The Electoral College Power Grab

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Colorado, along with several other states, is considering a measure to join what is known as the National Popular Vote Interstate Compact. Billed by its proponents as a means of improving the fairness of presidential elections, it’s actually little more than a Democratic power-grab designed to ensure that the president is elected by overwhelmingly left-leaning cities, sympathetic to the rule of the administrative state.

While the effort was given a boost by George W. Bush’s win in the 2000 election, it has really been energized in the wake of Donald Trump’s victory in 2016. In both cases, the Republican won the Electoral College while losing the mythical National Popular Vote (NPV), the aggregate total of votes in the 50 individual state elections plus the District of Columbia.

Having worked tirelessly for over a century to transfer power from the states to the federal government, and from the legislative to the executive branch, Democrats saw themselves with nearly an unbreakable lock on the Electoral College, and with it, the only office that—in their “fundamentally transformed” regime—mattered. The big decisions all would have been made, and even a conservative constitutionalist president would only retard progress.

Donald Trump shattered that illusion, at least temporarily, by winning the presidency. Worse, from the Democrats’ point of view, Trump has proved more hostile to the regulatory state than most observers had any right to expect. He has rolled back regulations, killed others using the Congressional Review Act, and appointed originalist Supreme Court justices.

The National Popular Vote movement, while bipartisan, will serve the interests of the Democratic party and the bureaucratic class.

This Isn’t New
Democrats and discontented NeverTrumpers would like to pretend that the phenomenon of winning the presidency despite losing the popular vote is new. It’s not. Not only has it happened before, it’s come very close to happening on many other occasions.

In 1976, swap 12,500 votes in Mississippi and Ohio, and President Ford is re-elected—despite losing the popular vote by 2 percentage points. In 1960, swap 38,000 votes in New Jersey, Illinois, and Texas, and it’s President Nixon rather than Kennedy. In 1916, swap a mere 1,900 votes in California, and Charles Evans Hughes narrowly defeats Wilson in the Electoral College, despite losing the overall popular vote by more than 3 points. Between 1876 and 1888, the electoral and popular votes diverged twice, and came within a hair’s breadth of happening twice more.

In 2004, John Kerry came within 60,000 swapped votes of carrying Ohio and the presidency. Democrats hinted darkly that Diebold voting machines somehow stole the election for President Bush, ignoring the deep “injustice” that would have come from a President Kerry winning with a minority of the popular vote.

Despite Appearances, The Dems Are Consistent
The only principle at work here is partisan advantage.

Consider how the Democrats have behaved concerning the alleged plague of gerrymandering. Every time the Democrats have won a majority in the House—every single time, as far back as we have records—they have over-performed their percentage vote, sometimes by astonishing amounts. Between 1966 and 1970, the Democrats’ share of the aggregate House popular vote would have entitled them to majorities of 11, seven, and 39 seats. Their actual majorities were 61, 51, and 75. There was no movement among Republicans to move Congress to a system of proportional representation.

Suddenly, when the Republicans outperform their aggregate popular vote, and by far lower margins, it’s a crime against humanity. Holder’s and Obama’s redistricting commission isn’t about fairness; it’s about locking in “fair” elections in red-leaning states while preserving partisan advantage in a few large states where they can run up huge margins.

Since the 2014 midterm elections, we’ve also seen increasing complaints about the Senate’s equal representation and calls to increase the number of Supreme Court justices the next time the Democrats control both Congress and the White House. For all the talk of Trump’s being an imminent threat to American political institutions, it’s the Democrats who have tried to undermine their legitimacy.

Why This Matters Now
The means Democrats here employ are intended to advance very specific political goals. Progressive cities love the administrative state.

Congress has surrendered so much of its legislative power to the executive branch, making giving speeches easier and more rewarding. The Supreme Court, under its doctrine of “Chevron deference,” allows those same bureaucrats to determine the scope of their own authority. Regulatory agencies, in violation of every constitutional principle of separation of powers, now act as their own legislative, executive, and judicial branches.

