THE ELECTORAL COLLEGE - A LINCHPIN ENTITY UNDER ATTACK

"If we resort for a criterion to the different principles on which different forms of government are established, we may define a Republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people . . . . It is essential to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of Republicans, and claim for their government the honorable title of Republic."

. . . Publius (aka James Madison at least for some of the Federalist Papers)

The Federalist No. 39

Conformity of the Plan to Republican Principles

Wednesday, January 16, 1788

James Madison

THOUGHTS ON PRESERVING THE ELECTORAL COLLEGE

It's not a College of Learning - - but it is the product of the

collective Learning of the Founders as they worked

to create America

1. EXECUTIVE SUMMARY AND A FEW IMPORTANT CONSTITUTIONAL PRINCIPLES:EXECUTIVE SUMMARY

• A MULTI-YEAR PLAN, THE NATIONAL POPULAR VOTE COMPACT, (NPVC) HAS BEEN UNDERWAY FOR SEVERAL YEARS

WITH THE OBJECTIVE OF REPLACING THE ELECTORAL COLLEGE VOTING ALGORITHM WITH A DIFFERENT ALGORITHM

AS THE MEANS AMERICA USES TO SELECT ITS PRESIDENT.

• SUCCESS OF THE PLAN WILL DEGRADE SOME OF THE FUNDAMENTAL CONSTITUTIONAL SAFEGUARDS THAT THE

FOUNDERS CREATED AS A MEANS OF ASSURING THAT THE CITIZENS RETAIN FINAL AUTHORITY OVER OUR

GOVERNMENT AS A SAFEGUARD AGAINST THE RESULTING TYRANNY THAT HAS PLAGUED MANY HISTORICAL

"DEMOCRACIES".

• BUT THE NPVC ITSELF CONTAINS SEVERAL MAJOR FLAWS THAT OFFSET CITIZEN PROTECTION FOR TRUE FREEDOM.

• MOREOVER, THE NPVC, IF INSTITUTED, COULD BRING WITH IT AN UNINTENDED TEAR IN THE FABRIC OF OUR

GOVERNANCE THAT WOULD OPEN AMERICA TO SIGNIFICANT, POSSIBLY UNLIMITED, CONSTITUTIONAL ABROGATIONS.

• A SIGNIFICANT CONCERN IS THAT THE NPVC, AT FIRST BLUSH, SEEMS A SIMPLE STEP TO A DESIRABLE OUTPUT. SO

AN EDUCATIONAL PROCESS, TO INFORM VOTERS OF SOME OF THE SUBTLE RAMIFICATIONS OF THE NPVC, IS HIGHLY

NEEDED. MOREOVER, THE TIMING REQUIRED TO DEFEAT IT COULD BE LESS THAN 1-2 YEARS.

• THE ABOVE MATTERS AND ALGORITHMS ARE REVIEWED IN SOME DETAIL IN THIS ARTICLE AND SOME SPECIFIC STEPS

ARE RECOMMENDED TO AWAKEN THE PUBLIC TO THE NEFARIOUS CLOUD THAT HANGS OVER OUR NATION.

A FEW IMPORTANT CONSTITUTIONAL PRINCIPLES

• The Federal Government is assigned certain enumerated responsibilities; those not enumerated are left to the States or the

People

• Congress has a bicameral construct that is delicately balanced to support both Big & Small States

• The Constitution can be amended, but the process is purposely restricted to assure large percentages of Citizen

acceptance

• The American Constitution is the lynchpin of our Nation's dedication to the RULE OF LAW. As the primary source of our

governance, and being specifically created in written form, the Constitution is the fundamental guardian against the

Citizens' government slithering away from the RULE OF LAW toward the unstable, erratic history of the RULE OF MEN.

FIGURE 1 THE KEY ARGUMENT MADE IN THIS NOTE

2. THE CURRENT HEADLINE STORYA quietly-increasing, well-funded Liberal political effort has been unobtrusively implementing its strategy for a major change to our Constitutional process for electing our American President. The effort goes under the name of the National Popular Vote (NPVC) Compact, a name that sounds innocent enough, but masks some serious issues. The Compact is an alliance among enough States to achieve a majority of the Electoral Vote, that being 270 of the total 538 Electoral votes. With the very recent addition to its ranks of New York State, the effort now has accumulated 61% of the State votes needed to claim that its effort has now legally changed our Electoral College (EC) process for choosing the winner of the Presidential vote. This effort, if successful, could impact the 2016 election.

However, this total Constitutional subversion has some critical flaws and vulnerabilities. So, it is important to confront this effort broadly and with careful explanation of why the NPV is a direct affront to the painstakingly tailored balance ofpowers that our Founders worked to achieve when creating our Constitution. Moreover, observers have noted that a critical consequence of the effort would augment the voting power of high-population, urban-centered States which in recent decades are inclined toward the Progressive Agenda.

