State lawmakers, apparently in a bid to make presidential elections more “fair,” are trying to undermine the Electoral College in favor of a more pure democracy.
“The Electoral College is a vestige, it’s a carryover from an earlier vision of how our federal government was going to work that put a lot of premium on states.” That is what former “constitutional law professor” and now-former U.S. President Barack Obama told reporters at a press conference on December 16, 2016. The president’s remarks echoed those shared by a great many Americans outraged at how, despite “officially” losing the national popular vote to Hillary Clinton, Donald Trump won the presidential election because of the Electoral College.
In a day and age when presidents from both political parties, and other elected officials across the political spectrum, perpetually refer to the United States as a democracy, with millions more being taught the same in public schools and colleges across the country, it comes as no surprise that many millions of voters feel disenfranchised. These sentiments were also echoed by former Senate Minority Leader Harry Reid, who in an interview with BuzzFeed on December 13, 2016, said, “In this election Hillary Clinton wound up getting almost 3 million more votes than Trump. It’s time the system goes. It is very undemocratic.”
Both Reid’s and Obama’s post-federalist anti-republican comments further stoked the flames of those calling for the direct election of the president and vice president by way of a nationwide initiative known as the National Popular Vote Interstate Compact (NPVIC).
Rather than outright abolishing the Electoral College, the NPVIC would work through it to elect whoever wins the national popular vote. Once enough states have joined the NPVIC for their combined electoral votes to equal 270 (the number required to elect the president), the compact will come into effect. The states in the compact would then collectively delegate all of their combined electoral votes to whoever wins the national popular vote, regardless of whether the winning candidate actually won all of the states within the compact.
Under this proposed scheme, if the state of New York — having already joined the compact — voted overwhelmingly for the Democratic presidential candidate but the Republican presidential candidate won the national popular vote, then all of New York’s electoral votes (currently 29) would be given to the Republican candidate even though it was the Democrat who won the state popular vote in New York. The New York Post’s Seth Lipsky writes, “If the measure had been in effect in 2004, it would’ve delivered the state’s electoral votes to George W. Bush, although New Yorkers voted for John Kerry by a margin of 18 percentage points.”
Likewise the opposite scenario would be true; if a state in the pact voted for the Republican candidate but the Democratic nominee won the national popular vote, then all of that state’s electoral votes would go to the Democratic candidate. Thus all the electoral votes of the states within the compact would be bound to whoever wins the national popular vote. Proponents argue this would be consistent with the Constitution’s provision, in Article II, Section 1, Clause 2, allowing state legislatures to appoint electors by whichever manner they want. In this case, the states would agree to select the electors based on the results of the national popular vote rather than the outcome of their own state’s popular vote. Proponents further argue this is necessary in order to ensure a democratic outcome.
Under this scheme the Electoral College would exist merely as a shell; no longer would it represent the interests of the states, but rather a plurality of the nationwide will of the people. Such a fundamental change would further undermine the role of the states, making them further subservient to the national interest. And it would also be the most radical departure from a republic toward a democracy since the ratification of the 17th Amendment, which allowed for the direct election of U.S. senators rather than having them chosen by the legislatures of their states, as originally prescribed in Article I, Section 3, Clauses 1 and 2 of the Constitution.
Originally, the U.S. Senate represented the interest of the states, serving as a necessary check on the federal government. Meanwhile, the House of Representatives represented the will or interest of the people. The passage of the 17th Amendment removed the voice of the states in federal matters and terminated their role as a check on the federal government, which in large part accounts for the vast increase in the size of the federal government and the scope of its control over the states, which in turn are increasingly treated as regional subsidiaries. Similarly, the NPVIC would remove the role of the states in electing the president and vice president. No longer would the country truly be the United States of America, but rather a united “people’s democracy,” where in the name of such democracy the states become superfluous.
Initially prompted by the loss of former Vice President Al Gore in the 2000 presidential election despite winning the national popular vote, the NPVIC has garnered much support among state legislatures across the country.
