The (Electoral) College Will Remain in Session

Dr. Malcolm Cross

Last week I discussed why the Electoral College will not be abolished, despite the growing demand among Democrats for its demise:  Enough states are overrepresented in the Electoral College to block the passing of the constitutional amendment required to eliminate it.  

But there are other means which don’t require amending the Constitution to be adopted and, if implemented, could conceivably make presidential elections more democratic by increasing the probability that the winner of the electoral vote is also the winner of the popular vote.  We’ll look at two of them and explain why they probably won’t be adopted either, and why they might not work even if they were.

One proposal is to choose presidential electors and set the electoral vote by congressional district, as is currently done in Maine and Nebraska.  In each of these states a presidential candidate gets one vote for each district he or she carries, plus two additional votes for carrying the state.  For example, in 2016, Donald Trump carried one of Maine’s two congressional districts, while Hillary Clinton carried the other district and won a statewide majority of the vote as well.  Therefore Trump won one electoral vote to Clinton’s three.  In Nebraska, Trump won the majority of the vote in each of the state’s three congressional district, meaning he won a majority of the statewide vote, yielding him all five of the state’s electoral vote.

But it’s unlikely that this system will be adopted any time soon by any of the other forty-eight states, which all use the winner-take-all method of awarding the electoral vote.  In Texas, for example, Donald Trump won about 52% of the popular vote, yielding him all 38 of the state’s electoral vote.  Texas’s current House delegation includes 23 Republicans and 13 Democrats.  If each district represented by a Democrat were to support the Democratic presidential nominee, that nominee could win 13 electoral votes, leaving the Republican presidential nominee with only 25 electoral votes, rather than the 38 votes he might win under the winner-take-all system.  It’s safe to assume that the Republican-dominated Texas legislature is no more willing to abandon winner-take-all, thereby giving the Democrats the chance to win more electoral votes, than California’s Democratic legislature would abandon winner-take-all to give the Republicans a chance of winning electoral votes in this most reliable of blue states (California sends 7 Republicans to the House, along with 46 Democrats, and 2 Democrats to the Senate).

Moreover, even if this system were to be adopted, it’s not guaranteed to work as intended.  A presidential nominee who carried a larger number of Congressional districts by smaller margins could still defeat a nominee who won fewer districts by greater margins, as did Trump in 2016.

Currently Democrats are advocating that states adopt the National Popular Vote bill, which would commit each adopting state to award its electoral votes to whomever won the national popular vote, regardless of who won the state popular vote.  The requirement would go into effect when the combined electoral vote of the adopting states reached or exceeded 270—the minimum majority of the electoral vote required to officially choose the president.  Should the combined electoral vote be at least 270, and should all states adopting the National Popular Vote bill honor its terms, then the winner of the popular vote would be guaranteed the presidency.

But the likelihood of enough states adopting the National Popular Vote bill any time soon is small.  To date, it’s been adopted by states whose total electoral vote is only 186.  Most are predictably blue, reflecting the Democrats’ current antipathy towards the Electoral College.  Most of the holdout states, including Texas, are predictably red.  

And could the states’ actually be held to the terms of the National Popular Vote bill?  Would they want to be held to those terms?  Suppose, for example, that supporters of the National Popular Vote bill were somehow able to win its adoption by enough holdout states to go into effect for the 2020 election.  Suppose President Trump were to win the 2020 popular vote.  Would deep blue states such as California, which Trump cannot possibly otherwise carry, actually consent to award this reddest of Presidents their electoral votes?

Given the improbability of the adoption of the National Popular Vote bill, and the possibility of problems in its implementation should it be adopted anyway, the best advice that can be given to the parties and their presidential nominees is to improve their strategies and their brands.  The fact that the Democrats could win the popular vote while losing the electoral vote in 2016 reflects the inept strategy of the Clinton campaign, which failed to focus enough on battleground, or purple, states, while President Trump understood that to campaign in such states as Wisconsin, Michigan, Ohio, and Pennsylvania—all of which he carried—was the key to victory.  

But the fact that the Republican presidential nominee has won the popular vote in only one out of the last seven presidential elections shows its brand is in great need of improvement.  The Republicans simply can’t afford to rely on the historical quirks of the Electoral College to guarantee it the presidency forever.  True, the Republicans won each of the four elections in which one candidate won the popular vote and the other the electoral vote.  But in 44 of the last 48 presidential elections, the winner of the popular vote also won the electoral vote, and the White House as well.  As long as the GOP can’t win the popular vote, its long run chances for retaining the presidency are small.


Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

3 Comments

  1. The National Popular Vote bill mandates: “Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.”

    This six-month “blackout” period includes six important events relating to presidential elections, namely the
    ● national nominating conventions,
    ● fall general election campaign period,
    ● Election Day on the Tuesday after the first Monday in November,
    ● meeting of the Electoral College on the first Monday after the second Wednesday in December,
    ● counting of the electoral votes by Congress on January 6, and
    ● scheduled inauguration of the President and Vice President for the new term on January 20.

    Any attempt by a state to pull out of the compact in violation of its terms would violate the Impairments Clause of the U.S. Constitution and would be void. Such an attempt would also violate existing federal law. Compliance would be enforced by Federal court action

    The National Popular Vote compact is, first of all, a state law. It is a state law that would govern the manner of choosing presidential electors. A Secretary of State may not ignore or override the National Popular Vote law any more than he or she may ignore or override the winner-take-all method that is currently the law in 48 states.

    There has never been a court decision allowing a state to withdraw from an interstate compact without following the procedure for withdrawal specified by the compact. Indeed, courts have consistently rebuffed the occasional (sometimes creative) attempts by states to evade their obligations under interstate compacts.

    In 1976, the U.S. District Court for the District of Maryland stated in Hellmuth and Associates v. Washington Metropolitan Area Transit Authority:

    “When enacted, a compact constitutes not only law, but a contract which may not be amended, modified, or otherwise altered without the consent of all parties.”

    In 1999, the Commonwealth Court of Pennsylvania stated in Aveline v. Pennsylvania Board of Probation and Parole:
    “A compact takes precedence over the subsequent statutes of signatory states and, as such, a state may not unilaterally nullify, revoke, or amend one of its compacts if the compact does not so provide.”

    In 1952, the U.S. Supreme Court very succinctly addressed the issue in Petty v. Tennessee-Missouri Bridge Commission:
    “A compact is, after all, a contract.”

    An interstate compact is not a mere “handshake” agreement. If a state wants to rely on the goodwill and graciousness of other states to follow certain policies, it can simply enact its own state law and hope that other states decide to act in an identical manner. If a state wants a legally binding and enforceable mechanism by which it agrees to undertake certain specified actions only if other states agree to take other specified actions, it enters into an interstate compact.

    Interstate compacts are supported by over two centuries of settled law guaranteeing enforceability. Interstate compacts exist because the states are sovereign. If there were no Compacts Clause in the U.S. Constitution, a state would have no way to enter into a legally binding contract with another state. The Compacts Clause, supported by the Impairments Clause, provides a way for a state to enter into a contract with other states and be assured of the enforceability of the obligations undertaken by its sister states. The enforceability of interstate compacts under the Impairments Clause is precisely the reason why sovereign states enter into interstate compacts. Without the Compacts Clause and the Impairments Clause, any contractual agreement among the states would be, in fact, no more than a handshake.

  2. The Clinton campaign polled, advertised, organized and cared about the voter concerns in the dozen battleground states that included Wisconsin, Michigan, Ohio, and Pennsylvania.

    Candidates hae no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they were safely ahead or hopelessly behind.

    With the end of the primaries, without the National Popular Vote bill in effect, the political relevance of 70% of all Americans was finished for the presidential election.

    In the 2016 general election campaign
    Over half (57%) of the campaign events were held in just 4 states (Florida, North Carolina, Pennsylvania, and Ohio).

    Virtually all (94%) of the campaign events were in just 12 states (containing only 30% of the country’s population).

  3. The National Popular Vote bill was approved in 2016 by a unanimous bipartisan House committee vote in both Georgia (16 electoral votes) and Missouri (10).

    Since 2006, the bill has passed 37 state legislative chambers in 23 rural, small, medium, large, Democratic, Republican and purple states with 261 electoral votes, including one house in Arizona (11), Arkansas (6), Maine (4), Michigan (16), Nevada (6), North Carolina (15), and Oklahoma (7), and both houses in New Mexico (5).
    The bill has been enacted by 14 small, medium, and large jurisdictions with 184 electoral votes – 68% of the way to guaranteeing the majority of Electoral College votes and the presidency to the candidate with the most national popular votes.

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