One example of criticism was raised in a April 27, 2014 NY Post editorial, which asserted that the NPV effort “undermines small-d democracy.” The Post also quoted an earlier statement by President John F. Kennedy stating “Direct election would break down the Federal system under which States entered the Union, which provides a system of checks and balances to ensure that no area or group shall obtain too much power.”

A critical point of the largely George–Soros funded effort focuses on an issue first causing great debate just after the American Revolution. The issue relates to whether the Presidential election is to be won by a purely National popular vote, or whether the vote must take into account that this approach can often be to the strategic disadvantage of our smaller States. The genius of the Founders was illustrated in the "Great Compromise" of the Constitutional Convention, which created a bicameral Legislative branch in which the House reflects a construction that assures that each State retains a voice, proportional to population, in the National governance, whereas the Senate reflects an equality of each State's voice. It is this structural balance that is at risk in the NPV initiative.

The full issue is somewhat complex and is discussed more fully in the balance of this article, but the following graphs help portray the momentum that is currently gathering.

FIGURE 2-1 RECENT STATUS OF FORMAL SIGN UP BY INDIVIDUAL STATES

The map shows the status of the NPV act as of mid-April 2014. Again, 2 Electoral College numbers to keep in mind:1. 538 - - the total # of Electors distributed across the States

and the District of Columbia. The # of Electors is assigned based upon the number of House Members allocated to each State + each State's 2 Senators, + 3 Electors for Wash. DC.

2. 270 - - the number that represents achieving a 50% majority in a vote of the Electors (an exact split vote being 269 for each side of the vote)

As noted by the colorations, dark green represents the # of States which have passed the NPV Act; Light green represents a partial action of approval by the State Legislature, with further voting required; Grey represents states which have not voted for the Act.

Each square in the lower cartogram represents one vote.In specific numbers, the NPVC has achieved approval of States representing 165 Electors. That is: 30.7% of the total 538 Electors or 61.1% of the majority required to approve the NPV Compact.

FIGURE 2-2 A TIMELINE FOR A CAMOUFLAGED ASSAULT ON OUR CONSTITUTION

This chart illustrates a timeline of voting approvals of the NPV by the States that have approved it to date.

As noted, the recent approval of New York state, puts the total at 165 votes or 61.1% of the majority required to approve the NPV Compact.

As seen, the voting has been proceeding for about 7 years and there is no clock deadline for the issue to expire. So proponents can bide their time and simply continue quietly to persuade and coax. This is the reason that opponents of the NPV need to awaken Citizens to this continually ticking clock that threatens an "end run" around some important Constitutional protections.

FIGURE 2-3 WHY THE LIBERALS WILL CONTINUE TO PUSH FOR THE NPV

As noted, the NPV has already completed approvals in 11 states, accumulating 165 Electoral votes. It is true that several states have voted not to approve. But such votes can also be reversed.

Moreover, as a glimpse at this Electoral vote map for the 2012 Election shows, all of the State approvals to date come from States which supported Barack Obama. A simple calculation shows that if only the following 6 States (which also voted for Pres. Obama in 2012) climb onboard, the added Electoral votes will tally 106, thus clearing the goal hurdle of 270 votes with a 271 total tally, i.e. :

FL (29); PA (20); OH (18); MI (16), VA (13) and WI (10).

Alert and effective opposition is needed.

2012 ELECTORAL

VOTE TALLY

3. WHAT DOES THE NPVC PROPOSE AND WHY ?

Under the terms of this proposed NPV Compact, each State agrees to hold a statewide popular election for President, as every State already does. After the election, each signatory state’s chief election official determines the number of votes cast for each Presidential–Vice Presidential slate of candidates in his/her State.

Once all of the statewide popular election vote totals are known and the National Popular Vote winner determined, the NPV Compact requires that EACH SIGNATORY STATE APPOINT THE SLATE OF ELECTORS COMMITTED TO THE CANDIDATE WHO WON THE TOTAL NATIONAL POPULAR VOTE, REGARDLESS WHETHER THAT CANDIDATE WON THAT PARTICULAR STATE’S OWN POLL.

In the view of supporters: (i) once the Compact goes into effect, the Presidential election would become solely the product of the nationwide popular vote. Whether a candidate won a particular State, such as Florida in 2000, would be irrelevant; and (ii) a few select swing states (such as Ohio, Pennsylvania, and Florida) currently receive too much attention from the Presidential candidates, while “safe” states (such as California and New York for the Democrats and Texas and the South for the Republicans) receive too little.

The principal charge against the Electoral College is that it is anti-majoritarian, in two ways:

First, the number of Representatives allocated to each State does not map perfectly with the population of the States. Both Missouri and Minnesota, for example, have 8 Representatives (and therefore, with 2 Senators, 10 Electors), but Missouri has at least 684,000 more inhabitants than Minnesota.

