By DR. LARRY MOSES
No one asked me but… Democrats in Nevada are pushing to join an interstate compact to allow the popular vote to determine the winner of the U.S. Presidential election. This move predicated on the fact that the last two Republican Presidents lost the popular vote but took office by winning the vote of the Electoral College.
Nevada possesses six electoral votes and under this compact those six votes would go to the candidate that received the most popular votes nationally. This means the state’s popular vote could favor a Republican President. However, if the national popular vote went to the Democrat candidate, the national winner would received all six of Nevada’s electoral votes.
If passed this law would not go into effect unless states representing 270 electoral votes joined the compact. So far eleven states and the District of Columbia have joined the compact, which is a total of 172 electoral votes. Colorado is expected to join the compact to bring the total to 181. There are five other states contemplating the joining of the compact and this would bring the total to 206.
The first reaction is that this must be a violation of the Twelfth Amendment to the Constitution. The Twelfth Amendment was an attempt to clean up role of the Electoral College in the election of a President and Vice President of the United States. When one refreshes his knowledge of the Twelfth Amendment he finds that there is nothing in the Constitution that forbids a state from instituting the method of election proposed under AB 186. In fact, the method for selecting Electors and how they cast their ballots is left for each state to decide.
Having accepted the constitutionality of the method AB 186 proposes, one must ask: Is it wise for the people of Nevada to give up the right of their majority in casting a vote for the highest office of the land? With just over 3 million residents, Nevada ranks 32 in terms of population. There are 18 urban metropolitan areas in the United States with larger populations than the entire State of Nevada. Jim DeGraffenreid, vice-chairman of the Nevada Republican Party, stated: “To suggest that a state should disregard its own voters and instead follow the will of voters in some other state is the exact opposite of what the framers intended.”
I would be more comfortable with a Constitutional Amendment that would allow for a popular vote rather than this end-run around the Twelfth Amendment.
The Electoral College may have outlived its usefulness. In early America, the lack of communication and ability of the average citizen to know the candidates the Electoral College made sense. If America is to be a true Democracy, which we all know it is not, the people would decide who is President rather than 538 representatives of the two major political parties.
What every American must come to grips with is that they have never voted for a President. They vote for electors who have the right to vote in any manner they see fit once they are selected for the position.
America is not now, nor has it ever been, a Democracy. America is, as designed by the founding fathers, a Constitutional Republic. The country is ruled by elected representatives not by popular referendum. Under the Constitution, we select Senators and Congressmen to make our laws. We select a President to enforce our laws. The President appoints, with Senate approval, the federal Judges who are supposed to interpret the law.
We have evolved to a place that the Senate and House are so busy investigating everything under the sun they don’t have time to pass laws.
The last two Presidents have taken over the role of the legislature ruling imperially with “phone and pen.”
The federal courts have now taken over the veto power of the President declaring which laws meet their approval and which they will strike down.
Since no one seems to have read the Constitution and certainly are not inclined to abide by it, it may be time to make some changes to this document.
In 1913, the election process for Senators was changed by the Seventeenth Amendment. In the original Constitution, Senators were elected by state legislators. Henceforth, Senators have been directly elected by the popular vote in a state. Those who wish to have direct election of the President might do well to study how this process was instituted by those who wanted the direct election of Senators.
But before we all jump on the band wagon of direct election of the President, we might want to speculate as to what some of the unintended consequences might be.
The positive side, with all the social media, a myriad of candidates can run for office. The joy of this is that it could destroy political parties as we know them today. Being one of those who has no party affiliation, I find this a positive.
However, there is also a negative to a direct election of the President. If a large number of candidates were to run, this could also lead to no one getting a majority of the vote, thus throwing the election into the House of Representatives. Amendment 12 reads “…
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; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.”
One could well argue that each voter was an appointed elector and if all of those seeking the presidency were to run in an open election, the chance that any one of the candidates received a majority could be slim. Of course, if the Twelfth Amendment were to be changed, it might be necessary to change the provision about having a majority and simply name the person who gets the most votes President.
However, since the instance of a person getting the most popular votes losing the election in the Electoral College has occurred only five times in the history of America, maybe we should just leave the Constitution alone on this matter.
Thought of the week… “The Electoral College is a political wisdom tooth – a historical relic that stays largely out of sight yet causes no small pain when it pops up.”
– Matthew Daneman
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6 thoughts on “No One Asked Me But… (March 13, 2019)”
The U.S. Constitution says “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.”
The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law.
Historically, major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation’s first election in 1789. However, now, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.
In 1789, only 3 states used the winner-take-all method (awarding all of a state’s electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all method is now currently used by 48 of the 50 states.
In 1789, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state.
In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the winner-take-all method) 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.
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. The abnormal process is to go outside the Constitution, and amend it.
The National Popular Vote bill is 64% of the way to guaranteeing the majority of Electoral College votes and the presidency in 2020 to the candidate who receives the most popular votes in the country, by changing state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), without changing anything in the Constitution, using the built-in method that the Constitution provides for states to make changes.
All voters would be valued equally in presidential elections, no matter where they live.
Because of statewide winner-take-all laws,
2 of the 3 most recent presidents entered office without winning the most national popular votes.
