The Plan to Circumvent the Presidential Election Process

by Robert Greenslade

Several years ago, a plan was hatched to circumvent the electoral system designed by the Founders for electing the President and Vice President of these United States.  The plan, if adopted, will infuse a national popular vote into the system without amending the Constitution.  This article will examine the electoral system and the plan to circumvent it.

The Federal Convention

During the debates in the Federal [Constitutional] Convention of 1787, James Wilson, a delegate from Pennsylvania, said in reference to the manner in which the executive (president) was to be selected:

“This subject has greatly divided the House, and will also divide the people out of doors.  It is in truth the most difficult of all on which we have had to decide.”

Adoption of the electoral process came late in the Convention, which had previously adopted, on four occasions, provisions for election of the executive by Congress and had twice defeated proposals for direct election by the people.

Selection of the executive by Congress was rejected because it was feared there would be collusion between a presidential candidate and Congress.  Elbridge Gerry, a delegate to the Convention from Massachusetts expressed this objection as follows:

“There would be a constant intrigue kept up for the appointment.  The Legislature & the candidates would bargain and play into one another’s hands, votes would be given by the former under promises or expectations from the latter, of recompensing them by services to members of the Legislature or to their friends.”

Direct election by the people was rejected for two reasons.  First, was the belief that the people were uninformed of the character of the candidates and liable to deception.  John Mercer of Maryland said:

“The Constitution is objectionable in many points, but in none more than the present.  The people can not know & judge of the characters of Candidates.  The worse possible choice will be made.”

The other reason the Founders rejected direct election by the people was the fear that the larger States would control the presidency.  Connecticut delegate Oliver Ellsworth stated:

“The objection drawn from the different sizes of the States to be unanswerable.  The Citizens of the largest States would invariably prefer the Candidate within the State; and the largest States would invariably have the man.”

As a result of these objections, the Convention adopted an electoral system that interposed a representative called an elector.  The electors were to be men of superior discernment, virtue and information who would select the president and vice president according to their own will and without reference to the immediate wishes of the people.  Their only obligation was to select, in their judgment, the most qualified candidates.

The Electoral College System

The electoral process is set forth in Article II, Section I, Clauses 2-4 of the Constitution for the United States of America.  Clause 3 has been superseded by the 12th Amendment as ratified by the several States in 1804.  Provisions of the 12th Amendment have been superseded by the 20th Amendment as ratified by the States in 1933.  (See also Section 3 of the 14th Amendment.)

When the American people cast their vote in a presidential election they are actually voting for individual within their State called an elector.  The electors are representatives just like the members of Congress.  Unlike members of Congress who are elected for a specific term of years and cast numerous votes while in office, electors perform a single function once every four years.  They are entrusted with the responsibility of voting for the President and Vice President of these United States.

The legislature of each State is authorized by Article II, Section I, Clause 2 of the Constitution to prescribe the mode for appointing its electors.

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

For several years after the adoption of the Constitution the States simply appointed their electors.  The people did not participate in the presidential election process.  The legislatures have abandoned this practice and adopted a democratic popular vote within each State and the District of Columbia as the method for determining which party’s slate of electors will be elected to vote for their State.  The District was made part of the electoral process in 1961 with the adoption of the 23rd Amendment.

The electors chosen to vote for each State are those of the political party that wins a plurality of the popular vote within the State.  For example.  If an Independent Party candidate wins the popular vote in California by one vote, then that party’s slate of electors is elected to vote for the State of California.  This is called the winner take all rule.  Since there is no constitutional provision mandating a winner take all rule, the method of allocating electoral votes is left to the discretion of each State.

Maine and Nebraska do not use the winner take all method.  In these States, two electors are chosen at-large by the statewide popular vote and the rest are selected by the popular vote in each congressional district.  This allows for a split slate of electors to be chosen in those two States.

The formula for determining the number of electors for each State is set forth in Article II, Clause 2 (See above).  Every State receives one elector for each congressional Representative and one elector for each of its two Senators.  If a State has (4) Representatives and (2) Senators, it would have (6) electoral votes.  Since each State is guaranteed at least one Representative and two Senators, the minimum number of electors for any State is 3.

Note: The 23rd Amendment restricts the District of Columbia to a number of electors equal to the least populous State in the Union.

The total number of electoral votes for the United States and the District of Columbia is 538 (435 Representatives―100 Senators―3 District of Columbia).  Based on 538 potential votes, a candidate would need a minimum of 270 electoral votes to win the presidency.  Under this system, a candidate can constitutionally win the election with a decided majority of the people against him.  It is also possible for a candidate to win the election with a decided majority of the States against him.  Eleven States have a total of 271 electoral votes, 1 vote more than the minimum number necessary to win the election.  The other 39 States and the District of Columbia have 267 votes, 3 votes short of the minimum number.