Since the legislature of Maryland became the first to successfully pass the NPVIC in 2007, the legislatures of nine additional states (New Jersey, Illinois, Hawaii, Washington, Massachusetts, Vermont, California, Rhode Island, and New York) as well as the Council of the District of Columbia have passed it, joining the compact. All together these 11 members account for 165 electoral votes, which is 61.11 percent of the required 270 electoral votes. The compact only needs another 105 electoral votes before it would come into effect, fundamentally transforming the way the president and vice president are elected.
In the state of New York, which leans strongly liberal Democrat owing to the overwhelmingly Democrat-registered voting population of New York City, the New York State Senate, which typically leans Republican due to the predominately Republican voting population outside of the New York City and Westchester County area, overwhelmingly passed the NPVIC (S.5478) by a 57-4 vote in 2004. New York Republicans supported the bill 27-2, and of Republicans endorsed by the Conservative Party of New York, they supported it a by 26-2 margin. Meanwhile, not surprisingly, New York Democrats in the state Senate supported the bill 30-2.
“Potential presidential candidates concentrate more than two-thirds of their advertising budgets and two-thirds of their campaign stops in just five states. Almost a hundred percent of their message is seen in approximately 16 battleground states,” said state Senator Joseph A. Griffo (R-47) from the floor of the New York Senate. Representing all of Lewis County and most of Oneida and St. Lawrence counties in upstate New York, Senator Griffo led the passage of the NPVIC as a cosponsor of the bill in the Senate. Arguing in favor of the measure, Griffo continued his remarks on the Senate floor, arguing:
New York has 19.5 million people, but we’re routinely ignored by campaigns. I want to empower people. I want to make New York State relevant in a national campaign again. I want democracy that creates excitement in people not apathy. Joining the National Popular Vote compact creates that opportunity. [Emphasis added].
Although Senator Griffo is correct that if the NPVIC passes presidential candidates will no longer concentrate their efforts on “swing states,” they still will not likely appeal to all voters equally. Instead, they will concentrate their efforts in high-population areas, thus disenfranchising rural voters.
In the name of “democracy,” Senator Griffo echoes the same cry as those on the Left seeking to undermine the Constitution. He further reveals that this is not a partisan or progressive issue alone, but a bipartisan hazard much like the efforts of those advocating for an Article V constitutional convention. Incidentally, in 2015 Senator Griffo also cosponsored concurrent resolution J3572, a Convention of States (COS)-backed application to Congress for the purpose of calling an Article V convention.
After the NPVIC bill passed in both the New York Senate and Assembly, Governor Andrew Cuomo signed it on March 25, 2014, making the Empire State the most recent state to join the NPVIC. On November 7, 2016, Governor Cuomo signed further legislation making New York’s entry in the NPVIC permanent.
Despite passing in predominately blue, or liberal-stronghold, states, the NPVIC has also made inroads in red, or typically conservative, states. The NPVIC passed by a bipartisan 40-16 vote in the Arizona House and a 28-18 vote in the Oklahoma Senate. In both instances, Republicans in the Arizona House and Oklahoma Senate joined their liberal Democrat colleagues across the aisle to pass the measure. However, Republican support for the NPVIC is not just limited to state legislators.
Serving as a consultant for National Popular Vote Inc. (NPV Inc.), a 501(c)(4) non-profit dedicated to the passage of the NPVIC, is Saul Anuzis, a former chairman of the Michigan Republican Party and a member of the Republican National Committee. In addition to Anuzis, eight former national chairs of the purportedly conservative American Legislative Exchange Council (ALEC) signed a letter endorsing NPV Inc. and the NPVIC. The eight signers include:
• Frank Messersmith, Florida — ALEC 1989-90 National Chair
• Harold Brubaker, North Carolina — ALEC 1994 National Chair
• Bonnie Sue Cooper, Missouri — ALEC 1995 ALEC National Chair
• Raymond N. Haynes, California — ALEC 2000 National Chair
• Steve McDaniel, Tennessee — ALEC 2001 National Chair
• Billy Hewes, Mississippi — ALEC 2004 National Chair
• Earl Ehrhart, Georgia — ALEC 2005 National Chair
• Noble Ellington, Louisiana — ALEC 2011 National Chair
It is also worth mentioning that as an organization, ALEC is one of the leading advocates of an Article V constitutional convention in order to propose a balanced budget amendment to the Constitution, and is also supportive of multilateral trade pacts such as NAFTA and the Trans-Pacific Partnership. Like the NPVIC, both of these ALEC-backed schemes — a Con-Con and sovereignty-eroding multilateral trade pacts — have the realistic potential of drastically altering the Constitution and/or fundamentally changing the country.