Second, because each State receives two Senatorial Electors regardless of its population, less populous states receive more Electors than a strict, population-based allocation would produce. Wyoming, for example, has three Electors for its 563,000 residents (or one for every 187,600 residents in the State), while California has fifty-five electors for its thirty-seven million-plus residents (or one for every 677,000 residents). If electors were apportioned strictly on the basis of population, Wyoming would have only one Elector, while California would have sixty-five.

3. WHAT DOES THE NPVC PROPOSE AND WHY ?

As a consequence, the Electoral College can elect a President who lost the nationwide

popular vote. As evidence, the critics allege the Electoral College has “misfired” at least three

times in our history. In 1876, Republican Rutherford Hayes won a bare majority of Electoral

College votes, even though Democrat Samuel Tilden received 250,000 more popular votes. In

1888, Republican Benjamin Harrison received a substantial majority of votes, despite the fact

that Democrat Grover Cleveland received 91,000 more popular votes. Most recently, in 2000,

Republican George W. Bush won a bare majority of votes, while Democrat Albert Gore

received over half a million more popular votes nationwide.

On the other hand, as shown in Fig 3-1, the NPVC is not without some serious shortfalls itself.

And even worse, has some major structural elements that clash directly with the structure of

our Constitution, as meticulously crafted by the Framers. More on this point in the next

section.

FIGURE 3-1 SOME FLAWS IN APPLICATION OF THE NPVC ?

Note that per the NPV, and IF the eleven largest States were to ally in NPV support, it would appear that 270 electoral votes would be available just within the NPVC and thus 39 States would be effectively rendered impotent from electing the President of the United States of America.

But wasn't one of the principal provisions of our Constitution to assure that States Rights be effective and available as a balance to the unhealthy, excessive amalgamation of power by the Federal Government ?

More critique in section 4.

4 CONTRASTING THE THOUGHTFULNESS AND CITIZEN PROTECTION OF THE EC vs THE NPVC

1) THE BUSH-GORE ELECTION REAWAKENED CONCERN REGARDING THE POPULAR VOTE

The Presidential election of George Bush in year 2000 awakened anew a minority concern with how our Electoral

College algorithm could assess George Bush as the election winner, even though his opponent, Al Gore, received a

small edge in the popular vote.

2) BUT THE EC IS NOT A NEW ISSUE & MANY REASONS FOR ITS LONG-TIME SUPPORT EXIST

THE ELECTORAL COLLEGE HAS FACED MANY CHALLENGES TO ABOLISH IT OVER THE YEARS – ALL

UNSUCCESSFUL. To be sure, the Electoral College has long been the target of criticism. Of the 11,000 Constitutional

amendments proposed in Congress in its history, over 1,000 have dealt with the Electoral College, and many of those

have sought to implement a direct popular election of the President. In fact, bills proposing a Constitutional Amendment

to abolish the Electoral College are routinely introduced in every Congress. Nevertheless, these proposals have

ALL failed to pass Congress.

SINCE 1880, ALL STATES HAVE SELECTED ELECTORS BASED ON THE WILL OF STATE VOTERS. The

four processes used for selecting their Presidential Electors: 1) Federal Legislative appointment, (2) Statewide popular

election in which all a State’s Electors are selected on the basis of the Statewide vote (an "at-large" or winner-take-all

system), (3) Statewide popular election by district, or (4) a combination of the latter two electoral systems - - a hybrid

process in which some Electors are elected on the basis of the Statewide vote and some on the basis of a district vote.


Importantly, under all four systems, each State’s electors are selected in accordance with the wishes OF THE PEOPLE

OF THE STATE, NOT THE NATION GENERALLY. Note that NOT ONCE BETWEEN 1880 AND TODAY, a period in which

EVERY State in the Union has conducted a statewide popular election for its Electors, has any State selected its Electors

based on the votes of individuals in OTHER States. Rather, as the Framers expected, States have selected their Electors

based on the will of State voters, not the Nation at large.

AT THE BIRTH OF THE CONSTITUTION, THE FRAMERS REVIEWED MANY OPTIONS. As the U.S. Supreme Court

pointedly reminded the American people in Bush v. Gore, the President is not elected by the People but rather by

Electors appointed by the States - - the so-called “Electoral College.” The Framers adopted this system of indirect

election to provide the President with a degree of independence from Congress. Were the President selected by

Congress - - the principal alternative to the Electoral College considered by the Framers - - THE FRAMERS FEARED THAT

PRESIDENTS WOULD BE TOO DEPENDENT ON CONGRESS AND THAT POTENTIAL CANDIDATES FOR THE OFFICE

WOULD SEEK CONGRESSIONAL SUPPORT BY MAKING UNDESIRABLE, IF NOT DOWNRIGHT CORRUPT

COMPROMISES.

