Politicians in at least twenty States (and the District of Columbia) now seek to nullify the Electoral College. They would like to elect a President directly, by the popular vote. But they know they can’t amend the Constitution directly. So they seek to amend it indirectly. In the process they defy the Constitution and threaten to substitute mob rule for the rule of law.

The National Popular Vote Compact

These activists call their effort the National Popular Vote Compact. They hope to form an interstate compact to supersede the usual method of appointing Presidential Electors. Under its terms, all members of the Compact would appoint members of the Electoral College pledged to vote for the winning ticket in the national popular vote in Presidential elections.

Last week, New York joined New Jersey, Massachusetts, Vermont, Rhode Island, Maryland, Illinois, Washington, California, Hawaii and the District of Columbia by signing this Compact. In a related column, Dick Morris listed ten other States in which one house or the other has passed a Compact bill: Arkansas, Colorado, Connecticut, Delaware, Maine, Michigan, Nevada, New Mexico, North Carolina, and Oregon.

Barack Obama carried every States, plus D.C., that has thus far signed the Compact.

Dick Morris knows what drives the Compact. Democratic Party leaders resent the choice of George W. Bush in the Election of 2000. They now seek to avoid battling it out in the Midwest, and in Florida (the favorite retirement country). Now they’d like to confine their efforts to the Northeast and Mid-Atlantic region and “Left Coast.” The votes of “Megalopolis USA” (from Boston, Mass., to Washington, D.C.), and of Southern California and western Oregon and Washington State, would be a permanent Democratic Party voting majority.

How? And why don’t they do that now? The answer lies in how the Electoral College works.

The Electoral College today

A wooden ballot box, once used in the Northeast in the 1870’s. Photo: The Smithsonian Institution.

Under the Constitution, each State must “appoint, in such manner as the legislatures thereof may direct,” as many Presidential Electors as they have Senators and Representatives in Congress. The Electors meet in their States (or the District of Columbia, as the case may be) and cast one vote each for a candidate for President and Vice-President. They send their votes to Congress, and on the opening day of the next Congress, the Vice-President opens and tallies the ballots.

In fact, the Parties nominate slates of elector-candidates pledged to vote for their “tickets.” Only the names on the tickets appear on ballots; no one knows the Electors’ names except the Division of Elections in each State.

Still, the way the Electoral College works today, the Parties spend little or no time or effort turning out votes in many States. Democrats almost always carry New York, California, Oregon, New Jersey, Connecticut, and many other States; Republicans almost always carry Texas, Alaska, Alabama, and so on. So the Parties concentrate on battleground States. The populations in those States often “turn over,” from people moving in and out. (Almost no person changes his or her vote over a lifetime, and the Parties never count on that.)

The problem for Democrats, according to Morris: their voters do not turn out as Republican voters do. This is especially true in States the Democrats almost always carry. That’s why the election of George W. Bush was the exception to the usual rule: popular vote and electoral vote agree.

How nullifying the Electoral College could change the vote

As Dick Morris explains:

Right now, the biggest cities, the ones most firmly in Democratic control (e.g. Washington DC, New York, Detroit, Chicago, San Francisco, etc.) are all solidly in blue states. Not only does this make it unnecessary to maximize turnouts there, but it also makes it unnecessary to promote double voting, fraudulent voting, and all the other tricks of the trade at which Democrats excel.

But if the popular vote determines who will be the next president, we can bet that the machines will be out in force lining up voters, real and phony, to pad their statistics.

Morris has a point. No State Division of Elections ever reviews its voter rolls to remove from it voters who have moved out-of-State, or died. Whenever they try, some Democratic-aligned plaintiff will sue under the Voting Rights Act or similar Act. So today, Divisions of Elections use an “honor system.” Under it, whoever moves into a new house, and gets a sample ballot addressed to the voter he bought the house from, must send it back to the elections clerk, after marking it: “No such person at this address.” Likewise, when a voter dies, his survivors are supposed to send his sample ballot back: “Addressee deceased; return to sender.”

But as North Carolina recently found, this does not happen. And as this correspondent can attest, New Jersey’s voter rolls often contain the names of moved-out or dead voters. What happens in those voters’ precincts? Simple: anyone can apply to the elections clerk, pretend to be that voter, and get an absentee ballot to mail in. Or if the “machine” is especially brazen, it can recruit someone to impersonate the moved-out or dead voter. Without voter I.D., an impersonator need only carefully copy the signature of the moved-out or dead voter to bring off the impersonation.

Electoral College compact: unconstitutional?

The League of Women Voters keeps a study page on the National Popular Vote Compact, with arguments for and against. (Only the PDF links are good; the HTML links are broken.) The “pro” arguments show only why some might desire to abolish the Electoral College and elect a President by popular vote. The con arguments show the real problem with the National Popular Vote Compact: it will not pass muster with the Constitution.

The Constitution says Congress must consent to any interstate compact. The National Popular Vote Compact is such a compact, like any other.

Furthermore, the Framers designed the Electoral College system to make sure the less-populous States would not have a President simply ignore them. To do this, it necessarily makes these less-populous States more important than their numbers alone would dictate. First, because each State has at least one Representative, the loneliest States already have more representation in the House than numbers alone would warrant. Second, each State gets two more electoral votes, one for each Senator. The Senate was always the great equalizing chamber between States large and small.

Would States not party to the Compact stand for a scheme to make sure they would never again have a voice in choosing a President? Not likely. And the League of Women Voters knows it.

The League ignores one other reason not to elect a President directly. Doing so makes the President the blunt instrument of a mob, not a statesman serving a federation of sovereign States. In the twentieth century, at least two nation-states elected national leaders from mob fervor. The result was the bloodiest conflict the world had then known.

On the other hand, the Election of 1876, ended in disputed appointments to the Electoral College. That dispute did not and could not lend itself to an easy resolution. Instead, Rutherford B. Hayes promised to deal fairly with the contentious issue of his day, namely Southern Reconstruction. And by most accounts, he delivered on that promise.

Barack Obama, in sharp contrast, has lowered the standard of behavior by the victor. “I won! Get over it!” he scornfully said to his opponents more than five years ago. (And he still says it.) Direct popular election will produce more Barack Obamas. One should oppose this “reform” for that reason alone, even if it did not break the Constitution.

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