Why electing a President by National Popular Vote is a very bad idea

cartoon by Kevin “Kal” Kallaugher

America is on the precipice of a radical institutional change — one that could forever remake how we elect our nation’s leader.

The initiative driving this change is the National Popular Vote (NPV), an interstate agreement that will ensure future presidents are elected by popular vote rather than by the Electoral College. The NPV will only go into effect once 270 Electoral Votes are accounted for in the participating states.

(As of this writing, the state legislatures of Colorado and New Mexico passed the National Popular Vote Act through its first committee hearings. If passed, that would bring the total of electoral votes to 186.)

Many state lawmakers are selling NPV as a solution to a commonly held belief that our electoral process does not guarantee that every vote counts and that those votes do not truly express the will of the voters. But, the NPV system offers no solutions to these concerns. For starters, NPV doesn’t guarantee greater ballot access for disenfranchised voters, which is a necessary component of expressing the popular will of voters writ large. Moreover, forcing state electors to vote in accordance with a state’s popular vote was ruled as unconstitutional by the 10th Circuit Court of Appeals in Baca v. Colorado Department of State.

Instead, NPV artfully avoids considering other problems plaguing our electoral process such as the oligopolistic ascent of the two-party system, ballot access issues, using outdated election software, utilizing the products of election system companies that have been shown to act nefariously or alter elections altogether, and gerrymandering. Rather than addressing these problems, NPV seeks to drastically redefine our government and bend it toward political power rather than public well-being.

The Electoral College was designed to thwart mob rule. And it’s doing a damn fine job at it.

One of the arguments set forth by supporters of NPV is that the Electoral College is an archaic institution that prevents the will of the people from being expressed. Furthermore, they assert that removing this institution would modernize our electoral system and thereby truly represent the will of the citizenry. This argument is patently false. Removing this “archaic” institution would radically alter our government and bend it toward mob rule, which James Madison explicitly warned against in Federalist no.10.

“A pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction,” he wrote.

The election of 1860 encapsulated Madison’s point. At the time, Southern Democrats were the only party with a national presence. They had won every election since 1828 and campaigned on allowing slavery to continue in the south while the north slowly shied away from the practice. This is why Abraham Lincoln said in his 1858 “House Divided” speech that “Either the opponents of slavery will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in course of ultimate extinction, or its advocates will push it forward, till it shall become lawful in all states, old as well as new — North as well as South.

Had the Democrats run just one candidate in 1860, there is no doubt that they would have won. According to 270 To Win, the party gathered over 2.1 million popular votes in the election. However, they were split between John Breckinridge, a lawyer from Kentucky, and former Senator from Illinois Stephen A. Douglas. Both politicians supported slavery but were sharply divided on the expansion of slavery and state’s rights. This fracture allowed a unified Republican Party to secure the election, thereby thrusting the country into Civil War.

Madison argues that “a common passion or interest will, in most every case, be felt by a majority of the whole.” But, those common passions and interests seldom line up with what is good for the public at large, according to Madison. To take a contemporary example, it is true that a large swath of the Democratic coalition feels it necessary to impeach President Donald Trump. However, doing so along ideological lines would be of great detriment to the country, given that it would set the standard by which all following impeachment proceedings would be judged. This could create a situation where no president stays in office for a full term, and could effectually make our government more incompetent than it already is (if that’s even possible).

“Hence, it is that such democracies 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,” Madison wrote.

Madison argues that appealing solely to the popular will of the electorate would elevate the power of political parties and demure the rights of the citizens who elected the lawmakers. This is contradictory to both the foundational elements of American society and what the Founding Fathers had in mind when they created the Electoral College in the first place.

The NPV attempts to rebuff this argument by positing that “ the mob already rules in American presidential elections.” An article by The Atlantic argues the same point by saying that new media such as social media — and in Madison’s day, newspapers — effectively create mobilization platforms for mob rule. However, if these platforms were truly effective in mobilizing voter blocs, then Hillary Clinton would currently be the President. She won the popular vote in 2016 by near 3 million votes, after all.

