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Bypassing the Constitution Wasn’t Enough–Popular Vote Fanatics Resort to Lawsuits to Get Their Way (Washington Examiner) November 28, 2018

Posted by daviddavenport in Op/Eds, Politics.

One of America’s oldest colleges is under legal attack. No, I don’t mean Harvard University and the lawsuit over its admissions policies. The Electoral College is under attack, facing lawsuits filed in four separate federal courts this year, while also the subject of a stealth attack in state legislatures across the country. A concerted effort to change presidential voting from the constitutional elector system to a national popular vote would accomplish this through the courts and a clever end run rather than through legislatures and a proper constitutional amendment.

Although the Electoral College has faced more than 700 attempts to reform or eliminate it, passions run high now because in two recent elections (2000 and 2016) presidents were elected who had lost the national popular vote. This has happened only four times in our history, ironically twice in a twelve-year period in the late 1800s and now twice in the young 21st century. In all the other elections (save one decided in the House of Representatives), the same candidate won the popular vote and electoral vote. That’s a pretty good record (unless your name is Al Gore or Hillary Clinton).

The lawsuits seem thin, legally. Each case, brought in federal courts in two blue states (California and Massachusetts) and two red states (Texas and South Carolina), charges that the winner-take-all vote through the Electoral College denies a citizen’s right to an equal vote under the “one person, one vote” principles of the 14th Amendment. In their view, if you vote and lose, your vote did not count because it was not ultimately represented in the Electoral College. But the Constitution provides that presidential elections are a series of state elections, and that’s where the votes are counted. Your vote was counted, all right — it was just a losing vote in a state-based election.

What these suits really attack is the winner-take-all aspect of electoral voting and, under the Constitution, that is a policy for states to make. Two states, Maine and Nebraska, allocate their electoral votes by congressional district, reflecting the mix of red and blue one might find in a given state. The others allocate their votes on a winner-take-all basis, which has produced high stakes presidential campaigns in a few battleground states. But the right way to change that is to persuade more state legislatures to follow the Maine and Nebraska approach, not to ask the federal courts to take over one more state policy decision.

If the Electoral College lawsuits are a search for federal judicial mandates rather than persuasion and deliberation in state legislatures, the National Popular Vote Bill seeks a similar result through stealth and constitutional cleverness. This bill, being passed by state legislatures, seeks to obligate electors to vote for the winner of the national popular vote, even when it differs from the state’s own election winner. So far, the bill has passed in 12 states (including the District of Columbia) with their 172 electoral votes. When enough states have passed the law to total the needed 270 votes to elect a president, the legal obligation for those states’ electors to vote according to the national popular vote comes into effect. It is a clever attempt to get around the constitutional electoral system, pure and simple.

The Electoral College was intended to provide a role for both the states and the people to elect their president, a hybrid system reflected throughout the checks, balances, and separations of power in our federal system. Today it plays an important role in preventing a national recount and it requires candidates to campaign around the country, not just in the major population centers. In the name of greater fairness, proponents of changing to a national popular vote have pursued their own brand of unfairness. Through lawsuits, they seek federal judicial mandates rather than persuading state legislatures of the best policy. Moreover, through a clever end run, they seek to undo the Electoral College without a proper constitutional amendment.

David Davenport is a contributor to the Washington Examiner’s Beltway Confidential blog. He is a research fellow at the Hoover Institution.


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