THE CURRENT PROCESS HAS EVOLVED, STABILIZED INTO ITS CURRENT FORM FOR GOOD REASON,

AND HAS WITHSTOOD THE TEST OF TIME. The Constitution leaves it to each State to determine how its Electors

are selected, specifying that the Electors shall be appointed by each State “in such Manner as the Legislature thereof

may direct.”(Article 2, sec 1). Although many State legislatures originally appointed the Electors directly, by the mid-

1830s ALL BUT ONE STATE (SOUTH CAROLINA) HAD MOVED TO A SYSTEM OF HOLDING POPULAR ELECTIONS TO

SELECT THE ELECTORS.


3. REGARDING THE VOTING ALGORITHM OF THE ELECTORAL COLLEGE

A FEW PRELIMINARY REMARKS. Importantly, An essential element distinguishing the Electoral College from

the NPVC proposal (and others) is the basic voting algorithm used to tally the quadrennial vote for the

Presidency of the United States. A firmer understanding of the issue at stake with the EC vs the NPVC is best

preceded with a short discussion of some of the various algorithms that have been employed historically. Figure

4-1 summarizes a few key points:

• The current population of the U.S. (300M +), together with the # of Electoral votes available, yields

a figure of about 1 Electoral vote representing 580,000 American Citizens. This # changes as the

population grows, although the number of Senators and Representatives of Congress (which

defines the exact number of Electoral Votes, is changed much less frequently).

• Additionally, with regard to actual voting numbers, other parameters enter the equation, including

how many within the population are of voting age and then how many actually cast their ballot.

Some representative variations of these in recent years are discussed next.

• We've selected 3 Algorithms to examine a little more closely in the following 2 charts. These

include the current Electoral College algorithm, that of the proposed NPVC, and also the

algorithm used for some decades in the post-revolutionary history of our Nation.

FIGURE 4-1 PRESIDENTIAL VOTING - - ALGORITHMS


A TABULATION OF THE 2012 ELECTORAL VOTE BY STATE AND WITH BREAKOUTS REFLECTING THE 2 POLITICAL PARTIES. Figure 4-2, parts a and b, show some details of the 2012 Electoral College Vote. Since political aspects are inherent in the EC vs NPVC issue, this tabulation includes columns with data helpful to discuss the 3 Voting Algorithms under consideration. In particular, please note the following:

• The fifty States + Wash. DC have been listed in columns 1 and 2, in descending order of population. For

ease of discussion in chart 4-3, they have also been summarized into 10 groups of 5 States each as

highlighted by color in column 1. Column 3 summarizes the population for each group of 5.

• Column 4 gives the Electoral college Votes available to each State by virtue of the number of their total

Congressional representation in both the Senate and the House. Column 5 gives the Electoral vote total

for each group of 5. The District of Columbia is separately assigned an Electoral Vote count by

Constitutional Amendment #23.

• Column 6 shows for each State, by color, whether that State's popular vote was dominated by the

Republicans (red) or Democrats (blue). As the column heading suggests, this relates to the EC Algorithm,

which awards all of the State's Electoral votes to the candidate receiving the majority of votes cast and

typically is associated with the Republican vs Democratic voting strength in that State.

• Columns 7 and 8 show the actual allocation of Congressional Representatives and their affiliation as per

their declared political Party. This algorithm correlates with the historical process of nominating

electoral College delegates directly by a vote of the 2 Houses of Congress.

• Column 9 shows how the NPVC proposal would allocate Electoral votes under the proposed Compact.

FIGURE 4-2a PRESIDENTIAL VOTING - - A BY-STATE TABULATION OF SOME 2012 VOTES

FIGURE 4-2b PRESIDENTIAL VOTING - - A BY-STATE TABULATION OF SOME 2012 VOTES

4 CONTRASTING THE THOUGHTFULNESS AND CITIZEN PROTECTION OF THE EC vs NPVC

A SUMMARY DISCUSSION OF HOW THE 3 VOTING ALGORITHMS AWARD THE PRESIDENCY, USING THE DATA OF THE

PRECEDING TABLE, FIG 4-2. Figure 4-3, upper part, summarizes the Electoral College vote in terms of the 10 groups indicated

in Fig 4-2. Here, it can be appreciated why the artifice of 10 groupings was used - - simply to make the point with less clutter. This

writer's assertion is that conclusions drawn using the groupings would be identical to that achieved if the tabulations were done

using the 51 separate rows of that figure. The key conclusions to be drawn:

• USING ALGORITHM #1, vote by the Federal Legislature: The Democrats would eke out a narrow victory, defeating the

Republicans by 271 to 264 approximately 1.3 % of the EC Vote. This assumes the Democrats had won the votes of the 2

Independent Congresspersons.

• USING ALGORITHM #2 , vote by the Citizens, based on statewide, winner-take all, for EACH State's Electoral votes, the

Democrats would win by 68 votes or approximately 12.6% of the total EC Vote.

