Presumably in reaction to the court decision striking down a state law compelling electors to vote for the winner of the national popular vote, the editors of the New York Times come down in favor of I’m not sure what, adding their voice to the clangor on the Electoral College:
If states were forbidden from determining how their electors vote, parties would only be more careful about vetting prospective electors.
The point is that faithless electors are not the real problem. What really disregards the will of the people is the winner-take-all rule currently used by every state but Maine and Nebraska. Giving all electors to the winner of the statewide popular vote erases the votes of citizens in the political minority — say, the 4.5 million people who voted for Donald Trump in California, or the 3.9 million who voted for Hillary Clinton in Texas. Nationwide, this was the fate of 55 million people in 2016, or 42 percent of the country’s electorate.
The winner-take-all rule encourages campaigns to focus on closely divided battleground states, where a swing of even a few hundred votes can move a huge bloc of electors — creating presidents out of popular-vote losers, like George W. Bush and Donald Trump. This violates the central democratic (or, if you prefer, republican) premises of political equality and majority rule.
What most people don’t realize is that the winner-take-all rule exists nowhere in the Constitution. It’s a pure creation of the states. They can award their electors by congressional district, as Maine and Nebraska do, or in proportion to the state’s popular vote, as several states have considered.
Or they could award them to the candidate who wins the most votes nationwide, regardless of the state outcome. That’s the elegant approach of the National Popular Vote interstate compact, which achieves a popular vote not by abolishing the College but by using it as the framers designed it — as a state-based institution. So far 15 states and the District of Columbia, with 196 electoral votes among them, have joined the compact, promising to award their electors to the national vote-winner. The compact goes into effect once it is joined by states representing 270 electoral votes — the bare majority needed to become president — thus guaranteeing the White House to the candidate that a majority of the country supports.
I don’t recall the Times protesting when Bill Clinton was elected president twice by a minority of the popular vote. But he won a majority of the electoral vote, fair and square. Or, in other words, once again where you stand depends on where you sit.
I should add that to date I have heard no one make a coherent argument in favor of plurality rule other than by implicitly defending the Electoral College. In other words you can accept the Electoral College which means that there will be presidents who receive a minority of the popular vote or you can reject the Electoral College and demand that presidents be elected by a majority of the popular vote, or you can oppose the Electoral College and demand that whoever gets the most popular votes wins. That’s not a defense of majority rule. It’s just changing which minority rules.
I see things drastically differently. Since the Founding our country has been governed not by a majority (however defined) but by rules. We have a rules-based system. Such a system depends on acceptance of the rules. When you find you can no longer tolerate the rules, you change them—according to the rules. If you cannot change the rules by the rules, you have some choices. You can take up arms against an intolerable system. You can accept the rules because the underpinnings of our system of government are more important than one or even a series of elections. Or you can go somewhere else more to your liking.
What you cannot do in good conscience is to continue to fulminate against the rules. That is merely sowing discord which helps no one.
I am not a Republican and I do not support Donald Trump. I do support the rules. As Robert Bolt wrote in A Man For All Seasons,
This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!
Clinton also won more votes than any other candidate.
Steve
He’s also taller than Ross Perot. Both are irrelevant. More people voted against him than voted for him both times but he won fair and square because he received a majority of the electoral votes.
Note that the Tenth Circuit Court recently held that electors may vote for any qualified person. They can not be instructed to vote for a particular person.
That’s what I alluded to in the first sentence of the post.
My comment on that is that there is no way to circumvent the Electoral College. If you want to get rid of it, the Constitution must be amended.
There was NO court decision striking down a state law compelling electors to vote for the winner of the national popular vote
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.
States can, and have, changed their method of awarding electoral votes over the years. Maine (in 1969) and Nebraska (in 1992) chose not to have winner-take-all laws
The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state’s electoral votes.
The National Popular Vote bill is 73% of the way to guaranteeing the majority of Electoral College votes and the presidency 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.
It requires enacting states with 270 electoral votes to award their electoral votes to the winner of the most national popular votes.
All voters would be valued equally in presidential elections, no matter where they live.
The 10th Circuit struck down Colorado’s attempt to compel the vote of one of its electors. If another of the federal circuit courts of appeal produces a conflicting decision, the case will go to the Supreme Court.
The only way to ensure your preferred outcome is to amend the Constitution.