Furthermore, supporters of NPV would argue that the Trump campaign’s use of digital technology more closely epitomizes mob rule in action. How could he have won otherwise, they might ask. Trump threaded the needle of the Electoral College by carrying four large states — Florida, Pennsylvania, Michigan, and Wisconsin — by less than 1 percentage point while winning 75 electoral votes. His campaign targeted the right people with the right ads to make them vote in his favor. This doesn’t constitute mob rule on the whole because Trump garnered these blocs in very specific locations, not nationwide. If he had, then he would not have lost the national popular vote as well.

These points beg an important question that needs to be addressed: does our government currently bend to the popular will of its citizenry, and if not, should it?

Our Founding Fathers were incredibly skeptical of pure democracies and for good reason. That is why they established a Republican form of government with democratic processes for establishing such a government. If they had established a popular form of government, the processes of which would move with a molasses-like viscosity because each decision that our current form of government makes for itself — through the deliberative bodies duly elected by the people — would be left to the people themselves to decide. Moreover, some of the most pernicious aspects of American history — like slavery — might still be in place if we had a purely democratic government.

Madison argues this same point in Federalist no. 37 when he describes the painstaking process of the Constitutional Convention. He describes the process as one that invites “a misfortune, inseparable from human affairs, [where] public measures are rarely investigated with that spirit of moderation which is essential to a just climate of their real tendency to advance or obstruct the public good.” Those “misfortunes, inseparable from human affairs” he describes are the “excite[d] dispositions” from those on both sides of the issue which make a fair discussion and accurate judgment of a policy’s merit nearly impossible.

The same would be true of leaving governmental or parliamentary decision-making to the popular will of the people. Imagine having to get a majority of Americans to agree on a balanced budget, or to go to war. Talk about death by a thousand cuts…

That’s why our Founding Fathers instituted a Republican form of government, — to ensure that it functions at a deliberate pace. We elect representatives for this same reason and give them the intellectual independence necessary to do their jobs without having to ask their constituency about every little detail. Otherwise, being a representative would be nothing short of a slave and make the job untenable for nearly everyone.

NPV mechanisms have already been adjudicated as unconstitutional

A report by the New York Times shortly after Trump’s election found that Electors vote faithfully with the popular will of their constituents 99 percent of the time. The 1 percent of Electors who go against their constituents will — known as Unfaithful Electors — do so for very specific reasons outlined in Article II, Section 1 of our Constitution and the 12th Amendment.

As the 12th Amendment’s Habitation Clause states, “ The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves…” On its face, this statute says that an Elector cannot cast a vote for a president for vice president that hails from the same state as that Elector. It also says that Electors can choose a candidate from their state so long as the other is not from that state. However, the court’s interpretation of this statute is a bit muddier.

This mechanism was challenged after the 2000 election in Gore v Bush. George W. Bush certainly claimed residency in Texas. On the other hand, his running mate, Dick Cheney, also owned a house in Texas and was the CEO of Haliburton, a company headquartered in Dallas. However, because Cheney was a representative elected from the state of Wyoming, and he had put his property up for sale, the court reasoned that this was not enough to overturn the state’s votes for the duo. Had the court reversed its decision, the election would have swung to Al Gore.

This brings us to an interesting question about the 2016 election: how was Hillary Clinton able to win New York’s 29 electoral votes given that she lives in Chappaqua? Furthermore, could Donald Trump have won those votes if he had won the state’s popular vote?

The Constitution answers this question clearly by giving the state’s “exclusive” and “plenary” powers to choose the method of awarding their electoral votes. New York state election law says nothing about compliance with the Habitation Clause, and therefore allows the Electors to award the state’s electoral votes to the candidate who receives the most votes. Similarly, these “exclusive” and “plenary” powers are what allow Maine and Nebraska to award their votes by the number of congressional districts won rather than a state-wide popular vote.

The NPV takes this interpretation and applies it in a very extreme manner by essentially electing each resident that votes as an elector, thereby solidifying that Electors follow the will of the popular vote. The court decisions that the NPV cites as justification are McPherson v. Blacker (1892) and Ray v. Blair (1952).

In McPherson, the NPV cites:

“Doubtless it was supposed that the electors would exercise a reasonable independence and fair judgment in the selection of the chief executive, but experience soon demonstrated that, whether chosen by the legislatures or by popular suffrage on general ticket or in districts, they were so chosen simply to register the will of the appointing power in respect of a particular candidate. In relation, then, to the independence of the electors, the original expectation may be said to have been frustrated.”