In a letter to Dr. John R. Koza, chairman of NPV Inc., dated January 14, 2014, neoconservative icon and former House Speaker Newt Gingrich also conveyed his endorsement for the NPVIC. “This important project has the potential to transform the way we elect our presidents and to make sure all Americans have a voice in their future,” Gingrich wrote. “Unfortunately, the current system for electing presidents does not reflect this tremendous diversity.” Gingrich continued, “America would be better served with a presidential election process that treated citizens across the country equally. The National Popular Vote bill accomplishes this in a manner consistent with the Constitution and with our fundamental democratic principles.”
The purpose of NPVIC is clear: to make the United States more “democratic” or into a democracy. However, if former House Speaker Gingrich, New York State Senator Griffo, and other NPVIC advocates would reread the Constitution, they may be surprised not to find the word “democracy.” Instead, Article IV, Section 4 of the Constitution mandates that “the United States shall guarantee to every State in this Union a Republican Form of Government.” This was reaffirmed by Benjamin Franklin, who when leaving the State House in Philadelphia, where the Constitutional Convention had convened, was asked by a woman on the street, “Well, Dr. Franklin, what have you done for us?” And Franklin soberly responded, “My dear lady, we have given to you a republic — if you can keep it.”
The Founding Fathers’ preference for a republican government — rule by law — rather than a democracy — rule by majority — was evident in their writings, most notably the Federalist Papers. In The Federalist, No. 10, James Madison, regarded as the “Father of the Constitution,” wrote that a republic is able to “refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.” However, as for “democracies,” Madison continued, they “have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.”
So former Senator Harry Reid was right when he said that the Electoral College is “undemocratic,” but for the wrong reason. Democracy is precisely what the Founding Fathers warned against and did not give us when they drafted the Constitution and instead gave us a republic. However, despite being undemocratic or anti-democratic, the Electoral College is by no means anti-constitutional, as some have charged.
Article II, Section 1 of the Constitution makes the following provision for choosing the president: “Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” The remaining requirements for electing the president in Article II were later altered by the ratification of the 12th Amendment in 1804. The relevant portion of that amendment reads: “The Electors shall meet in their respective states and vote by ballot for President and Vice-President.... The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed.”
This method remains the process by which the nation’s president and vice-president are elected — through the states via the Electoral College. The national popular vote outcome is irrelevant to the outcome of the election. The only popular vote that matters is that within each individual state to determine who will win the electoral votes for that state. On the other hand, if whoever received a majority/plurality of the national popular vote (i.e., democracy) was the winner, then the fate of the entire election could rest on just one or possibly two heavily populated states such as California, with more than 10 percent of the U.S. population, or New York, with six percent.
Of Hillary Clinton’s reported 65,844,954 votes in the 2016 presidential election, 8,753,788 came from California. If California is subtracted from the equation, Donald Trump wins the national popular vote in the remaining 49 states by 1,404,903 votes. And if New York is also subtracted, Trump’s margin increases to 3,137,876. So the notion that the NPVIC would make “every vote count” and “all states relevant” rather than just a handful, as its advocates affirm, is disproven when looking at the aforementioned raw number results.
In other words, under the NPVIC scheme, the votes of 48 states would often be rendered irrelevant by the heavily populated states of California and New York, much the same way Democratic-voting New York City renders irrelevant the mostly conservative and moderate-leaning Republican votes of upstate New York in statewide races.
French philosopher Maximilien Robespierre once said, “The secret of freedom lies in educating people, whereas the secret of tyranny is in keeping them ignorant.” Rather than educating and helping the electorate understand the wisdom and original intent behind the Electoral College, the nation’s leaders and both political parties are taking advantage of voter ignorance, thus reinvigorating the push for the NPVIC in the name of democracy, while further undermining our constitutional Republic.
Photo: AP Images
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