Will VA Now Help Kill the Electoral College?

Where the National Popular Vote Compact stands: Passed in 16 states, passed one chamber in seven more.  Source: National Popular Vote

By Steve Haner

Add this to the pile of really bad ideas that now have a chance to pass in New Blue Virginia: Allowing California and New York to decide how to cast Virginia’s electoral votes.

Since millions who slept through government class were stunned to learn in 2016 that the popular vote doesn’t pick a president, efforts have been growing to bypass the Electoral College process. According to the folks at National Popular Vote, sixteen states with 196 electoral votes have voted to dis-enfranchise their people, and in several others at least one legislative chamber has agreed.

The Virginia General Assembly simply ignored House Bill 2422 during the 2019 Session. Its three sponsors, Northern Virginia Democrats Mark Levine, Kay Kory and Marcus Simon, will surely be back with a longer list of sponsors for 2020, and a House Privileges and Elections Committee with a Democratic majority. 

This is an end run around the United States Constitution, which has included the Electoral College process since its 1787 drafting. It was the feared electoral punch of then-massive Virginia (compared to the other states at the time) that led the founders to this compromise. What irony if the Virginia General Assembly was the deciding vote to send the idea to the dustbin of history.

It is also an end run around the usual process to amend the Constitution. Why take that trouble? What if states simply agreed on their own to award their Electoral College votes to the winner of the national popular vote?

According to that failed Virginia bill, the interstate compact doesn’t even require a majority of states to agree to take effect. It only requires agreement in states with more than a majority of electoral votes to trigger the plan. That is way simpler than getting two-thirds of the state legislatures to approve (ask the ERA folks.) States with 74 more electoral votes are required, and the states where it has passed one chamber already would be sufficient.

The assumption of course is that Virginia voters won’t mind or really notice, since it has given its electoral votes to the same party three elections in a row now, with conventional wisdom predicting the same for 2020. But how will those same voters feel if the situation reverses, a Republican wins the popular vote but is on the knife’s edge in the Electoral College? Suddenly Federalism will enjoy a rebirth, even here in New Blue Virginia.

There apparently are a fair number of Democrats who understand the downside of this idea, and not just those in the smaller states that would suddenly become sideshows in a national campaign. (Vermont approved this. Are they crazy?) And oddly there are some Republicans attracted to this idea.

The organized opposition comes from a group called Save our States, with their argument summarized in this article in The Hill a few months back. Author Sean Parnell paints a grim picture:

It would be the Florida 2000 recount all over again any time the election was thought to be close, except on a vastly larger scale with lawsuits in most, if not all, of the nearly 4,500 counties and townships that administer elections.

He reports at least one state, Colorado, is rethinking its position and plans to ask its voters about the idea in a 2020 referendum. He is right that a side effect of the compact would be pressure on states to go to a uniform voting process, rather than the variety of rules we see now.

More popular with Virginia Republicans is another approach, to award Virginia’s electoral votes by congressional district. The 2019 House Joint Resolution 627 and Senate Bill 1002 would give two electoral votes to the candidate who won statewide, but then divide the rest based on the congressional district outcomes. Was that an admission the Republican sponsors see no chance of a future GOP win for a presidential candidate who will need all 13 Virginia electors? Save Our States takes no position on how states allocate their electoral votes internally.

Both are bad ideas. It really was the Miracle of Philadelphia, with the Electoral College one of the provisions intentionally creating a federal republic and not a democracy. James Madison and other founders, fearing unchecked democracy, understood that. But in a country where we dare not even name a school for Madison, how long can respect for his wisdom abide?

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21 responses to “Will VA Now Help Kill the Electoral College?

  1. I had missed this movement. It is pretty clever.

    My first reaction to this gambit was it was an interstate compact, which needs Congressional approval. But, as I noted in an earlier post regarding interstate compacts, “It turns out that not all agreements among states constitute an ‘interstate compact’ in the Constitutional sense. The Supreme Court in its first case dealing with interstate compacts (Tennessee v. Virginia, 1895), and confirmed in 1985 in its most recent case on this subject, declared that an agreement among states does not require the consent of Congress if it does not infringe on, or encroach upon, federal supremacy.” https://www.baconsrebellion.com/wp/more-power-for-states-good-or-bad/ It does not seem that federal supremacy will be infringed by this action.

