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Protect the Electoral College and Federalism

By Sean Parnell
Published on Monday, April 02, 2012
SPN NEWS MARCH/APRIL 2012

For more than 200 years, the Electoral College has helped protect the vital role that states play in our federal republic, a role the Founding Fathers established. This system has served the country well. It pushes candidates to appeal to different parts of the country and to reach beyond their political base, it minimizes the ability of fraudulent votes to influence the election and it allows for a state's electors to represent the interests of their own state.

Recently this carefully crafted system has been under assault by a group called National Popular Vote, which seeks to undermine the Electoral College and replace it with direct election of the U.S. president. Established through an interstate compact, participating states would assign their electors to the candidate who wins the most votes nationally.

Currently eight states (California, Illinois, Hawaii, Maryland, Massachusetts, New Jersey, Vermont, and Washington) plus the District of Columbia have signed on, representing 132 electoral votes. Once the compact includes states representing 270 total electors, the Electoral College will become a thing of the past.

Beyond repudiating the Founding Father's vision of states as co-equal sovereigns in a federal republic, there are other serious flaws in the proposed compact, flaws that threaten to produce turmoil.

One significant problem is that the compact may not be constitutional. The U.S. Constitution requires that Congress approve interstate compacts - but NPV does not intend to seek Congress' approval. Additional questions of constitutionality include whether an interstate compact can effectively nullify part of the Constitution, and whether a state's power to choose electors includes allowing persons outside the state to select electors.

These questions are virtually guaranteed to spark litigation and uncertainty about how the president is elected, and this litigation will occur in multiple states before both state and federal judges. We can expect that courts will reach different decisions in different states and at different times, making it likely that presidential candidates themselves will not know heading into election day what rules are in effect.

An even more nightmarish scenario would be a close national vote, even if the Electoral College winner might otherwise be clear. The 1960, 1968 and 2000 elections all had national vote-total differences of less than 1 percent between the top contenders, which would be close enough in many states to trigger automatic recounts. But the compact does not provide for recounts.

Advocates of eliminating the Electoral College respond that state laws on recounts will be followed. But there is no obvious answer to what triggers recounts - in a close national vote, do states that had large in-state margins have to recount? Nobody knows.

States may come to different conclusions about whether a recount is required, leading to a situation where some are conducting recounts and others are not. The result will be discord and heightened partisan anger, especially where the recount is expected to favor one candidate over another.

Another danger is that states could potentially withdraw from the compact late in the election cycle, perhaps even after election day, if doing so would benefit the candidate favored by a state's voters. This situation would also create chaos in the election process.

The group pushing direct election of the president is well funded, and has succeeded in recruiting a few prominent conservatives to their cause. However, several groups have stepped up to oppose them, including State Policy Network, the Save Our States Project at the Freedom Foundation, the State Government Leadership Foundation and the Heritage Foundation.

Americans who care about the original intent of the Founding Fathers, and who don't want to see presidential elections degenerate into disorder and uncertainty, should keep an eye out in their own states for this dangerous compact. Should the NPV forces show up, reach out to the aforementioned organizations for help and contact your state legislators.

Sean Parnell is president of Impact Policy Management and serves as legislative outreach director of the Save Our States project at the Freedom Foundation. Write him at sean@impactpolicymanagement.com.

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