The specter of impeachment is sucking all the oxygen out of the room. Washington seemingly has no will to discuss anything except what should or should not happen to the president.
How unfortunate. Just before Thanksgiving, important news broke in the battle over the Electoral College. The system’s opponents admitted to significant shortcomings in their plan to effectively eliminate the Electoral College.
Such news may never see the light of day. No one is paying attention.
The revelations concern the so-called National Popular Vote (NPV) effort. Its anti-Electoral College plan has been working its way through state legislatures in recent years. Now, one of the plan’s creators concedes that the proposal would create nearly insurmountable legal and logistical difficulties, if it is ever implemented.
The admission occurred when NPV proponents hosted a “lunch and learn” session for Florida state legislators in mid-November. Don’t be fooled by the apparently innocent purpose of the luncheon. The education component is less than thorough: Electoral College defenders typically aren’t invited to these sessions.
The real goal has less to do with education and more to do with lobbying.
In this instance, University of Illinois College of Law Dean Vikram Amar was invited to speak at the lunch. Amar is one of the professors who originally had the idea to effectively eliminate the Electoral College in a roundabout way, without the use of a constitutional amendment.
Amar’s idea was admittedly creative: NPV asks states to sign an interstate compact — basically, a simple contract among states. Signatory states agree to allocate their electors to the winner of the national popular vote, regardless of the outcome within state borders. The compact goes into effect when states collectively holding 270 electors have signed it. So far, 15 states plus Washington, D.C. have agreed to these terms. Those entities have 196 electoral votes among them.
In other words, the compact needs just 74 more electors. If Florida were to sign, that would cut this number down to 45.
If only national news outlets were paying attention: Amar admitted to the shortcomings of his plan during his visit to Florida.
NPV’s compact cannot function without election reforms, Amar conceded. Why? Because it can’t guarantee the most basic of things: An undisputed national popular vote tally.
Remember: There is no such thing as a single, national election in American presidential politics. Instead, elections are divided into 51 completely separate processes (50 states plus D.C.). How can a single popular vote tally be derived from 51 separate processes, each with its own set of rules?
It can’t. The result would be chaos.
If you thought Florida 2000 was bad, wait until you see the results of an election held under NPV’s compact. Lawsuits and uncertainty would abound.
Perhaps someone in Oklahoma would sue because Californians had more time to early vote than Oklahomans. That sounds like a possible Equal Protection Clause violation. Or maybe the Texas legislature would decide to complicate matters by refusing to release full election results until after the meetings of the Electoral College. What if Texas were to release the popular vote totals for the winning candidate in the state, but not the losing candidate?
The recordable national popular vote total would be skewed, to say the least.
The possibilities are endless. Amar knows this, which is why he advocated for election “reform” in Florida the other day.
“One of the things that I think should be done,” Amar said, “that would need to be done, after enough states sign onto this but before it goes into effect — there should be some standardization of the balloting process, and the counting process, so we can get a reliable national tally.”
In other words, states should be stripped of their power at election time. Instead, the federal government would create its own election code. Each state would be forced into compliance.
This would be no small change. A federal election code also means a new federal bureaucracy, complete with a presidential appointee at its head. The president would effectively be in charge of his own re-election.
How ironic. Many who advocate for elimination of the Electoral College do so because they hate Donald Trump. Yet the solution they propose would actually give him more power over his own re-election — or the election of his successor.
If NPV is adopted after 2024, then perhaps some other president would control the election bureaucracy. But should any president or political party be allowed to so easily control the mechanics of presidential elections?
The Electoral College protects Americans in all sorts of ways that go mostly unappreciated by the general public. Undermining presidential attempts to rig the election in his/her own favor is just one of them.
Given today’s political scene, you’d think that both sides would have a vested interest in preserving such a benefit.
Tara Ross is a retired lawyer and the author of several books about the Electoral College, including Why We Need the Electoral College (Regnery Gateway).