5 of our 45 Presidents have come into office without having won the most popular votes nationwide.
A recent study warns that 1 out of every 3 presidential elections where the popular vote margin is within 3% will feature a mismatch between the popular vote and the electoral college.
There are several scenarios in which a candidate could win the presidency in 2020 with fewer popular votes than their opponents. It could reduce turnout more, as more voters realize their votes do not matter.
Because of the state-by-state winner-take-all electoral votes laws (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in each state) and (not mentioned in the U.S. Constitution, but later enacted by 48 states),a candidate can win the Presidency without winning the most popular votes nationwide. It has occurred in 5 of the nation’s 58 (9%) presidential elections.
The precariousness of the current state-by-state winner-take-all system of awarding electoral votes is highlighted by the fact that a difference of a few thousand voters in one, two, or three states would have elected the second-place candidate in 5 of the 16 presidential elections since World War II. Near misses are now frequently common. There have been 8 consecutive non-landslide presidential elections since 1988.
537 popular votes won Florida and the White House for Bush in 2000 despite Gore’s lead of 537,179 (1,000 times more) popular votes nationwide.
A difference of 60,000 voters in Ohio in 2004 would have defeated President Bush despite his nationwide lead of over 3 million votes.
In 2012, a shift of 214,733 popular votes in four states would have elected Mitt Romney, despite President Obama’s nationwide lead of 4,966,945 votes.
Less than 80,000 votes in 3 states determined the 2016 election, where there was a lead of over 2,8oo,ooo popular votes nationwide.
After the 2012 election, Nate Silver calculated that “Mitt Romney may have had to win the national popular vote by three percentage points on Tuesday to be assured of winning the Electoral College.”
The National Popular Vote bill would take effect when enacted by states with 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 among all 50 states (and DC)—thereby guaranteeing that candidate with an Electoral College majority.
With the current system of electing the President, none of the states requires that a presidential candidate receive anything more than the most popular votes in order to receive all of the state’s or district’s electoral votes.
Since 1828, one in six states have cast their Electoral College votes for a candidate who failed to win the support of 50 percent of voters in their state
In elections in which the winner is the candidate receiving the most votes throughout the entire jurisdiction served by that office, historical evidence shows that there is no massive proliferation of third-party candidates and candidates do not win with small percentages. For example, in 905 elections for governor in 60 years, the winning candidate received more than 50% of the vote in over 91% of the elections. The winning candidate received more than 45% of the vote in 98% of the elections. The winning candidate received more than 40% of the vote in 99% of the elections. No winning candidate received less than 35% of the popular vote.
Since 1824 there have been 17 presidential elections in which a candidate was elected or reelected without gaining a majority of the popular vote.– including Lincoln (1860), Wilson (1912 and 1916), Truman (1948), Kennedy (1960), Nixon (1968), Clinton (1992 and 1996), and Trump.
And, FYI, with the current system of awarding electoral votes by state winner-take-all (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a plurality of the popular vote in the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with less than 22% of the nation’s votes.
A presidential candidate could lose with 78%+ of the popular vote and 39 states.
“The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states. The National Popular Vote states aren’t delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.”
– Vikram David Amar – professor and the Associate Dean for Academic Affairs at the UC Davis School of Law. Before becoming a professor, he clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit and for Justice Harry Blackmun at the Supreme Court of the United States.
In Gallup polls since 1944 until before this election, only about 20% of the public has supported the current system of awarding all of a state’s electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided).
Support for a national popular vote has been strong among Republicans, Democrats, and Independent voters, as well as every demographic group in every state surveyed. In the 41 now shown on divisive maps as red, blue, and purple states surveyed, overall support has been in the 67-81% range – in rural states, in small states, in Southern and border states, in big states, and in other states polled.
Most Americans don’t ultimately care whether their presidential candidate wins or loses in their state or district. Voters want to know, that no matter where they live, even if they were on the losing side, their vote actually was equally counted and mattered to their candidate. Most Americans think it is wrong that the candidate with the most popular votes can lose. It undermines the legitimacy of the electoral system. We don’t allow this in any other election in our representative republic.
In state polls of voters each with a second question that specifically emphasized that their state’s electoral votes would be awarded to the winner of the national popular vote in all 50 states, not necessarily their state’s winner, there was only a 4-8% decrease of support.
Question 1: “How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current Electoral College system?”
Question 2: “Do you think it more important that a state’s electoral votes be cast for the presidential candidate who receives the most popular votes in that state, or is it more important to guarantee that the candidate who receives the most popular votes in all 50 states becomes president?”
Leave the system as is. I want my states electoral votes to go to the winner in that state. I feel the states with the largest populations would determine the outcome of the election otherwise. And i do not believe that to be a good thing. I used to agree with the popular vote scenario until i understood the reasoning as to why it was put in place and now understand and agree with it. I feel the only reasoning behind wanting to change the system is to gain control and power of the government by those in power now. I would much rather see an overhaul of the voter registration system done to make sure it is only legal citizens voting in our elections. I fully believe states are doing everything they can to make it easier for non citizens to vote instead of protecting the integrity of our elections. To me that is where the real problems are at this time.