• USING ALGORITHM #3, a vote using the multi-State compact, engineered via an NPVC Compact which had rounded up

the highest electoral vote States which had also voted Democratic in the 2012 election. The effective result would be 276

to 0. This conclusion is drawn, since if an NPV Compact had been signed by the 15 States shown, with a cumulative 276

vote count, there's really no impact of any other voters, since the Pact is readily known, b and controlling, on the day of

the EC vote and the remaining 35 State voters might just as well have stayed home.

Importantly, there are 2 other points to be made:

1. There would certainly be a strategy amongst NPVC supporters to huddle, coax and deal-make with the largest of our

United States.

2. The NPVC , as a general technique is not limited to just Presidential voting. If such a Pact were in use, any Bill requiring a

majority vote to pass the Congress would be fair game for this "ganging up" strategy by larger States vs Smaller ones.

Of course, the Founders were concerned about this very situation. Their solution: States populate the US

Senate equally, as one protection against ganging up. Moreover, the US Supreme Court has noted in

several rulings that the rights of the individual States was purposefully crafted and must be protected.

FIGURE 4-3 PRESIDENTIAL VOTING - - A BY-STATE TABULATION OF SOME 2012 VOTES


4. THE NPV, IN TRYING TO MODIFY A MILD IDIOSYNCRASY IN THE ELECTORAL

COLLEGE, BRINGS IN SEVERAL NEW FLAWS OF ITS OWN.

MAJOR CONFLICT WITH STATES RIGHTS. Importantly, majoritarianism is not synonymous with democracy. One can believe—as the Framers very much did—in democracy but not majoritarianism, at least not in the strict sense urged by the NPVC’s supporters. Indeed, the Constitution creates a Federal political structure (our Republic) that contains several non-majoritarian elements, such as the Senate, the bicamerality requirements for Federal legislation, and, clearly, Judicial review. Indeed, no less an authority than James Madison expressly described the governmental structure created by the Constitution—including, most notably, the Presidential election process—as a “mixed” system that blended, in his words, “national” and “federal” characteristics.

NPV HANGS ITS HAT ON ITS READING OF USSC DECISION: MCPHERSON VS BLACKER- - N .

WILLIAMS, P 1570: “CONGRESS HAS PLENARY POWER” . Both in structure and effect, the NPV threatens the interest of voters in non-Compact States. As previously noted, the NPVC is a State-initiated interstatecompact that will go into effect once a sufficient number of States comprising at least 270 electoral votes sign on to it. Once done, it does not matter whether voters in non-signatory States desire to preserve the current state-by-state electoral system. They will be disenfranchised and the National popular vote will be conclusive.

NPV SIMPLY ALLOCATES MORE POWER TO CENTRAL GOVERNMENT. While enhancing "backroom horse-trading", the NPV opens further opportunity for the Central government to intrude into issues that are far better left to Citizens, using their wallets to protect and preserve their LIF E, LIBERTY AND PURSUIT OF HAPPINESS, per the Framers' construct within the Constitution.

THE USSC HAS RULED IN OTHER CASES (THORNTON) THAT INTERPRETATION OF SPECIFIC CONSTITUTIONAL PHRASEOLOGY,

IS LEGITIMATELY AIDED BY OTHER HISTORICAL RECORDS OF THE FRAMERS. MOREOVER, THERE IS GOOD REASON TO

BELIEVE THAT THE USSC WILL LOOK WITH FAVOR ON UPHOLDING the “intent of the Framers” in interpreting the specific wording

of some Constitutional provisions.

That the States generally have the power to choose the manner in which their Electors are selected begins the Constitutional analysis; it does not end it. Hence, in assessing the scope of that power, it is important to remember that the reach of a State’s Constitutionally-delegated power does NOT include the power to reconfigure or undermine the federal Constitutional structure.

The Supreme Court’s decision in U.S. Term Limits, Inc. v. Thornton is instructive in this regard. In the 1990s, several States imposed

term limits on their members of Congress. Defenders of these laws also, like the NPVC’s proponents, pointed to the Elections Clause

of Article I, Section 4, which delegates power to the State legislatures to control the “Times, Places and Manner” of holding elections for Congress. Term Limit supporters argued that the categorical language of the Elections Clause provided State legislatures with

plenary power to adopt any elections regulation not expressly forbidden by the Constitution, and they contended that state-imposed term limits were therefore constitutional. BUT . . . The U.S. Supreme Court disagreed. In the Supreme Court’s view, the adoption of

term limits was tantamount to imposing yet further qualification for Federal office above and beyond the three qualifications identified in the Qualification Clauses of Article I. In its decision against Thornton, the Court identified several mutually reinforcing considerations. First, and most importantly, the Court traced the historical understanding of Article I, both in the Constitutional

Convention and thereafter. For the Court, the absence of any suggestion at the Constitutional Convention or ratification debates that

the States could use their power over Congressional elections to establish additional qualifications for office in general, or term

limits in particular, was telling. Additionally, the Court looked to (1) democratic theory and Constitutional structure, and (2) the history of Congressional actions and found it persuasive that, both in the wake of the Constitutional Convention and thereafter, no

State had sought to impose term limits for Federal office. The Courts ruling might be summarized in sketch form as shown in Figure

4-4.

