Nee Law Firm
ASSAULT ON THE ELECTORAL COLLEGE by Kevin Diehl
The Electoral College is under heavy assault these days. Consider what some of the candidates in the Democrat primary are saying. Elizabeth Warren’s website calls for “getting rid of the Electoral College.” Pete Buttigeig’s website declares: “We need to abolish the Electoral College and replace it with a National Popular Vote…” And Bernie Sanders has tweeted his support for eliminating the Electoral College.
Why the urge to be rid of the method we have used to elect our presidents since the birth of this nation? For the Democrats, it’s mostly about recent history. As you may have heard a time or two, in 2016 Hillary Clinton won the popular vote but lost the Electoral College. The same thing happened to Al Gore in 2000. Thus, the Democrat party has a festering disdain for the Electoral College.
But abolishing it won’t be easy. The Electoral College was enshrined in the United States Constitution, put there by the Founders as a compromise to the states which were concerned about being subsumed by an all-powerful national government. Maintaining a balance of power between the states and the federal government was, and is, essential. President Reagan commented on this when he explained that the states do not merely serve as regional administrative areas of the country, but rather are the essential building blocks of America’s political, legal and civic life.
In case you’ve forgotten your high school civics, here’s how the Electoral College works. Each state receives the same number of presidential electors as it has senators and representatives. Thus Ohio, with 16 congressional representatives and two senators, has 18 electoral votes. Montana, a large state with a small population, has one congressional representative and two senators, giving it three electoral votes. No state has fewer than 3 electoral votes. There are a total of 538 electoral votes, and a candidate needs 270 to win.
Historically, the electoral votes for each state go to the winner of that state. 48 states and the District of Columbia have a winner-take-all system, where the winner of that state’s popular vote gets all the electoral votes. The two outliers – Maine and Nebraska – award their electoral votes by congressional district.
In 2016, Trump won the Electoral College by a 304-227 margin.
To truly abolish the Electoral College would require a constitutional amendment. By design, that’s a time consuming and difficult process. So the folks who want the Electoral College gone are trying to circumvent the Constitution.
To that end, the assault on the Electoral College has proceeded on two main battlefronts.
The first is something called the National Popular Vote Compact (NPVC). The NPVC is a proposed interstate agreement in which the states that sign on agree that they will appoint their presidential electors in accordance with the national popular vote, rather than their own state electorate’s vote.
So, for example, if the NPVC had been in effect in 2016 (it wasn’t) and if Ohio had joined the compact (it hasn’t) our electoral votes would have gone to Clinton because she won the national popular vote, even though Trump prevailed in Ohio.
Thus far, 15 states and the District of Columbia – representing 196 electoral votes – have signed on. The NPVC needs states representing 74 more electoral votes before the compact would go into effect. If it gets to that point, the non-signatory states would undoubtedly challenge the constitutionality of the compact in federal court.
The second battlefront is of more immediate concern, and it’s playing out at the United States Supreme Court in the form of two cases involving what are known as “faithless electors.”
The first case is called Chiafalo v. State of Washington. Currently, 30 states have laws requiring electors to cast their vote for the winner of that state’s popular vote. Washington is one of them. But in 2016, when Clinton won the popular vote in Washington, three “faithless electors” cast their votes for Colin Powell, hoping to persuade electors in states Trump had won to change their vote and deny him the presidency.
The state levied thousand-dollar fines against the three electors for violating the law. In response, those three challenged whether the state can bind an elector to select the person who won the state’s popular vote. The Washington Supreme Court upheld the state law and rejected the electors’ claim that they had the freedom to vote as they wished.
The second case is called Baca v. Colorado Department of State. In 2016 Clinton won Colorado, but one elector, Micheal Baca, defied state law and cast his vote for John Kasich. Baca, a high school government teacher, said, “I was trying to stop Donald Trump from becoming president of the United States.” But Colorado’s secretary of state removed Baca and appointed a replacement who then voted for Clinton.
Baca subsequently challenged the state law but lost in federal court. On appeal, the 10th District Court of Appeals reversed the ruling and held that Colorado’s law is unconstitutional on the ground that the United States Constitution grants electors the freedom to vote for whomever they choose.
Both cases are now before the Supreme Court and, depending on the outcome, have the potential to change the very nature of the Electoral College.
The Electoral College isn’t very popular right now, but it seems unwise to hastily jettison a venerable institution. As the editors of National Review observed, the Electoral College requires the people who are seeking our country’s only nationally elected office to build a wide constituency – one that encompasses states both large and small, sprawling metropolises and rural countryside, white collar and blue. “The Electoral College,” the editor’s wrote, “is one of the many finely tuned institutions within the [Constitution] that have ensured stability and continuity in America for more than two centuries.”
I’ll give the last word to Alexander Hamilton. During the Constitutional Convention, in response to a question about the Electoral College, Hamilton said, “If it be not perfect, it is at least excellent.”