In the September/October issue of Politico Magazine, Tim Alberta asks an important question: Is the Electoral College doomed?
Last week, Hillary Clinton made clear where she stands on the issue. While Alberta doesn't arrive at a definitive answer, he does a fine job objectively examining both sides of the debate.
However, his analysis, as is often the case when the merits of the Electoral College are analyzed, misses a key benefit of the system our founders established for selecting the nation's executive: the connection to our federal structure.
The Electoral College was part of the founders' grand federal design that respects the unique and sovereign role of the states. And it is a system worth defending for future generations.
For those unfamiliar with the debate, defenders of the current system are pitted against those that want to elect the president through the popular vote, many of whom support the National Popular Vote bill. If enacted in states with a combined worth of 270 electoral votes, an interstate compact would go into effect where those states would give all their electors to the winner of the national popular vote, regardless of which candidate wins their state.
Alberta describes his experiences with the NPV movement, in particular the tactics used by people such as Saul Anuzis, a Republican operative from Michigan that has joined with California Democrat John Koza to end the Electoral College as we know it. In order to lure otherwise unsuspecting state legislators, Anuzis and his NPV cronies organize booze-filled junkets to discuss the nuances of the NPV, and presumably to also enjoy the warm weather at resorts in Panama and elsewhere.
The nuances should trouble any conservative that respects the constitutional framework the founders established. By establishing an interstate compact, the NPV movement is basically predicated on an end-run around the constitutional amendment process.
Ten states plus the District of Columbia have already passed compact resolutions representing 165 Electoral College votes. Perhaps even more troubling, the resolution has passed at least one legislative chamber in 12 other states, including otherwise conservative states such as Arkansas, Arizona, North Carolina, and Oklahoma.
This compact approach would likely run headlong into Article I, Section 10, Clause 3 of the Constitution, which prohibits any state from entering into any agreement or compact with another state without the consent of Congress. But I guess that's a nuance that may be lost while one is enjoying an all-expenses paid trip to, as Alberta describes it, "a four-star resort in a third-world country."
Aside from the legal hurdles, the compact ignores the many practical benefits of the current system.
The practical benefits of the Electoral College as we know it today have been well established by the small cadre of its defenders, including the Oklahoma Council of Public Affairs' Trent England; Tara Ross, author of Enlightened Democracy: The Case for the Electoral College; Louisian State University Law School's John Baker; and the Heritage Foundation's Hans von Spakovsky. Unfortunately, none of us have million dollar budgets to wine and dine devotees. Instead, we speak to local chapters of the Federalist Society, law school classes, rotary clubs, and liberty-minded grassroots groups.
We're happy to do so because the benefits of today's system are real and unchanging. They include avoiding the pure nationalization of elections (which would inevitably be the result of the NPV); maintaining the localized nature of the election process, which would force candidates to build broad, geographically-balanced coalitions of swing states as opposed to concentrating all efforts in essentially a handful of urban areas; preventing broad-scale voter fraud; and ensuring a clear winner and peaceful transfer of power.
While Alberta touched on several of these practical benefits, he missed the most important benefit, and it's the one proponents of the NPV never want to discuss: Today's system was not some clumsy mechanism that the founders stumbled upon, or, even worse, simply agreed to as the result of exhaustion and the desire to wrap up the business of the Constitutional Convention.
As explained by Alexander Hamilton in Federalist No. 68, "the mode of appointment of the Chief Magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, of which has received the slightest mark of approbation from its opponents." Going on, he emphasized that "if the manner of it be not perfect, it is at least excellent."
And excellent it is. At a time when the body politic is as divided as ever, further weakening the role of the states in our federal system is the very last thing proponents of our constitutional system should support. The decision of the founders to reject proposals based on a national popular vote or simply allowing Congress to select the president represented a broader compromise.
In fact, the Electoral College and its state-centric focus should be seen as part of the Great Compromise, which resulted in all states receiving two senators. In our federal system, all power is not concentrated in one central government in the same way that all power is not concentrated in large urban cities. Less-populated states have an equal voice in the Senate. And less-populated states, while not carrying the same amount of influence as urban states, nevertheless still have a direct say in electing the nation's chief executive.
As even the political Left is rediscovering, competitive federalism still matters. As explained by James Madison, the separation of state and national power is a "double security…to the rights of the people." The Constitution "extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects." That includes allocating electors based on a state's respective popular vote, and not the national popular vote.
I'm guessing I will not be invited to a NPV junket at any point in the near future. But the Electoral College, and by extension federalism, is not "doomed." In fact, both must be defended, whether that results in free drinks or not.
Jake Curtis is an associate counsel at the Wisconsin Institute for Law & Liberty's Center for Competitive Federalism and an adjunct professor of constitutional law at Concordia University Wisconsin.
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