    The assertion that this “disenfranchises” Virginia voters is ridiculous. Virginia voters would get to vote just as they always have. A Virginian’s vote would count just as much as one from California or one from Wyoming.

    The Electoral College process should be abandoned. In two of the last five Presidential elections, the candidate who received the most votes lost the election. It is time to end this travesty.

    And don’t bring up the wisdom of Madison. I am a great admirer of Madison and the Constitution that was forged in 1789. But, that Constitution of 1789 obviously was not perfect and it was a product of compromise. That is why an ability to amend it was included. And its provisions are not sacred. After all, the Founders ended up sanctioning slavery in the original Constitution and provided for the state legislatures to select each state’s Senators. The genius of the Founding Fathers is that the Constitution is a living document and has been amended to meet the needs and wishes of the people at varying times.

    And times are different than they were in 1789. One reason for enabling “electors” to elect the President, rather than by popular vote was that communication was very different in those days. It was thought that the ordinary people would not know enough about the candidates to cast informed votes, so they could choose people in their states they trusted to make that decision. (There was also a good deal of distrust in the common people, as well.) Obviously, the American people have enough information today to make a decision. (Too much information, some would argue.)

    As for the Federalism argument and the need to protect the smaller states, those smaller states still would have outsize representation in the U.S Senate.

    Unchecked democracy? Again, there is Congress, with different bases for representation, as well as the courts. Our current President is learning that there really are checks and balances.

    • “A Virginian’s vote would count just as much as one from California or one from Wyoming.” Yeah, but now it counts more than CA, NY, etc. Why surrender that?

  2. Well, not that the Forefathers all agreed on one concept and not that they did not alter it notwithstanding , having contemporary folks who willingly engage in gerrymandering and suppressing the vote – messing with this is a recipe for trouble.

    I support the concept of two Senators per state regardless of population and I support the Constitution which allows states to choose a proportional vote.

    “Winner takes all” is little better than “mob rule”.

    I would think we’d want the Electoral vote process to be an accurate aggregator of the popular vote>

    Though I have real fears that we have plenty of folks who still support gerrymandering and voter suppression and other ways to influence voting in ways that violate one-man-one vote.

    Finally, to point out that Virginia’s bicameral legislature does NOT do what the Federal legislature does with the provision of 2 senators per state regardless of population. Virginia just makes larger districts and that’s why both houses can be affected by an overall urban/suburban trend even if Rural Va has not though if a state has more urban population than rural – the Senators tend to respond to urban/suburban issues.

    • To your last point, the Supreme Court has ruled that states have to apportion both houses of their legislature (and in the case of Nebraska, its single house) on population.

      Even if we got rid of the Electoral College, we would not have a “winner take all” system. We are a nation of laws, which even the President must abide by. There would be Congress, with its two houses, and there would be the courts to guard against mob rule. In particular, the Bill of Rights provides protections to minorities against the rule of majorities.

      The one true way of having the “electoral process be an accurate aggregator of the popular vote” is to have the total popular vote be the last word on who gets to be President.

    • “I would think we’d want the Electoral vote process to be an accurate aggregator of the popular vote…” Another one who slept through history/government class. Hey, if you and Dick want to do this, do it through the amendment process and just eliminate the Electoral College period. This just turns it into a sham.

      • I would prefer to use the amendment process. However, that would require a lot of states to vote against their own self interest. So, to use the amendment process is akin to playing with a stacked deck.

      • I will not claim to be a complete student of the issue but the overall intent of this process is to fairly represent the will of the governed who have the one-man-one vote right – and there should not be what are essentially technical loopholes – as opposed to an explicit intent.

        I would posit that if the Founding Fathers were alive today and saw the POTUS take office without the popular vote – they’d rethink it.

        The point here is NOT your version of civics class guy – as if others don’t “understand” … sorry

  3. It’s all about power. It’s all about achieving short-term electoral advantage. Except for a principled few who genuinely and deeply believe in the wisdom of the founding fathers, both sides of this debate would switch argument in a heartbeat if they thought it to their advantage.