So, in summary, from legal, historical and ACTUAL decades of experience, the Electoral College illustrates the successful thoughtfulness and compromises that have resulted in many solid RULE OF LAW underpinnings. Americans should be proud of, and respect, the Framers careful balancing of multiple governmental powers to protect the Nation from unhealthy usurpation and tyranny. Thus, from this writer’s vantage point, the NPVC looks like a “Solution in search of a Problem” and a bad path for America.

FIGURE 4-4 THE USSC BACKS THE CITIZENS AS THE ULTIMATE ARBITER OF CRITICAL GOVERNANCE ISSUES

THE PEOPLE

MANAGE THIS

4. CONTRASTING THE THOUGHTFULNESS AND CITIZEN PROTECTION OF THE EC vs THE NPVC

NPVC VS CONSTITUTION - A QUITE FUNDAMENTAL CONFLICT

Whether or not Congress or the States could, by pact and/or statute, require States to appoint their Electors in accordance

with the national popular vote, the notion that a group of States can, by their concerted action, transform the manner in which

the President is elected CANNOT BE JUDGED AUTHENTIC UNDER OUR CONSTITUTION . If a group of States can agree to

pledge their Presidential Electors on the basis of the National vote, then logically they must likewise be able to agree to pledge

their Electors to a candidate only from those States, or only from one political party, or only in accordance with the wishes of a

designated committee of “presidential experts, etc.” MOREOVER, IS THERE ANY LIMIT TO THE CONTENT OF OTHER

PACTS THAT SUPPORTERS MAY DREAM UP AND FIND AN AMIABLE PHRASE IN THE CONSTITUTION THAT MIGHT

SEEM TO ENCOURAGE IT ?

In short, an interstate compact regarding the manner in which Presidential Electors are selected, threatens to exclude the

wishes of voters in non-signatory States, and, therefore, it seems inconceivable that when a historically-validated and

successful Constitution specifies:

• how the President is to be elected, albeit in terminology that is subject to differing interpretation

• how the National governance must be balanced, in many Constitutional provisions and underlying structure

• How the Constitution's own requirements are to be amended

- - how would all these safeguards of Citizen freedom permit a group of States to alter so fundamental a part of our

Constitutional structure?

"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."

5. BROADLY: WHY THE ELECTORAL COLLEGE IS WELL-SUITED TO AMERICA'S CONSTITUTIONAL GUIDANCE

1. SOME FURTHER HISTORY

HISTORY OF THE EC. Briefly recapping a few earlier points: The Framers assigned the power to determine the

selection of the Presidential electors to the State legislatures. The Framers, though, did not discuss HOW the State

legislatures would actually select their Electors. The states were thus left to their own devices in determining what

process to use. A number of parameters distinguished the first several Presidential elections. These included: State

legislators appointing the Electors vs. State popular voting to select the Electors. Other variations included whether

the State vote was accomplished at a district or State level. Moreover, the emergence of the first two political parties

(Federalists and Republicans) added further to the considerations used to allocate a given State’s Electoral vote. The

differing approaches disclosed differing strengths and weaknesses in the voting process selected.

One important lesson is available from these variations: The States’ actual use of its discretionary Electoral power

belies the notion that States have the power to appoint their Electors in accordance with a National popular vote. NOT

ONCE IN OUR OVER 200-YEAR HISTORY has even one State appointed its Electors on this basis. Rather, in every

Presidential election, every State has appointed its Electors in accordance with the wishes of the Citizens of the

State. That uniform, long-standing practice suggests a conclusive understanding of Article II, and, in so doing,

condemns the NPVC.

HISTORY OF THE CONSTITUTION. In a very real sense, the Framers who convened in Philadelphia in the

summer of 1787 were creating governance much from scratch. Ultimately, the decision to vest the selection of the

new President in an Electoral College was embraced by the delegates to the Constitutional Convention of 1787 not

because anyone thought it was the optimal way to elect the President, but because it was much preferable to the two primary alternatives: (i) direct election by the People or (ii) appointment by Congress.


It is important to understand the divided political forces that led the Framers to embrace the Electoral College over the alternatives. The debate turned on the role of the States in the new National political union. Only after one appreciates this more fundamental battle over the nature of the Union and the closely intertwined issue regarding the representative structure of the new Congress can one begin to appreciate the forces that led the Framers to arrive at a final compromise.

In the years following the 1776 Revolution, the Articles of Confederation Congress found itself woefully unable to protect the new Nation’s interests abroad or to respond to emerging challenges at home. Many issues revolved around State vs Federal powers. Accordingly, a Constitutional Convention was convened in May 1787, and on May 29, 1787, Governor Edmund Randolph of Virginia introduced the so called “Virginia Plan.” Primarily the work of James Madison, the Virginia Plan reflected the profound ambitions of Madison to rectify the Confederation to achieve a far better balance of Central vs State vs People power.

