While the British media, in thrall to groupthink, are fixated on the labyrinthine and increasingly farcical Mueller investigation, they are largely ignoring an attempt to subvert the United States Constitution and remodel the election of the next American president without going through the challenging process of passing a constitutional amendment. If this movement were to succeed it would be as much a coup d’etat as if Pentagon generals were to park their tanks on the White House lawn.
Earlier this month Connecticut became the 11th US state, plus the District of Columbia, whose legislature has voted to join the National Popular Vote Compact (NPVC). This alliance is designed to abolish the Electoral College by which American presidents are formally elected without undergoing the legal procedure of enacting a Constitutional Amendment. It is thus a ploy by enemies of the Electoral College to bypass the processes prescribed by the Constitution.
The NPVC is an agreement between the legislatures of certain states that in a presidential election they will allocate their Electoral College electors to the candidate who has secured the largest popular vote, disregarding how each individual state’s voters may have cast their suffrage – effectively disfranchising them. The plan would come into operation as soon as enough states have joined the NPVC for it to command 270 Electoral College votes, the total required for a majority. Connecticut’s adherence to the Compact means it now controls 172 electors and only needs a further 98 to revolutionize the constitution.
Totemically, Connecticut is the Constitution State whose founders championed constitutional checks such as the Electoral College to prevent larger states excessively dominating the Union. There have been frequent criticisms of the Electoral College in the past: of the 11,000 constitutional amendments proposed in Congress throughout its history more than 1,000 related to the Electoral College. That it is still in existence testifies to the durability of the Founding Fathers’ constitutional settlement and the absence of any real appetite for disrupting it.
To abolish the Electoral College via the recognized constitutional route would require a Constitutional Amendment to be passed by a two-thirds majority in both houses of Congress, plus ratification by three-quarters of the state legislatures. Such a measure would be vulnerable to innumerable legal challenges. Nor does the current climate of American politics seem conducive to non-partisan, across–the-aisle cooperation.
That is why the creators of the NPVC are attempting to implement a revolutionary change at the very heart of the American Constitution by the back door. Their agreement commits each member state to remain in the Compact for a term of six months from 20 July to 20 January (presidential inauguration day) of the following year.
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If further states were to join the Compact until it eventually had 270 Electoral College votes at its disposal, the mass allocation of those votes to the candidate leading in the popular vote would drown out the voices of voters in individual states, submerged in the raucous bellow of the national suffrage. That is exactly the opposite of how state legislatures are supposed to serve their citizens’ interests.
How far is there a conflict between the Electoral College and the national popular vote? Since the founding of the United States, presidential candidates who won the national popular vote have been defeated in the Electoral College on only five occasions: in 1824, 1876, 1888, 2000 and 2016. The Electoral College became a focus of controversy in 2000 after Al Gore won 543,000 more popular votes than George W Bush, but lost in the Electoral College by 271 to 266.
It was after that result that the embryonic National Popular Vote movement came into existence. Then, in 2016, Hillary Clinton received 2.8 million more popular votes than Donald Trump, but lost heavily to him in the Electoral College where Trump commanded 306 votes – 36 more than he needed for victory. It is difficult to believe that the anti-Trump hysteria that has infected America since 2016 is unconnected with the progress of the NPVC.
All 11 states that have joined the Compact are heavily Democratic; no Republican states have so far adhered to it. Yet research has shown that in 2008 and 2012 the Electoral College worked to the advantage of the Democrats. Those who point to Hillary Clinton’s 2.8 million popular vote majority over Trump ignore the fact that all of that total, and more, came from the state of California.
That vindicates the Founding Fathers’ well-founded fears that a directly elected presidency would hand a monopoly of political influence to large, heavily populated states at the expense of the smaller. Under a system of popular vote election a Clinton-style candidate with massive funding could focus on large blue states, piling up votes there while, literally, flying over the flyover states whose voices are only heard because they have some clout in the Electoral College.
Whatever the arguments for and against the Electoral College, one principle is axiomatic. If it is to be abolished, that must be done through the correct constitutional process, however demanding, not by some political sleight-of-hand involving state legislators selling out the interests of their citizens. Measured against the impressive canon of constitutional law amassed by the United States since 1776, the NPVC appears little better than a conspiracy by political elites.
The National Popular Vote Compact has been denounced as violating the Compact Clause of Article I, Section 10 of the American Constitution, the Guarantee Clause of Article IV, and the Presidential Elections Clause of Article II. Its critics emphasize that the apparently unlimited freedom awarded to states to choose the manner in which their presidential electors are selected must be viewed within the context of the whole Constitution, whose authors specifically rejected the idea of a direct election for the presidency.
One critic, Professor Norman R Williams, has succinctly identified the single most objectionable feature of the NPVC, namely, that “states lack the power to appoint their presidential electors on the basis of votes of citizens outside the state’s jurisdiction”… Indeed, local legislators would be fulfilling the perverse function of subordinating their own constituents’ wishes to those of voters in California or New York.
With the US Supreme Court now including constitutional originalists Neil Gorsuch and Clarence Thomas it seems unlikely that the National Popular Vote Compact, a classic weasel device deployed by the political elites, will prevail. What is nonetheless concerning is the fact that such a coup attempt has progressed so far as it has without significant resistance.