Under the electoral system, the so-called national popular vote is a fictional number that does not have any bearing on the outcome of an election.  The elections in each State and the District of Columbia are the only votes that count because electors are elected on the basis of a state-by-state vote—not a national vote.  Under our federal system of government, the democratic process was designed to take place in the States.

The Electoral College is a Key Component of Our Federal System of Government and a Check on the Abuse of Power

In the North Carolina Convention debating ratification of the proposed constitution, William Davie stated that the States control the election of the president and this would be a check on the federal government:

“Is not this government a nerveless mass, a dead carcass, without the executive power?  Let your representatives be the most vicious demons that ever existed; let them plot against the liberties of America; let them conspire against its happiness,—all their machinations will not prevail if not put in execution.  By whom are their laws and projects to be executed?  By the President.  How is he created?  By electors appointed by the people under the direction of the legislature—by a union of the interest of the people and the state governments.  The state governments can put a veto, at any time, on the general government, by ceasing to continue the executive power.”

James Wilson made the following remarks in the Pennsylvania Convention:

“The President of the United States is to be chosen by electors appointed in the different states, in such manner as the legislature shall direct.  Unless there be legislatures to appoint electors, the President cannot be chosen; the idea, therefore, of the existing government of the states, is pre-supposed in the very mode of constituting the legislative and the executive departments of the general government.  The same principle will apply to the judicial department.  The judges are to be nominated by the President, and appointed by him, with the advice and consent of the Senate.  This shows that the judges cannot exist without the President….”

The importance of the Electoral College in our federal system of government was made crystal clear by Abel Upshur in his 1868 book, The Federal Government: Its True Nature and Character:

“So absolutely is the Federal Government dependent on the States for its existence at all times, that it may be absolutely dissolved, without the least violence, by the simple refusal of a part of the States to act.  If, for example, a few States, having a majority of electoral votes, should refuse to appoint electors of President and Vice-President, there would be no constitutional Executive, and the whole machinery of government would stop.”

The ability of the States to exercise this control over the federal government has been diluted by the 20th Amendment, which grants Congress the power to appoint a president until a selection is made.  However, it is clear that the Founders intended the Electoral College system to be a key component of the federal system of government because the States could use the electoral process to check the abuse of power.

The Plan to Circumvent the Electoral College System

In my opinion, the Electoral College system is under attack by the same progressive mentality that engineered the adoption of the Seventeenth Amendment.  An organization is pushing a plan known as: The National Popular Vote Interstate Compact Plan [http://www.nationalpopularvote.com/].  Using the interstate compact provision of the Constitution (Article I, Section 10, Clause 3), their Plan would award all of a State’s electors to the candidate who won the national popular vote irrespective of whether that candidate was on their ballot or won the State’s popular vote.  For example.  If California adopted the Plan and a candidate won the popular vote in that State by a landslide but lost the national popular vote, California would award all of its electors to the candidate rejected by its voters.

On their web-site, the folks at the National Popular Vote have this to say about the Plan:

“The National Popular Vote bill would guarantee the Presidency to the candidate who receives the most popular votes in all 50 states (and the District of Columbia).”

“The shortcomings of the current system stem from the winner-take-all rule (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in each state).”

“Because of the winner-take-all rule, a candidate can win the Presidency without winning the most popular votes nationwide.”

“Under the National Popular Vote bill, all the electoral votes from the enacting states would be awarded to the presidential candidate who receives the most popular votes in all 50 states (and DC). The bill would take effect only when enacted by states possessing a majority of the electoral votes — that is, enough electoral votes to elect a President (270 of 538). The bill would replace the current state-by-state system of awarding electoral votes with a system guaranteeing the Presidency to the candidate who wins the most popular votes in all 50 states (and DC).”

The winner take all rule is not mentioned in the Constitution so the statement that it is one of the “shortcomings of the current system” is a bit misleading because it gives the casual reader the opposite impression.  You must go to other documents on their site for clarification.

Some of the proposals to amend the Constitution and replace the Electoral College with a direct popular election have a provision that requires the winning candidate to receive 40 or 50 percent of the total vote.  If no candidate meets the 40 or 50 percent threshold, there is a run-off election between the top 2 candidates.

Under the Interstate Compact Plan, a candidate simply needs to win a majority of the total votes cast.  There is no run-off provision.  Under this Plan, there is a chance that a candidate could win with as little as 15 or 20 percent of the total vote.

At the present time, 6 States possessing 73 electoral votes have enacted the plan into law.  This represents 27% of the 270 electoral votes needed to activate the plan.

