2019 Leg Session, Columnists, Constitutional Law, Elections, Electoral College, Mike Rosen, National Popular Vote, Politics, U.S. Congress

Rosen: Don’t let Colorado be an Electoral College dropout

They’re b-a-a-a-ck. Like zombie hordes returning from their graves, the relentless campaign of Democrats in the Colorado legislature to sabotage the Electoral College is back. This year’s effort is Senate Bill 42, a virtual rewrite of earlier failed efforts: Senate Bill 46 in 2007, House Bill 23 in 2006 and House Bill 1299 in 2009 which were blocked by Republican legislators. Now, with Democrats holding a majority in both chambers of the legislature and with a Democrat governor, they believe their moment has arrived.

If signed into law, it would commit Colorado to a compact of states that pledge to cast all their electoral votes for the presidential candidate that gets the most popular votes, nationally, regardless of who gets the most votes in their particular state. So, even though a plurality of Coloradans might vote for presidential candidate A, our nine electoral votes would go to candidate B who was favored by voters in other states.

This would include Colorado in a movement called the “National Popular Vote.” It’s the brainchild of John Koza, a liberal California multimillionaire whose lavish contributions to Democrat candidates have earned him an honored spot in the “Mother Jones 400,” the radical left-wing magazine’s listing of top political contributors. It’s not so much a nutty idea as it is a contrived, nefarious, conspiratorial, shrewd, devious scheme to, in effect, circumvent the Electoral College if enough states join the compact to create a majority of 270 electoral votes.

The above-board way to replace the Electoral College with a national popular vote for president would be to amend the Constitution of the United States. But that would require ratification by three-fourths of the states. Knowing that there are enough small states to block that, Koza came up with this ruse to circumvent the amendment process and achieve, through legislation, his goal of electing Democrat presidents in perpetuity and doing so in the name of “democracy.”

The problem with that argument is that we are not a direct democracy and never have been. We’re not a collectivist, amorphous blob but a confederation of individual states retaining certain sovereign powers, unique values and agendas. This nation’s founders, by design, created a constitutional republic. The word “democracy” appears not a single time in the Constitution or the Declaration of Independence. Instead, Article IV, Section 4 of the Constitution specifies: “The United States shall guarantee to every State in the Union a republican form of government.”

Yes, we have some democratic institutions, but we also have many decidedly anti-democratic safeguards like the Bill of Rights to protect individuals from the tyranny of the majority, representative government, federalism, the separation of powers, checks and balances, judicial review and the presidential veto to name just a few. The biggest of which is the US Senate with two seats for every state regardless of population. In Federalist Number 39, James Madison explained that the House of Representative derives its powers from the people and the Senate derives its powers from the states.

The principle of “one person, one vote” applies to the House, not the Senate or the election of presidents. Madison also averred that, “The immediate election of the President is to be made by the states in their political characters.” That is, as individual entities not as members of any collective “compact.”

We don’t have national popular elections, and shouldn’t. What we have are 51 separate elections in each of states and the District of Columbia. It’s only as a matter of curiosity that we tally the votes in those 51 popular elections to produce a national total. But it doesn’t matter; it has no force of law. Electoral votes are cast by each state to reflect the preference of its voters in keeping with their sovereignty under the principle of federalism.

Votes in the Electoral College are apportioned as they are to protect less populous states from being overwhelmed and rendered irrelevant by more populous ones. True, Hillary Clinton got 2.9 million more popular votes, nationally, than Donald trump in 2016. But that’s because she won California ─ a Democrat stronghold and the nation’s most populous state with 40 million people ─ by 4.3 million votes. Subtract California, and Trump won the other 49 states by 1.4 million votes. Also, subtract Hillary’s 1.7 million-vote victory margin in New York, and Trump won the other 48 states by 3.1 million votes. That is if the national aggregate matters, which it doesn’t.

Of course, we can’t eliminate California and New York. So, a national popular vote would marginalize less-populated states, undermine geographical diversity and grossly magnify the influence of higher population states partial to Democrats. If the nation elected presidents through a direct popular vote, why would candidates waste time and money competing for a differential of relatively few votes in low population states when 25 million votes are at stake in New York and California.

Supporters of the “National Popular Vote” movement, almost exclusively liberals and Democrats, aren’t pursuing this as a matter of principle or respect for the Constitution. It’s strictly about power politics and pragmatic electoral mathematics. They know they own most of the nation’s major population centers and they see the Electoral College, as currently constituted, as an obstacle to permanent control of the presidency.

With their control of the state legislature and the governor’s office, there’s nothing to stop Colorado Democrats from passing Senate Bill 42 and enlisting Colorado in this conspiratorial compact of states. Our best hope is that it will be irrelevant. If the “National Popular Vote” movement ever reaches critical mass, it’s not likely to withstand a constitutional challenge, and certainly not with an originalist majority on the Supreme Court.

Longtime KOA radio talk host and columnist for the Denver Post and Rocky Mountain News Mike Rosen now writes for CompleteColorado.com. 


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