Electoral College Reform to Preserve States' Rights

By Bruce Walker

Pundits and politicians are unhappy about how we elect the president.  State legislatures, which have the constitutional power to determine how their states' presidential electors are chosen, are currently looking at two different approaches to correcting perceived problems in the election process.

The National Popular Vote Compact is a state law which would require the presidential electors of each state that pass it to award all of the state's electoral votes to that candidate who wins the national popular vote.  The compact would go into effect when states with a majority of the Electoral College all pass this compact law.

The left wants a national democracy rather than a republic.  It is pushing this "reform" hard.  This plan is a bad idea.  Consider Article III of the bill, which provides that "[t]he chief election official of each state shall designate the presidential slate with the largest national popular vote as the 'national popular vote winner.'"  The "chief election official" in most states is the secretary of state.  George Soros's "Secretary of State Project" was intended to plant "progressiveDemocrats" into this vote-certifying office. 

This National Popular Vote Compact is supposed to solve two supposed problems.  Voters in small states have -- because the electoral votes are awarded according not only to House members, but also to Senate members -- votes that count more than voters in larger states.  This is not a "problem," however, but rather an important safeguard granted in the Constitution to protect smaller states.

The National Popular Vote Compact is also supposed to encourage higher voter participation.  Forty-eight states have a "winner take all" system of choosing presidential electors, and most of those states are not really in play, presumably discouraging voters from participating in presidential elections.  But examination of the voter turnout rates for president in 2008 shows that voters were more likely than the national average to vote in some solid red states like Alaska, Idaho, North Dakota, and Wyoming, or solid blue states like Connecticut, Maryland, New Jersey, and Washington.  

The other electoral reform, the Nebraska-Maine Plan, already in operation in those two states, awards an electoral vote for each House district, based on the popular vote there, and two electoral votes for the candidate who carries the state.  Pennsylvania, where Republicans control state government, may adopt this plan.  If it does, then the Republican nominee in 2012, who normally will get no electoral votes from the Keystone State, should win 12 of the state's electoral votes, reflecting the 12 House districts in the state which are Republican.  Republicans control state government in Michigan and Wisconsin, states reliably Democrat in the winner-take-all system.  If those states followed suit, giving Republicans 9 electoral votes in Michigan and 5 in Wisconsin, then 27 electoral votes could easily swing a close election. 

Democrats cannot retaliate.  They control only three big states -- California, Illinois, and Massachusetts -- and passing the Nebraska-Maine Plan in those states would actually cost Democrats electoral votes (all those votes are automatically won by the Democrat nominee).  Leftists, predictably, have come unhinged.  (N.B.: anytime that the New York Times warns about something that could backfire on conservatives, charge ahead at full gallop.)

All this aside, though, the National Popular Vote Compact and the Nebraska-Maine Plan both miss the real problem in presidential elections: states' rights.  The Constitution was intended to create a mechanism to balance power within the federal government but, more importantly, to protect states against the federal government.  Before the 16^th Amendment, senators were chosen by state legislatures, and the federal government faced a strong check against bullying states.  The Constitution also grants state legislatures the power to choose presidential electors.

Presidential electors, until 1824, were chosen by state legislatures; there was no "popular vote" at all, and as late as 1876, Colorado's state legislature chose its presidential electors.  State legislatures can reclaim that prerogative today.  If state legislatures did that, then presidential candidates would have to answer to state governments, not voters in popularity contests.  The presidency could be transformed into an instrument for guarding the rights of our sovereign states.

States' rights is perceived as an ideological issue, but that need not be the case.  Freedom of the press has broad support crossing ideological lines because all who publish need that freedom and so support the First Amendment.  States' rights has the same quality.  Texans and Utahans, if they want to be left alone by Washington, grant Massachusetts and Hawaii the same liberty from Washingtonian overlords. 

Returning elections to 1820 would also make presidential campaigns very different from the gaudy, expensive, and long parade we experience today.  Serious candidates could address joint sessions of state legislatures and have a serious, open, unrehearsed discussion with state legislators.

The best protection of states' rights is a commonly perceived and overarching interest in keeping the federal government from becoming more an imperial capital than the seat of a federal republic.  If candidates who wish to be president had to first convince state legislators that the federal government would honor the rights of the states, then the vital devolution of federal power back to the states could begin.  That is real Electoral College reform.