The Attack on the Electoral College System is Based on Deception and Disinformation

The National Popular Vote claims the Electoral College system is defective and contrary to democracy because a candidate could win the mythical national popular vote but lose the electoral vote.  That is like saying the baseball team that scored more runs in the World Series should be declared the winner even though the other team won the 4 games necessary to win the 7 games series.  This assertion is simply a straw man argument because the Constitution did not establish a national system of government or a national democracy.

This plan is just another attack on the federal system of government established by the Constitution in the name of a system of government that was rejected by the individuals who wrote and adopted the Constitution.

The Constitution did not Establish a Democracy

The National Popular Vote is built on a false premise because the Constitution did not establish a democracy; it established a republican or representative form of government.  Under this system of government, the people do not exercise the powers of government directly.  They exercise it through representatives.  The presidential election process is a component of the representative system of government established by the Constitution.  In fact, the electoral system is a representative institution just like the House of Representatives and United States Senate.  Under our representative form of government, the people have no direct voice on any law proposed or passed by either branch of Congress.  In Congress, the vote rests with the representative irrespective of the national will of the American people.  The Electoral College was structured to be an extension of this principle.  Electors cast their votes for the president and vice president in the same manner as members of Congress cast their votes.  The presidential elections in each State and the District of Columbia are a vote to determine which representatives (electors) will vote for the president and vice president.  In Congress the final vote on any pending legislation rests with the representatives—not the people.  In a similar manner, the final vote for the president and vice president, as intended by the Founders, rests with the electors.

Since there are 51 separate elections in the several States and the District of Columbia, as opposed to a single national election, a candidate can win the so-called national popular vote but lose the electoral vote.  According to the National Popular Vote, this is unfair because it could thwart the will of the majority. Thus, their underlying criticism is―the national majority does not choose the president and this is contrary to democracy.

This criticism is misleading because they omitted two very important facts concerning the system of government established by the Constitution.  First, the Constitution did not consolidate the several States or their people into a single nation.  During the debates in the Federal Convention the delegates rejected the proposals to establish a national government.  Instead, they elected to retain the federal system of government that had been established by the Articles of Confederation.  Thus, the Constitution maintained the limited union between the several States; it did not dissolve this union and establish a single nation of individuals.  Second, the Founders viewed democracy, government exercised directly by the people, as one of the worst systems of government ever devised because it allows the majority to use the political process to infringe on the life, liberty and property of the minority.  As a result, they designed a republican form of government to shield the people from the adverse effects of democracy.

During the debates in the Federal Convention, Governor Edmund Randolph of Virginia introduced a resolution proposing that “a Republican Government…ought to be guarantied by the United States to each state.”  During the debates that followed, Alexander Hamilton stated:

“We are now forming a republican government.  Real liberty is neither found in despotism or the extremes of democracy, but in moderate governments.”

The word republican, as used above and in the writings of the Founders is synonymous with the word representative.

Luther Martin, Attorney General of Maryland, made the following observation during the debates in the Federal Convention:

“This general government, I believe, is first upon earth which gives checks against democracies….”

One of those checks was the Electoral College system, which interposed a representative into the election process called an elector.  The electors, as stated previously, are representatives just like members of Congress.

Under the federal system of government established by the Constitution, there are no national elections in which a majority of the American people vote for members of Congress.  Instead, there are separate democratic elections in each of the several States.  The Electoral College system is a mirror image of this process because the United States is a union of sovereign States; it is not a nation of individuals, as comprising a single nation.  The National Popular Vote wants to shatter this mirror and have the president elected under a national format while members of Congress will continue to be elected under a federal format.

Critics of the Electoral College always fail to acknowledge that the system balances power between the legislative and executive branches of the federal government.  It does that by giving each of the several States the same percentage of power in the selection of the president as it has in Congress.  For example, if a State has 8 representatives and 2 senators, it has 10 total votes in Congress.  This State would also have 10 electoral votes in a presidential election.

Contrary to the assertions made by the National Popular Vote, the Electoral College is rooted in representative government and the federal system of government established by the Constitution—not national democracy.  Their plan would infuse national democracy into a federal system of government.  It would also interject national democracy into a representative form of government.  This would turn the Constitution on its head.  The National Popular Vote has either lost sight of these two constitutional principles or is intentionally omitting them from the debate in an effort to effect a radical change in the system of government established by the Founders.

The fundamental principle of a democracy is there is nothing to restrain the will, or the votes of the majority except the majority itself.  An example of this principle is two wolves and a sheep voting on what’s for dinner.  The federal nature of the Electoral College system restrains the adverse effects of national democracy because 51 separate democratic elections prevents a presidential candidate from pandering to, or inciting, a majority to the American people as a ploy to win the presidency.