While Congress has nominal oversight authority, these agencies are accountable only to the president and his political appointees. Only the most energetic and involved president can hope to make a dent in their powers, and even then only through the end of his term in office.

Today, the federal bureaucracy reaches down into the lives of its citizens as never before. When we’re voting for president, we’re no longer voting only for a person to lead us through war or persuade the Congress to pass major legislation. We’re voting for the person who can choke off financing for gun stores, put men in the women’s bathroom, force college men to face campus kangaroo courts, fail to enforce immigration law, halt nuclear energy permitting, override local zoning, force millions into energy poverty, and millions of other to buy overpriced health insurance.

Moving to a NPV for president doesn’t just let the liberal cities and the increasingly liberal suburbs pick the president, it lets them set policy for every state, city, and county in the United States.

The Strategy and Constitutional Challenges to It
Constitutional amendments require two-thirds approval of each house of Congress, then ratification by three-quarters of the states. Small states are unlikely to agree to dilute permanently their voting power for president.

The folks behind this idea believe they can bypass the amendment process. Instead, they have resorted to an Interstate Compact, to take effect when states having 270 or more electoral votes have approved it. This strategy requires the approval of far fewer states, and has allowed it to make significant progress under the radar by avoiding the focused national discussion that a constitutional amendment would attract.

Right now, proponents claim they are only 98 electoral votes away from having the compact take effect. If enough states were to pass it, other states would have to sue to stop it, and the most likely argument would be that compacts or agreements between states need congressional approval. Virginia v. Tennessee (1893) clarified that requirement. The key section of the ruling reads:

The mutual declarations may then be reasonably treated as made upon mutual considerations. The compact or agreement will then be within the prohibition of the Constitution, or without it, according as the establishment of the boundary line may lead or not to the increase of the political power or influence of the states affected and thus encroach or not upon the full and free exercise of federal authority.

The NPV compact clearly and unequivocally increases the political power of the large states that have passed it, and diminishes the political power of the smaller states that have not. That is the entire purpose of the compact.

The justices also discuss if Congress might assent after a compact is approved, rather than before: if the compact merely recognizes a pre-existing fact, or, “where the agreement relates to a matter which could not well be considered until its nature is fully developed, it is not perceived why the consent may not be subsequently given.” Neither of these conditions exists for the NPV compact. Consent must be obtained before it is passed.

There’s an excellent reason for requiring congressional approval for an interstate compact or a constitutional amendment—it gives other states and the federal government, which might be affected by it, a vote in the process. The NPV process, which seeks to diminish the power of the small states without even asking them, is the very definition of illegitimate.

In addition, there are two subsidiary arguments persuasive to justices in an originalist state of mind. First, electors were clearly intended to represent their states. Selecting them based on voters outside their own state betrays that purpose.

Second, the move from the Electoral College to a national popular vote represents a radical change in the way we elect our president. Such changes should be subject to the close scrutiny and sustained national debate that only the constitutional amendment process affords. Sneaking an interstate compact through selected state legislatures evades that debate, and the consent it implies.

That Republican legislatures have approved an interstate compact with Republicans on its board of directors doesn’t make this any less of a progressive power grab. Republicans have allowed themselves to be hornswoggled before on such things. Right now, when rural areas are overwhelmingly represented by Republicans, and the party is seeking to regain its footing in battleground suburban and liberal urban areas, there is no excuse for going along with a plan to reward permanently its opponents at the expense of its supporters.

Photo Credit: Bill Clark/CQ Roll Call

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About Joshua Sharf

Joshua Sharf has headed the Independence Institute’s PERA Project for three years. In that time he has authored a number of Backgrounders and Issue papers on Colorado’s Public Pensions, contributed to the Institute’s weekly newspaper column, and spoken to political and civic groups across the state on the subject. He routinely testifies before the state legislature on proposed pension reform bills. He is Vice Chairman of the Denver Republican Party and has also done original reporting on PERA for Watchdog.org and I2I’s Complete Colorado news site and is a regular guest on local talk radio, discussing this and other state and national political issues. He has an MBA and an MS in Finance from the University of Denver’s Daniels School of Business, and has also worked as a sell-side equities research analyst.