2020 Election, Electoral College, National Popular Vote, Uncategorized

Hardaway: Colorado joins NPV, but Electoral College isn’t going away

Since 1787 there have been over 700 attempts to “abolish” the Electoral College. All have failed when confronted with Article V of the U.S. Constitution, which provides that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

This inconvenient clause remains as the only provision in the entire Constitution that cannot be amended except with the consent of every state. Since Article II guarantees that every state’s weight in presidential elections derives in part from its equal suffrage in the Senate, it follows that the government cannot deprive any state of this guaranteed weight in presidential elections unless every state consents.

For over 200 years, this constitutional barrier has not prevented the partisan practice of creating contentious political theater on the subject of the Electoral College. One of these attempts occurred in 1956 when Republican senators, convinced that the Electoral College favored Democrats, attempted to pass legislation abrogating the Electoral College. A young Sen. John F. Kennedy valiantly quashed this misguided attempt in one of his most famous speeches. With great eloquence, he explained how the Electoral College serves as the foundation of the Founding Fathers’ vision of federalism. He persuaded his fellow senators that abolishing the Electoral College would “break down the federal system under which most states entered the union, which provides a system of checks and balances to ensure that no area or group shall obtain too much power.”

Years later, Vernon Jordan, head of the Urban League, supported JFK’s vision and helped defeat a similar Republican attempt in Congress to marginalize black voters: “Take away the Electoral College and the importance of being black melts away. Blacks, instead of being crucial to victory in major states, simply become 10% of the electorate, with reduced impact.”

The latest assault upon the institution comes in the form of the seductively sounding National Popular Vote Interstate Compact (NPVIC). Fifteen states have already joined the group, and Colorado became the first state to send the measure to voters. Financed by powerful interests in California and Florida, this ‘compact’ attempts to create a faction of states that oblige its signatory legislatures to cast its electoral votes for the presidential candidate who received the most popular votes in the nation — even in defiance of the will of the people within their own state.

This scheme cynically plays upon an all too common misconception that voters cast their vote for a presidential candidate. Of course, they do no such thing. Rather, they vote only for electors, who may or may not cast their electoral vote for the voter’s preferred presidential candidate, depending on each state’s laws.

This raises the question of how any ephemeral entity — public or private — would translate votes for electors into popular votes for a particular presidential candidate. When national popular vote advocates are asked how, the answers fall into one of the following four categories: 1) Don’t ask, we have no idea; 2) Litigation; 3) Let the newspapers decide; or 4) Disenfranchise all the millions of voters who cast votes for unpledged or faithless electors in states which present voters with slates of unpledged electors. Unfortunately, none of these responses inspires confidence in how the Compact would actually work in a real election.

Were advocates of the national popular vote serious about applying its “Every Vote Equal” mantra, they would focus first on the task of abolishing the U.S. Senate in which legislation affecting every American is passed every year. After all, the argument goes, it is not democratic that citizens of Wyoming have legislative weight in the Senate many times that of citizens of California.

This is why partisans understand that abolishing the U.S. Senate would be the first and necessary step to abolishing the Electoral College. It is for this reason that the Green Party in 2000 advocated abolishing the Senate as such a first step, and many in the Democratic Party have echoed such sentiments. Others have stopped short of advocating abolishing the Senate, but instead have advocated that it be reformed and based on population — so that California would get 55 Senators, and Wyoming would be lucky to get one.

Such abolition of the Senate could indeed take place if all states agreed, but it would be putting the cart before the horse to abolish the Electoral College before abolishing the Senate.

Robert Hardaway is a professor of law at the University of Denver and author of “The Electoral College and the Constitution: The Case for Preserving Federalism.” A version of this op-ed originally appeared in the Denver Post.

Comments

comments

Comments are closed.