John Ryder: Popular presidential vote subverts Constitution
John Ryder is a Republican National Committee member from Tennessee and legal counsel for the Republican National Committee
The proposal by some fellow Republicans for a "national popular vote (NPV) compact" is an example of what H.L. Mencken meant when he said, "For every complex problem there is a solution that is simple, clear and wrong."
The compact would subvert the Constitution by changing how we elect our president. Instead of forthrightly seeking to amend the Constitution by abolishing the Electoral College, the proposal bypasses the Constitution by creating a compact among some states that would bind all states.
Under the plan, the electoral votes of a state would be committed to the slate that is the "national popular vote winner" regardless of the vote within the state.
The Electoral College is part of an elaborate mechanism designed by the Founders to create interdependent centers of power, each balancing the excesses of the others. The Constitution balances the competing elements of our Republic: The membership of the House of Representatives is based on population. The Senate is based on equal representation by state.
This design balances the interests of large and small states.
The Electoral College mirrors this arrangement by giving each state electoral votes equal to its membership in the House plus its two Senators. Thus, California gets 55 electoral votes because of its large population, but no state, even Delaware, has fewer than three electoral votes. It reflects the Founders' compromise between large states and small states and between electing the president by Congress and electing the president directly by the people.
Bypassing the Electoral College through the proposed compact undermines that balance by effectually erasing states' boundaries along with those states' sovereignty.
On a practical level, the Constitution requires a successful candidate to assemble a winning coalition across a broad geographic spectrum, embracing both large and small states, rather than a narrow concentration of votes.
A popular vote, in contrast, does not require the candidate to have broad appeal. It would make it possible for a candidate to win without any majority but merely a plurality of the popular vote. The compact would require the states to determine the candidate with the "largest national popular vote" - not a majority. Thus, in a multicandidate race, the "largest national popular vote" could be obtained by a regional candidate with just 35 percent or 40 percent of the popular vote.
Under such an arrangement, presidential candidates would have no incentive to campaign anywhere except the major media markets in a few states. The country would, in essence, cede our presidential elections to the largest metropolitan areas, whose concerns are different from those of other areas of the country.
NPV would maximize the rewards of vote fraud in those large metropolitan areas. Under the Electoral College, an illegal vote only affects the outcome in one state; under the popular vote compact, an illegal vote would affect the national outcome.
What is illegal voting? Laws and procedures vary. In some states, convicted felons can vote while still in prison; in others, they must complete their sentence and apply for reinstatement.
Our system has proved remarkably stable for more than 200 years. Ours is the world's second-oldest written Constitution, after Iceland's. That is remarkably long for a governmental structure. Only the Civil War mars our record of political stability, but the breakdown in the system in 1861 did not occur because of the Electoral College.
The American Bar Association once called the Electoral College "archaic, undemocratic, complex, ambiguous and dangerous." These adjectives describe virtues of our constitutional system, not faults. It is archaic - not obsolete - and still serves us well. It is supposed to be undemocratic, to protect smaller states from tyranny by a few large states. We are a republic, not a democracy.
The complexity of the system prevents wild swings in popular sentiment from becoming wild swings in policy. It is ambiguous only in that it is subtle rather than simplistic. If it is dangerous, the alternative of NPV, with the voters of a few states binding the voters of the rest of the states, is much more dangerous.
The late New York Sen. Daniel Patrick Moynihan said of an earlier proposal to do away with the Electoral College: "It is the most radical transformation in our constitutional system that has ever been considered." Our constitutional method of electing presidents, balancing the state and federal governments, has served our nation well. It would be foolish and disingenuous to bypass the written Constitution, nominally keeping the Electoral College but nullifying its function.