Klein should be awarded a Most anti-Constitutionalist Pundit of the Day award for his “out of the box” analogy, suggesting that the EC is akin to giving more voting power to the young because they will be more affected by the election outcome.
First he offers his “out of the box” idea for debate:
America should implement weighted voting to make voting more objective and fair, and give the young more power, because the consequences of political decisions will affect them the longest. Weighted voting would restore power to twenty and thirty year olds, where it resided before the advent of medical science. With the aid of computers, it would be easy to give everyone a Voting Score, just like we all have a credit score.
When he’s rightfully excoriated for such an absurd suggestion by emails and comments, he does an update, explaining his “idea” was to make a point…. that some states enjoy more voting power even tho they have smaller populations.
Some people seem to think I’m advocating reweighting votes by age. I’m not. I’m pointing out that weighting votes by state, which is what we currently do, doesn’t make any more sense. It was an important political compromise that helped coax concerned states into the union, but a lot of time has passed since then, and now it’s an anachronism that unwisely gives a resident of Montana a more powerful vote than a resident of Michigan. I’m for unweighting votes entirely, and anyone who feels themselves getting angry at the idea of tilting democracy toward the young or the college-educated other group should ask themselves whether they aren’t, also.
Below is the map of the states, and their allocated EC votes in the 2008 election.
I’m not sure just how math challenged Mr. Klein is, but I don’t see that 3 EC Montana votes is “a more powerful” voice than Michigan’s 17 EC votes.
The EC is a complex critter that has evolved over time. Congressional Research Service’s Thomas H. Neale
wrote an article in 1999, briefly touching on the Constitional origins and it’s development thru the decades. The closest it ever came to effective abolishment was the failed The Bayh-Celler Amendment, which a disgruntled Congress attempted to pass after the 1968 election of Richard Nixon, when 3rd party candidate, George Wallace, siphoned off over 13% of the vote. Opposition was not divided along party lines, but size of states lines. Rightfully so. Anything that is decided by the whims of the nation’s population ushers smaller state populations to the back of the bus.
The single most important concept is that the Founding Fathers put the system in place specifically to preserve states as a Republic. To protect them from discrimination because of size of populations. And most important, to make sure the Presidential election did not become a national popular vote. They gave the power to the states to determine how their electors were chosen. But no where does it indicate Constitutional intent to negate the state elections in favor of a psuedo national election – all based on the results of a political beauty contest. Yet this is exactly what these state bills accomplish.