By: Mark Glennon*
You probably know that many on the left don’t like how the nation elects presidents and that they would like to eliminate the Electoral College system. The elections in 2000 and 2016 still sting, which gave the presidency to George W. Bush and Donald Trump even though they lost the popular vote.
But did you know Illinois was among the first states to pass legislation that may well effectively abolish the Electoral College?
That the legislation is getting very close to the trigger point needed to accomplish that goal?
And that it passed in Illinois with Republican sponsorship?
It’s part of something called the National Popular Vote initiative, or NPV, and over 70% of the states needed for the NPV to become effective have now joined Illinois with similar legislation.
Here’s the background:
Critics of the current system, primarily on the left, think the president should be chosen through simple, majority national vote. In the Electoral College, however, states are represented just as they are in the United States Congress – one elector for each member of the House, which is determined by population, and two for every state, irrespective of population, as in the Senate.
That means smaller, conservative-leaning states get disproportionately large representation, as critics see things, to the detriment of bigger, liberal states like California, Illinois, New York and New Jersey.
NPV would override the current system by requiring all electors in the Electoral College from states that have joined NPV to cast their votes for the presidential candidate who wins the popular vote nationally. If Illinoisans, for example, voted one way but the national vote went to another candidate, Illinois’ electors would be required to vote for that other candidate, not whom Illinoisans chose.
However, NPV and the Illinois’ legislation do not become effective until the states that have joined are worth a total of 270 electoral votes. With that many states as members, NPV would hand an automatic victory to the national popular vote winner.
That threshold is approaching. Illinois joined NPV back in 2008. It was the third state to join. Colorado joined NPV last year, bringing membership to 16 states that hold a total of 196 electoral votes, or 73% of the 270 needed to become effective. The movement might suffer its first setback in November, however, when Colorado voters will consider whether to repeal its membership.
Status of NPV in each state is shown on NPV’s map below. It’s getting close.
Interestingly, the Illinois legislation under which the state joined NPV included then-Senator Kirk Dillard, a Republican, who now chairs the Regional Transit Authority. Dillard’s thinking is summarized in a video here.
I won’t attempt to summarize the debate surrounding NPV. That debate has received extensive national attention, though almost none in Illinois. The arguments in favor are nicely summarized on NPV’s website.
From my perspective, however, subverting the Electoral College would be a historic blunder. It works precisely as the Founders intended by mitigating the risk of a nation controlled by a few large states. The Founders didn’t believe in simple majority rule. They created a republic, which subordinated democratic rule to a range of other rights and considerations. A Delaware delegate at the 1787 Constitutional Convention said this, which still applies to small states:
“I do not, gentlemen, trust you. If you possess the power, the abuse of it could not be checked; and what then would prevent you from exercising it to our destruction?”
Nor will I detail the legal challenges NPV would face if it reaches the threshold to make it active. Most important among them would be a claim that NPV would effectively delete the constitution’s provisions on the Electoral College without going through the proper amendment process. It would also effectively nullify the constitution’s stated method for resolving run-off elections, which the Constitution says are to be decided by the House of Representatives.
Other legal objections to NPV would be based on the constitutional prohibition of compacts among the states not authorized by Congress. NPV is such a compact. Some scholars have also argued that NPV would violate the Voting Rights Act.
However, the United States Supreme Court has been clear that states should be allowed very wide latitude in determining how their electors are chosen and how they must vote. So, the outcome of court challenges to NPV, if it goes into effect, would be uncertain.
Abolishing the Electoral College, one way or another, is a high priority for the left. FiveThirtyEight did an analysis last month listing it among the most consistently pursued policies in states dominated by Democrats. Illinois Senator Dick Durbin would go further than NPV, and has introduced a constitutional amendment to do away with the Electoral College entirely. That effort, however, is far less likely to succeed than NPV.
Survival of the Electoral College depends on how remaining states will vote on NPV and what the courts would do with it.
UPDATE 1/17/20. The United States Supreme Court will take up a case, to be decided this Spring, on the issue of “faithless electors,” as described here. Though the case is not on NPV, the decision may shed light on the scope of states’ discretion to control electors.
*Mark Glennon is founder of Wirepoints.