The War on the Electoral College Has Only Just Begun How a Democrat-driven vote ‘compact,’ a key court ruling, and the Georgia Senate races could converge to decide its fate. By Andrew C. McCarthy
/https://www.nationalreview.com/2020/12/the-war-on-the-electoral-college-has-only-just-begun/
How a Democrat-driven vote ‘compact,’ a key court ruling, and the Georgia Senate races could converge to decide its fate.
T he people of the states of Pennsylvania, Michigan, Wisconsin, Georgia, and elsewhere have spoken. By majority vote, they have chosen Joe Biden over Donald Trump. Isn’t it outrageous to suggest that the vote of the people of those states should be cast for someone other than the candidate preferred by the millions of voters in these states?
Well, yes, it is. And like a number of commentators, I’ve said so time and again (see, e.g., here), even though this means Biden, the candidate I oppose, will be sworn in as the 46th president of these United States at high noon on January 20, 2021. That is how our system works. The candidates run their campaigns, we vigorously debate their merits, then we vote. The underlying assumption is that whichever side loses resolves to do better next time, but in the meantime — in the absence of some compelling demonstration of material fraud — we collectively honor the result.
You want to condemn President Trump for cavalierly undermining those assumptions, and the stability and tranquility they promote? You’ll get no argument from me. But let’s not pretend that Trump is the first to promote the radical, politicized notion that the candidate who wins a state’s election should not get that state’s electoral votes.
Progressives beat him to it, long ago.
As we discussed back in July, a growing group of states dominated by left-wing Democrats has for years been cobbling together the so-called National Popular Vote Interstate Compact (NPVIC). The compact’s member states agree that they will award their state’s electoral votes not to the candidate who won the state’s popular election but to whichever candidate won the popular vote nationwide. The point, in other words, is to do away not only with the state’s popular election, but also with the Electoral College and our Constitution’s 233-year-old election process.
Instead, we would have a single, national popular vote. This would radically change the way we’ve conducted presidential elections, inducing candidates to ignore much of the country and concentrate their campaigns in urban population centers — dramatically increasing the influence of progressives over the nomination of candidates and the campaign debate over policy. It would also be far easier to manipulate a single election by fraud than 50 state elections. We would thus lose the advantage of diffusion, which has been touted as our greatest defense against foreign interference (of the kind alleged by Democrats in 2016) and massive fraud conspiracies (of the kind alleged by some Trump supporters in 2020).
Most significantly for present purposes, the NPVIC would substitute the preferences of political operators for the solemn choice of the people they represent. In 2004, for example, it would have required casting California’s 55 electoral votes for George W. Bush, even though John Kerry won the state by 1.2 million.
In the media coverage of the 2020 election, the notion of political officials supplanting the state popular vote is discussed in terms of disenfranchisement. But naturally, progressives would not have you see it that way when they think the sleight-of-hand benefits them. Instead, they would have you believe state elections are themselves the disenfranchisement of “The People” writ large.
In the Left’s calculation, it is not 2004 anymore. They have an advantage, at least for the moment, in the popular vote, which Republicans have won just once in the 32 years 1988. Particularly in California, the GOP has not been competitive. Biden and Hillary Clinton topped Trump by, respectively, 5 million in 2020 and 4 million in 2016. By itself, the Golden State accounts for most of Biden’s popular vote win, as well as all of Clinton’s and then some.
Such advantages tend to be transitory. Even in the here and now, they can be overstated. Republican turnout in California is depressed by the state’s “jungle primary” system, which could change (though don’t hold your breath that it will happen any time soon). Meantime, nothing is static: California is hemorrhaging population and down-ticket Republicans did surprisingly well in 2020. Up until 2016, Democrats touted a “Blue Wall” through the Rust Belt that assured them Electoral College success; then when Mrs. Clinton unexpectedly lost, the Electoral College suddenly became an urgent problem . . . at least on those days when, to hear Clinton pal and prospective Biden OMB appointee Neera Tanden tell it, the problem was that Russia hacked the voting system and changed Hillary votes to Trump votes. (Sound familiar?)
The Democrats understandably enjoy their current popular-vote advantage, but it is far from overwhelming. If the country were in love with Democrats, then Republicans would not so often find that their best campaign pitch is to highlight the Democrats’ lurch to the left. Neither Bill Clinton (in winning twice) nor Hillary Clinton and Al Gore (in winning the popular vote but losing) ever won 50 percent of the popular vote. In fact, in the 40 years between 1968 and 2008, the only Democrat to hit 50 percent, barely, was Jimmy Carter in the post-Watergate election. In those decades, Democrats lost the popular vote regularly, and often decisively. In his historic 2008 candidacy, Obama won the popular vote comfortably with 53 percent; but he got just 51 percent in 2012, roughly the same percentage Biden appears to have won this year. These are hardly landslides.
They are enough, though, to convince Democrats to overhaul our venerable presidential-election system. They would have to do it in spite of the Constitution. Its clear terms create the Electoral College system in which the president is chosen by electors in each state, not by a popular election.