    Majority rule is wonderful…. except when it isn’t, like when you’re a minority (of whatever stripe) and your ox is getting gored.

    • Count me among the principled few….of course.

    • The person who gets the most votes should be the President, regardless of whether that person is a Republican, Democrat, Know Nothing, or a Socialist (gasp).

      • Imagine this kind of process at the local or state level where the rules are written such as the person who gets less votes gets the office.

        So, we have county and State Electors who actually vote and decide that the guy who lost should have won…. Oh what a Joy that would be for the “principled”! 😉

        Want that? So, YEP – we DO elected Boards of Supervisors and House of Delegates by the proverbial “mob rule”. Oh.. and that’s probably also covered in “Civics” class! 😉

    • re: all about power.

      Nope. Not that cynical. We need a fair process that puts into office the person who won the most votes – period. If that “works” for other elective offices then why not POTUS?

      The wrong ways that the Electoral College “works” is not to be admired nor respected much less should be the province of those who would use as many means as they could to essentially corrupt the INTENT of Democracy and representation of one-man-one-vote policies.

      I don’t think that typically the Dems have supported that in modern times – in the past when they were part and parcel of racial segregation – yes but now – in modern times – most of them are opposed to gerrymandering and voter suppression and the like.

      Today – it’s all about getting blacks and other minorities out to vote and gerrymandering is the polar opposite of that.

  4. The Constitution does not adopt the one-person, one-vote concept for electing the president and vice president. We vote for presidential electors, who, in turn, vote for the presidential and vice presidential candidate who won the most popular votes in the state. It’s not tied to how we elect members of Congress, the General Assembly or the board of supervisors. It isn’t because it isn’t supposed to be.

    The Constitution used to provide for the election of U.S. Senators by state legislators. That was changed by amendment. The Constitution used to provide that the president and vice president candidates were elected separately, with the candidate receiving the most electoral votes elected president and the candidate with the second highest total elected vice president. That was changed by amendment.

    If you want to get rid of the electoral college, amend the Constitution.

  5. TMT – Don’t you think the States also have Constitutionally-granted powers ?

    On the electoral college issue – go read Wiki or other material and you will see that the Founding Fathers were NOT of one mind on the issue. Debate was heavy and many differing views were present.

    I fail to see the useful intent of the electoral process – and it has some obvious flaws like letting the elector vote the way they want instead of the district they represent.

    What is the legitimate purpose of allowing that?

    Can you imagine in a close election what would happen if someone actually did that?

    • Of course the states have various powers under the Constitution. But the electoral college is part of the Constitution. If the country wants rid of it, amend the Constitution. Isn’t that the argument of those who support ratification of the Equal Rights Amendment? Why the difference? (Hint, the goddess of the left, Hillary Clinton, was denied her preordained right to be President of the United States.)

      It is immaterial what people thought about not including the electoral college in the Constitution because it was adopted as part of the Constitution. When the Constitutional Convention voted on the final document and the states ratified, those who voted to the contrary were effectively irrelevant.

      Elector fidelity is a problem. I believe they cannot be compelled to vote as the state or district did. But they take an oath to do so. As such, by voting opposite of their sworn oath, they likely committed perjury. If I were the prosecuting attorney, I’d file perjury charges be it a he or she, D or R. If we enforced our laws, we might have fewer problems as a nation.

  6. I think the States do have rights that can affect the way the Electoral process works – they are legitimate Constitutional rights as validated by the courts.

    I think my point is that there is more than one way to effect changes in the way we are governed and to be perfectly honest – it’s this particular POTUS who argued strenuously that EOs (execute orders) were “wrong”, has taken all of us to a new level in exercising power a lot of folks did not think he had.

    The same argument can be made with respect to the States ability to band together to do things – no?

    Tradition is being Trumped – pun intended – and it opens up a a panoply of potentials that we all took for granted were not legitimate.

    Turns out – they are legitimate.