Note: It may come as a shock to some of the folks at The National Popular Vote but the Constitution was not ratified by a national popular vote and cannot be amended by a national popular vote.  The Constitution was ratified and can only be amended on a State-by-State vote.  Since the method for electing the president is a mirror image of ratification and amendment process, the attempt to label the Electoral College system as a defective process is disingenuous—to say the least.

Constitutional Problems with the Interstate Compact Plan

The National Popular Vote claims their Interstate Compact Plan is constitutional.  I disagree and can see several legal/constitutional problems with their plan.

First—

Interstate compacts, as stated in the book published by the National Popular Vote, “are specifically authorized by the U.S. Constitution as a means by which the states may act in concert to address a problem.”

When a candidate wins the Electoral College vote and a majority of the so-called national popular vote, the system is functioning as designed.  By the same token, when a candidate wins the Electoral College vote but does not receive a majority of the so-called national popular vote, the system is functioning as designed.  Thus, there is no real problem to address through the interstate compact clause relative to the Electoral College.

The folks at the National Popular Vote are attempting to pervert the purpose of this Clause and use it to make the election of a president contingent upon a national popular vote.  In other words, they are attempting to use a clause of the Constitution to institute a method of election rejected by the Founders without resorting to the amendment process.

Second—

Article I, Section 10, Clause 3 of the Constitution states:

“No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State….”

The National Popular Vote claims congressional consent is not required for their Interstate Compact Plan.  Because this would certainly be challenged in court, they are working to get legislation introduced in Congress giving congressional consent to the Plan.

This could be a lose lose for their Plan.  If the Plan goes forward without consent, a court could invalidate it.  If the Plan cannot pass both Houses of Congress or is defeated by Congress, then a court could view a rejection by Congress as proof the Plan is not within the scope of the interstate compact provision.

In spite of their assertions, I believe congressional consent would be required assuming it can pass the proper subject test for an interstate compact.

Third—

Article IV, Section 4 of the Constitution states:

“The United States shall guarantee to every State in this Union a Republican Form of Government….”

In other words, the States collectively shall guarantee to the States individually a representative form of government.  The electors of a State are elected representatives just like the legislature of that State.  Under the National Popular Vote, the representatives in the legislature are making the election of the representatives entrusted with the constitutional duty of voting for their State dependent upon the vote of the people in the other 49 States and the District of Columbia.  Thus, if the people of a State voted for the electors of candidate A but candidate B won the national popular vote, the people of that State would be disenfranchised because their vote for elected representatives would be negated through a law passed by other elected representatives.  Thus, their Plan is inconsistent with the representative form of government clause of the Constitution.

In my opinion, this is the key to defeating their use of the interstate compact provision.  One provision of the Constitution cannot be used to negate another provision.

Conclusion

In order to preserve the federal nature of the presidential election process, it may be necessary to amend the Constitution and mandate the winner take all rule in every State and the District of Columbia.  Contrary to the assertions by the National Popular Vote, the Constitution established a federal system of government—not a national one.  An amendment mandating the winner take all rule would immediately nullify the National Popular Vote Plan.

If the National Popular Vote is implemented and direct popular election is infused into the system, the process will degenerate into pure democracy with the people throwing their support to whichever candidate promised to give them the most government largess.  This would be democracy at its worst.

Cicero, an intellectual of ancient Rome, wrote that the man usually chosen as the leader in a democracy is “[s]omeone bold and unscrupulous…who curries favor with the people by giving them other men’s property.”

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Under the National Popular Vote, without the checks and balances of the Electoral College system, it would be much easier for a president to become the type of leader Cicero warned against.

A 1994 article in the Congressional Quarterly stated:

“The Constitution did not provide authority for political parties or prohibitions against them.  Historians have pointed out that most of the Framers had only a dim understanding of the function of political parties and thus were ambivalent, if not hostile, toward parties when they laid down the foundation of the new government.

The Founders set up what they regarded as safeguards against excesses of party activity by providing an elaborate governmental system of checks and balances.  The prevailing attitude of the convention was summed up by James Madison, who wrote in The Federalist that the ‘great object’ of the new government was ‘to secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and form of popular government.’

Madison’s greatest fear was that a party would become a tyrannical majority.  This could be avoided, he believed, through the republican form of government that the proponents of the Constitution advocated.  In The Federalist Madison wrote, ‘Among the numerous advantages promised by a well-constructed Union, none deserved to be more accurately developed than the tendency to break and control the violence of (party) faction.  A republic, as understood by Madison, was an elected body of wise, patriotic citizens, while a democracy was equated with mob rule.  Madison dismissed the democratic form of government as a spectacle of ‘turbulence and contention.’”

This is exactly what the Founders were trying to prevent by incorporating the Electoral College system into the Constitution as one of the safeguards to protect the people of these United States from the adverse effects of national democracy.

Bob Greenslade [send him email] has been writing for www.thepriceofliberty.org since 2003.

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