In the context of the indecorous Trump gambit of bidding Republican-majority legislatures, in states where Biden won the popular vote, to consider substituting Trump electors for Biden electors, we’ve had occasion to discuss state election law. The state legislatures could not, at this late point, just ignore the popular vote and appoint electors of their choice. They would have to amend or repeal over a century of statutory enactments that give the people of the state the right to choose electors by democratic elections. They would also have to change laws that direct the states’ election officials and Electoral College electors to effectuate the will of the state’s voters.
Blue states are endeavoring to force this outcome by the NPVIC. That compact, however, runs smack into the Constitution’s express prohibition against a state’s entering compacts with another state (or states) in the absence of Congress’s consent (see art. I, sec. 10, cl. 3). I myself do not believe the Constitution may be amended by congressional approval of a compact between two or more states — no more than the federal government may amend the Constitution by entering into a foreign treaty whose provisions would nullify the Constitution’s terms or the rights of the states. The Constitution prescribes an amendment procedure, and it would have to be followed if the Electoral College were to be eliminated.
All that said, though, this underscores the importance of the January 5 run-off elections in Georgia, which will decide control of the Senate. The Democratic Left has not been shy about its desire to repeal the Senate filibuster in order to ram its agenda through. Right now, with Republicans in control of the Senate, it is inconceivable that Congress would consent to the NPVIC. If Democrats controlled the Senate, however, all bets are off.
That is worth remembering, for two reasons. The first is that the NPVIC has already been adopted by 15 states plus the District of Columbia. These account for 196 electoral votes. The blue states in the compact are edging ever closer to 270, the magic number needed for election to the presidency. Once they have it, they plan to put the compact into effect.
The second reason brings us back to July. I had occasion then to write about the NPVIC because the Supreme Court had just decided Ciafalo v. Washington. States have the constitutional authority, the justices held, to compel “faithless electors” to cast their Electoral College votes for the candidate to whom they are pledged if that candidate wins the state’s presidential election.
As Justice Clarence Thomas observed in his concurring opinion, Ciafalo should have been a straightforward case. The Constitution is silent on a state’s power to direct its electors on how to vote. Therefore, under the Tenth Amendment — which reserves to the states and the people any powers the Constitution has not delegated to the federal government — the states retain this authority, end of story.
Except it wasn’t the end of the story. The majority opinion was written by one of the Court’s progressive justices, Elena Kagan. She claimed, to the contrary, that the Constitution had indeed empowered the states to direct how electors must vote. Nowhere, however, does the document say that. Rather, Justice Kagan extravagantly inferred such a power from the Constitution’s instruction to the states to “appoint” electors “in such Manner as the Legislature thereof may direct.”
As Justice Thomas countered, however, that provision is simply a directive combined with a modicum of discretion in carrying it out: The state legislatures must appoint electors, but how to appoint them is up to each legislature — e.g., they could choose electors by a straight legislative appointment, or by conducting a popular vote. The Framers were not empowering the legislatures to tell the electors how to vote.
Plainly, the point of creating the Electoral College was to have the president chosen by a body of patriotically minded citizens, voting in their own states. This way, Congress would not have too much power over the president (as it might if the election were left to Congress), nor would the process be vulnerable to corruption (the chance of that would be greater if the election were to take place in the same place at the same time).
Moreover, while it is unpopular to acknowledge this today, the Electoral College was designed to be a check on pure democracy. So is much of the Constitution. This is a prudent sentiment. Pure democracy historically devolves into mob rule, endangering minority rights and unpopular expression. But as a fortification of our system, it is anathema to the Change! Left. Regrettably, it also seems to embarrass too many on the right, who either don’t understand or don’t think they can explain why government by popular majority would imperil liberty.
While I don’t approve of faithless electors, I am not bowled over even by Justice Thomas’s reasoning — the Tenth Amendment theory may be right, but I also believe the Framers intended that the electors would vote according to their independent judgment. Otherwise it would have been pointless to have an Electoral College. In any event, it is one thing to say, as Ciafalo does, that the states have the power to direct electors how to vote when doing so shores up the state’s decision to endow its citizens with the right to choose the president. It would be quite a different thing to say state legislators have the power to direct electors to vote in a manner that would eradicate both the state’s popular election and the Constitution’s Electoral College system.
Yet I believe that is what Justice Kagan’s opinion could portend. The conservative justices give half the game away by holding that electors are beholden to the state legislatures. From here, the progressives will say: If, in the name of promoting democracy, the state legislatures may direct the electors to vote for the candidate who won the state’s popular election, then why not for the candidate who won the popular vote nationwide? After all, the state legislatures either have the power to command the electors or they don’t — and the Ciafalo ruling said they do.
The Court decided Ciafalo before progressive Justice Ruth Bader Ginsburg died and conservative Justice Amy Coney Barrett was appointed. Hopefully, if this issue comes back to the Court under the auspices of the NPVIC, there will be more sympathy for Justice Thomas’s view. In the interim, when the media-Democrat complex rebukes the Trump campaign for suggesting that state legislatures and electors should betray the voters of their states, keep in mind that this is exactly what the progressives’ compact aims to accomplish.
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