    And – perhaps, some can make the argument that the Founding Fathers actually also intended that… so that there are a rich set of things that can be done BEFORE you get to the need to do a Constitutional amendment!

    • “And – perhaps, some can make the argument that the Founding Fathers actually also intended that… so that there are a rich set of things that can be done BEFORE you get to the need to do a Constitutional amendment!”

      Uhhh … no. At least not Thomas Jefferson …

      https://oll.libertyfund.org/quotes/608

      Virginia has rewritten its state constitution six times. Rewritten, not just amended. In my opinion it’s time for a seventh rewrite but the idea that the US Constitution was intended to be valid forever with almost no amendments is a figment of modern elites who know that interpreting and reinterpreting the same old document affords them much greater opportunity for graft, corruption and crony capitalism than regular amendments or rewrites.

      • Are you in favor of convening a Constitutional Convention by call of 2/3 of the States to do a total rewrite of the federal document? As you know, that’s been talked about for years. I think it would be total chaos, and the result would probably be pretty ugly.

  7. So we’ve got 27 amendments so far. That process works. Some were big deals. The people want a total re-write, well, that can be done. It hasn’t been. That’s quite a can of worms if anybody opens it. You are the first, DJ, to highlight and deride the many versions of the state constitution – kinda shocked you’d be the one to say the same damage should be done to the national one! Been reading all this, and will admit I took a hard stand to stir the pot, but so far nobody has moved my opinion.

    The Electoral College like having state legislatures name the senators was an intentional moderating effort. A presidential candidate needs a broader geographic base to win, needs to win a series of states, and it really makes it hard for a third party candidate to rise up. No Electoral College and some president might win with 39 percent of the vote and NO regional balance. The 17 Amendment altered the nature of the Senate but the Electoral College remains.

    Never confuse Jefferson with Madison. When Jefferson was wrong it could be spectacular.

  8. The Electoral College itself is a generally harmless archaism these days. State legislatures can tell their electors what to do, and they all have. Electors can be explicitly “uncommitted” or committed to a particular candidate or candidates or committed to support the nominee(s) of a particular party. Nearly all the States have adopted laws that require in effect, “Electors must vote for the person who wins the popular vote in the State”; a couple of states have one elector assigned to follow the popular vote in each congressional district. The only remaining issue is rogue electors who break their State’s law and pay the consequences. This is a low risk in practice — but the existence of the E.C. could actually be very useful if un-foreseen circumstances arose — for example, if the president-elect died or were killed in a nuke attack while awaiting swearing-in.

    So why not just go with the national popular vote? Because it is really important that a candidate now has to win the vote State by State. That forces the organization of the campaign state by state; and the swing states get a lot of mileage out of that, a lot of visits and a lot of attention to local issues. The supporters of scrapping the E.C. say this means the voters in states that are not swing states get ignored; but voting state by state gives greater attention and advantage to the political center and to consensus-builders, rather than to extreme, perhaps polarizing candidates with a strong base only in certain portions or certain demographics of the country. A purely national-vote winner-take-all election would be drive almost entirely by national television ads and social media posts; narrower regional issues would get ignored. Abandon the Electoral College itself if you will but don’t abandon the State-by-State voting; and since that’s basically all the E.C. amounts to in effect these days, I say, keep the Electoral College; don’t rock the E.C. boat.

    There is another, separate problem with the E.C. compared with the popular vote, which is the number of electors assigned to each State. Yes, the number of electors largely reflects the number of Representatives sent to Congress which is proportional to population; but then there are those two electors that reflect the number of Senators, which gives disproportionate advantage to the low population States, which these days are disproportionately Red. Mechanically this could be fixed by Constitutional amendment simply by keeping the Electoral College while eliminating the two electors per state that reflect Senators. But the goal, of course, is transparently to get rid of the Red-state advantage — and lots of luck ever getting that through most Red-state legislatures let alone Congress. So what we will end up with is a bunch of populous states committed by compact to cast their electoral votes according to the national popular vote, but a bunch of less populous states refusing to sign the compact and continuing to send electors to vote according to the individual State’s popular vote. It seems to me that would accomplish essentially nothing but add lots of confusion on Election Night.

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