Countering The National Popular Vote Initiative
October 29, 2012
By Bruce Walker
The left loves faux reforms which leverage more power in its direction, with the National Popular Vote Initiative being a great example. The one-sentence description of this reform is this: "The National Popular Vote bill would guarantee the Presidency to the presidential candidate who receives the most popular votes in all 50 states (and the District of Columbia)."
The mechanism for enacting this reform is an interstate compact via a law requiring that the state's electoral votes go to the candidate who receives the most popular votes in the presidential election, regardless of how the candidate does in the particular state involved. So if, say, Mitt Romney received a majority of the popular vote, then all of California's electoral votes would go to him, even if he lost that state by a landslide. This interstate compact would go into effect only when states with a combined total of 270 electoral votes -- enough to elect the president -- adopted the proposal.
The polls increasingly suggest that Obama could lose the popular vote but win the Electoral College -- and if that happens, conservatives would be asked to line up to support the National Popular Vote Initiative because it would have benefited our candidate. The initiative, however, is a very bad idea. It rests upon a constitutional fiction -- popular vote for president -- and opens the door to more pure democracy and less constitutional republicanism in our nation.
As many people know, we do not cast ballots for president or vice president. We cast, instead, ballots for a slate of presidential electors who have committed to vote for their party's candidate in the Electoral College. Nothing, however, prevents a presidential elector from voting for whomever he wishes when the Electoral College votes, and there have been a few times in modern political history when that has happened.
But the fiction of popular vote runs deeper than casting ballots for presidential electors rather than presidential candidates. State legislatures determine how presidential electors are chosen. Nothing requires these legislatures to have presidential electors chosen by voters at all. In fact, there was no "popular vote" at all in our first nine presidential elections. When, in 1824, four candidates ran for president in which there was a "popular vote," the consequence was a profound headache for the republic.
Andrew Jackson got more of the popular vote than John Quincy Adams, but no candidate received a majority in the Electoral College. Henry Clay, one of the other two candidates, was Speaker of the House, and he swung his support to Adams, who was elected president even though Adams got only 32% of the popular vote.
Or, at any rate, that is how American history textbooks tell the tale. In fact, there was no national popular vote, even for slates of presidential electors, at all. Six out of the twenty-four states -- New York, Vermont, Delaware, South Carolina, Georgia, and Louisiana -- had presidential electors who were not elected by the people at all. In 1828, because of this "crisis," every state except South Carolina passed laws allowing the voters to choose presidential electors. (South Carolina declined to adopt this "reform" right up to the Civil War.)
Why were state legislatures given the power to choose presidential electors? The Founding Fathers intended to leave us a federal republic in which the national government was inhibited from becoming a bully and an autocrat. State legislatures chose presidential electors (or more precisely, the method for choosing those electors), and these legislatures also chose the state's two United States senators.
Taken together, state legislatures could choose the president and the Senate, and because federal judges were appointed and confirmed by those two, state legislatures could exercise a powerful restraint on an imperial federal judiciary. State legislatures also had the exclusive power of ratifying constitutional amendments, and also the power of proposing those amendments, although Congress can propose amendments, too.
The idea was to create very strong institutional constraints on the federal government and to give each state a common interest in preserving the prerogatives of all states. It worked. State legislatures, not state voters, made Washington and Jefferson presidents.
The 17th Amendment stripped state legislatures of that power and provided for direct election of senators. Conservatives have increasingly seen the calamity caused by that "progressive" amendment. It is almost unthinkable, for example, that ObamaCare, which creates dreadful burdens on all states, could have passed a Senate in which state legislatures determine whether its state's senators be re-elected.
The National Popular Vote Initiative threatens to redouble the disaster of the 17th Amendment by allowing for national election of a president utterly unaccountable to state governments. Here is a counter-proposal: state legislatures should reclaim their power to choose presidential electors. A candidate who seeks the electoral votes of, say, Pennsylvania would have to tell the members of that body how he would protect the rights of the Pennsylvania Commonwealth.
The devolution of power back to states, and the draining of power from Washington, is the key to almost everything conservatives want. Repealing the 17th Amendment could take years and maybe forever, but robust state legislatures could return the selection of our president back to state legislatures with a single state law.
End the pattering in presidential elections about how candidates can use federal muscle to help their supporters and instead shift the focus to how candidates can get Washington off the backs of state government. That is a reform that conservatives can support.