Under the terms of the Virginia Plan, there would be a new National government composed of three separate branches. With respect to the Legislative branch, the Confederation Congress would be replaced with a bicameral Congress, half apportioned on the basis of State population. With the least populous State entitled to at least one representative, the Virginia Plan was not entirely majoritarian - -Representatives would be assigned on a State-by-State basis which would inevitably lead to some variances in population among Congressional delegations from different States - - but importantly its underlying political theory was still one in which political power tracked population.


However, not all were satisfied with the Virginia plan and other plans were offered from New Jersey and Connecticut. The issues in dispute were largely centered around positions supporting the relative strengths of the Federal government vs the States. After much divided debate, a committee was appointed to help fashion a compromise, which was finally achieved in July of 1787.

“THE GREAT COMPROMISE”. The “Great Compromise” produced Legislative power that was split between the popularly apportioned House of Representatives and Federally apportioned Senate. The Framers then further specified in the Constitution that each State receives Presidential Electors equal in number to the total Representatives plus Senators of that State. As noted previously, the Constitution then leaves it to each State to determine how its Electors are selected, specifying that the Electors shall be appointed by each State “in such Manner as the Legislature thereof may direct.” A sample 2012 Primary ballot from Wisconsin is shown in Fig 5-1

Although many State legislatures ORIGINALLY appointed the Electors directly, by the mid-1830s, all but one State (South Carolina) had moved to a system of holding popular elections to select the Electors. Relatedly, while States at first used different Electoral systems - - some States used an at-large system that effectively gave all the State’s electors to the winning candidate, others used a district system, while still others used a combination of both the at-large and district systems - - all of the states ultimately adopted the at-large system. In the twentieth century, States moved to a de facto “winner-take-all” system with the adoption of the so-called “short ballot,” which removed the Electors’ names from the ballot and listed only the Presidential andVice presidential tickets. With the short ballot, regardless of the number of Electors possessed by the State, Citizens would cast only one vote for the Presidential and Vice-presidential ticket of their choice; the State would then award the winning ticket all of that state’s Electors. Today, all States use the short ballot.

FIGURE 5-1 REPRESENTATIVE "SHORT BALLOT" USED FOR PRESIDENTIAL

PRIMARY, WISCONSIN 2012


IN PRACTICE, THE EC DELIVERS THE PEOPLE’S WILL

The Electoral College has sometimes been criticized for Electors who actually vote differently than they had previously announced. But this is a point that is dwarfed by the actual numbers. Since 1796, there have been only ten “faithless” Electors out of the over 20,000 Electors, and none of those faithless Electors affected the outcome of an election. HENCE, AS A PRACTICAL MATTER, THE POPULAR VOTE IN EACH STATE, weighted by the known electoral votes, CONCLUSIVELY DETERMINES WHICH CANDIDATE RECEIVES THAT STATE’S ELECTORAL VOTES. Thus, Citizens acknowledge the election results on Election night, not after the EC vote many weeks later, although in reality, it is the EC action, not the popular vote, that has Constitutional significance.

For nearly 2 centuries, People in every State have voted in the Presidential election. Moreover, with just a few exceptions,the Electors selected by the People have faithfully voted the electorate’s preferences. Hence, while in form the Electoral College serves as a political intermediary between the People and the President, in practice, the votes of the People are faithfully transmitted into electoral votes. In short, the Electoral College has done its job of functionally representing the popular vote while also preserving our Constitutional integrity - - a feat that eludes and thus fatally undercuts the claims of the NPVC advocates. Figure 5 helps emphasize this thought pictorially.

TO SUMMARIZE SECTION 5:So, in summary, the Constitution, in somewhat broad terminology, assigns the process of electing the

President specifically to the separate States. That broad definition has resulted in many procedural

variations and accounting algorithms regarding compliance with the Constitutional mandate. Over time,

multiple variations have been tested. However, over the course of the 2+ intermediate centuries, trial

and error experience has led to a quite uniform practice that fits both the Constitutional mandate of

Article 2, section 1 and other provisions of the Constitution which bear on the issue.


Because the EC process is not a 100% perfect mapping of the National Peoples’ voice, there have been

and continue to be those who propose changes to the EC to achieve perfection. The NPVC is one of the

most recent. However, for good and varied reasons, the many replacement attempts all involved

perceived bias in favor of either the larger vs smaller States or actions contrary to other Constitutional

intent. The NPVC, as explained herein, is no exception. None of the past attempts have succeeded in

dislodging the EC; they have all been found wanting.

In sharp contrast, the EC process has been faithful to the idea that the popular vote at the State level,

fundamentally reflecting the will of the People, should be the basic Presidential election measure.