Blair followed this reasoning by saying:

“No one faithful to our history can deny that the plan originally contemplated, what is implicit in its text, that electors would be free agents, to exercise an independent and nonpartisan judgment as to the men best qualified for the Nation’s highest offices.…

“This arrangement miscarried. Electors, although often personally eminent, independent, and respectable, officially become voluntary party lackeys and intellectual nonentities to whose memory we might justly paraphrase a tuneful satire:

‘They always voted at their party’s call

‘And never thought of thinking for themselves at all.”

But, the point at issue between these two decisions is whether or not Electors should be allowed to think independently or follow their state’s popular vote. McPherson casts the Electors as dutifully following the will of their appointees while Blair castigates the Electors for not thinking independently and becoming “voluntary party lackeys.” Both cannot be true simultaneously, and the NPV seems to side with forcing their Electors to follow the popular vote when casting their ballots.

Colorado tried to force three of its electors to vote for Clinton in the 2016 election, a move which was unconstitutional in the eyes of the 10th Circuit Court of Appeals.

One of the electors reached out to former Colorado Secretary of State Wayne Williams to inquire about whether he could vote for John Kasich instead of Clinton due to his concern about foreign election interference. Williams responded by threatening to remove the elector if he didn’t vote for Clinton, a move that Blair took issue with directly. The elector ended up voting for Kasich anyway and was removed by Williams not too long after. The elector sued for personal damages in federal court in Baca v. Hickenlooper but was denied. He then appealed to the 10th Circuit, which ruled that Williams’ decision was unconstitutional because it violated Article II of the 12th Amendment, even though Colorado law requires the electors to vote with the popular vote.

States within the Compact would have undue influence over national elections

The irony of NPV is that it will completely eliminate the influence of other states outside of the Interstate Compact to elect a president once the 270 electoral vote threshold is met. The internal mechanisms of NPV will also increase both the likelihood of true mob rule in American politics. For a plan that promises to make all votes count equally, this irony is truly laughable.

As the National Popular Vote website states, “ Because of these state winner-take-all statutes, presidential candidates have no reason to pay attention to the issues of concern to voters in states where the statewide outcome is a foregone conclusion.” However, their proposed solution to the problem would only deepen this divide, and further disenfranchise rural voters from the electoral processes of their state.

For example, let’s look at the electoral map from the 2016 presidential election in my home state of Colorado.

As you can see, Clinton carried 20 out of 64 counties and won the state’s nine Electoral College votes. The counties she won are demographically Democratic strongholds, including Eagle County, Denver County, Adams County, Arapahoe County, and Boulder County, among others. However, Trump carried the entire eastern plains, which is the state’s agricultural center, and the western slope, which is not very densely populated.

Even though she won just a third of the counties, Clinton won the state because she focused on the densest population centers. Denver, Adams, and Arapahoe counties alone make up over 30 percent of the state’s population. Add in Jefferson County (which she also won) and the total is close to 40 percent.

Adding a National Popular Vote provision to the elections process does nothing to ensure candidates or voters have to pay attention to the issues that affect the entire state. In 2016, Clinton campaigned in front of large urban centers and avoided talking about infrastructure or agriculture with most of the state. In fact, such a provision would further exclude those rural communities and guarantee that Colorado’s political decisions would be determined by a handful of counties. The same will be true of every state in the union with the smallest states bearing the brunt of this burden. This should not be taken to suggest that rural voters are more valuable than urban voters, but that the system rewards candidates who reach the most people.

The NPV counters this claim by arguing that its Interstate Compact is only viable once the 270 electoral vote threshold is met. But, this provision opens up the possibility of future candidates using that same targeted advertising techniques that Trump used in 2016 to build coalitions in each of the participating states. This could make it nearly impossible for candidates representing parties outside of the coalition to get enough votes in those states. It would also disincentivize third-party candidates from entering those races, thereby strengthening the two-party system.

It’s understandable that many people are frustrated with our current voting systems. Our electoral system is ripe with problems. However, overturning the system that checks the tyrannical power of political majorities will not solve those problems, and may, in fact, make them worse.

Journalist covering housing, police, and government.

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