Additionally this EC approach helps undergird a chief objective of the Framers - - to balance governance

powers so that neither the Central government nor any of its Branches, nor even State governments could

transform our nation into a RULE OF MAN as opposed to the highly-desired Citizens’ RULE OF LAW.

FELLOW CITIZENS, WE TODAY, CAN DO NO LESS THAN MANY OF OUR

PREDECESSORS TO PRESERVE THE IDEALS OF OUR CONSTITUTION. THIS

INCLUDES CONSTANT VIGILANCE AGAINST EXPANDED GOVERNMENT INTRUSION

INTO THE CITIZENS' RIGHTS TO CHOOSE AND TO THE RULE OF LAW.

FIGURE 5 THE 2012 ELECTORAL VOTE IN 3 DIFFERENT REPRESENTATIONS

6. FINAL THOUGHTS AND SUGGESTED SPECIFIC STEPS TO SUPPORT OUR ROBUST LEGACY FROM THE FOUNDERS - - OUR PRESENT, WELL-DEVELOPED, ELECTORAL COLLEGE

CONSTRUCT

6.1 FINAL THOUGHTS

The NPVC is a subtle but important threat to the Citizen's Constitutional protections. It suggests a voting algorithm, which if fully exploited, can set one Group of Citizens against another for many issues. Moreover, it is a mechanism likely to introduce: (i) more cronyism into BOTH Federal and State governance, and (ii) more Federal government intrusion into the People's freedom of choice. Fortunately, this situation was foreseen by the Founders, who left our Constitution with many protections that put the state of the Nation into the Citizens hands. But this requires an alert, active and well-informed Citizenry. A rationale has been put forth here that Citizens need to take action on this now. Please think about this note and take a further look at many of the very fine cited references.

6.2 SUGGESTED SPECIFIC STEPS (also see Fig 6.1):

• LAUNCH A SIGNIFICANT EDUCATIONAL CAMPAIGN TO MAKE CLEAR TO ALL VOTERS THE DEPTH OF ARGUMENT SUPPORTING THE EC vs THE SHALLOW SLOGANEERING OF THE NPV COMPACT PROPOSAL

• RALLY CONGRESS TO SUPPORT THE CONSTITUTION• RALLY THE GOVERNORS TO SUPPORT THE EC IN THE RIGHTS OF STATES AND THE PEOPLE• RALLY THE CITIZENS , AND MANY SYMPATHETIC GROUPS, TO SUPPORT ONE OF THE

FRAMERS' FOUNDATION STONES TO ASSURE CITIZEN INFLUENCE IN GOVERNANCE, I.E., THE ELECTORAL COLLEGE.

SECT

#REFERENCES

1 In this article, I've relied on many fine published works and wish to specifically acknowledge significant use of the comprehensive article by Norman Williams, which provided an extensive thread of information relating to the value of the current Electoral College and pitfalls of competitive proposals:"Why the National Popular Vote Compact is Unconstitutional", Norman Williams , November 19, 2012, Brigham Young University Law Review, p. 101, 2012

1 "Protecting Electoral College From Popular Vote", Hans A. von Spakovsky, October 26, 2011, HERITAGE FOUNDATION

2 "Scheme to Bypass Electoral College Quietly Advances", Aaron Klein, WorldNet Daily, : 05/14/2014 http://www.wnd.com/2014/05/scheme-to-bypass-electoral-college-quietly-advances/#E2YufLjIIuZYFDXb.99

2 "NPV Moves in N.Y, Mass.", Trent England , 06/08/2010, http://www.saveourstates.com

2 WIKIPEDIA - - National Popular Vote Interstate Compacthttp://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact

2 WIKIPEDIA - - " The Electoral College (United States)"

4 WIKIPEDIA - - "Political Party Strength in U.S. States", 5-30-2014

4 WIKIPEDIA - - "List of U.S. States by Historical Population"

4 WIKIPEDIA - - "U.S. Term Limits, Inc. v. Thornton", Decision Quote: Justice John Paul Stevens -

4 "Text of U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995)", available from: Findlaw(http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=514&page=779)

5 "National Popular Vote Nonsense", Gary Galles, April 24, 2014, Mises economic bloghttp://bastiat.mises.org/2014/04/national-popular-vote-nonsense/

6 "Our Ivory-Tower, But Ever-Expanding Federal Government", Mark Sussman, Nov 17, 2013 , http://www.slideshare.net/MarkS181/specl-mbs-ppt-supporting-blog-issues-of-spring-amndmt

http://en.wikipedia.org/wiki/National_Popular_Vote_Interstate_Compact

http://bastiat.mises.org/2014/04/national-popular-vote-nonsense/

http://www.slideshare.net/MarkS181/specl-mbs-ppt-supporting-blog-issues-of-spring-amndmt

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THE ELECTORAL COLLEGE - A LINCHPIN ENTITY UNDER ATTACK