Why the “National Popular Vote” scheme is unconstitutional

September 05, 2019

Why the “National Popular Vote” scheme is unconstitutional

• February 4, 2019
• Rob Natelson

This article first appeared in the Daily Caller.


The U.S. Supreme Court says each state legislature has “plenary”
(complete) power to decide how its state’s presidential electors are
chosen.


But suppose a state legislature decided to raise cash by selling its
electors to the highest bidder. Do you think the Supreme Court would
uphold such a measure?


If your answer is “no,” then you intuitively grasp a basic principle
of constitutional law—one overlooked by those proposing the “National Popular Vote Compact” (NPV).


NPV is a plan to change how we elect our president. Under the plan,
each state signs a compact to award all its electoral votes to the
presidential candidate who wins the national popular vote. The compact
comes into effect when states with a majority of presidential electors
sign on.


In assessing the constitutionality of NPV, you have to consider some
of its central features. First, NPV abandons the idea that presidential
electors represent the people of their own states. Second, it discards
an election system balanced among interests and values
in favor of one recognizing only national popularity. That popularity
need not be high: A state joining the NPV compact agrees to assign its
electors to even the winner of a tiny plurality in a multi-candidate
election.


Third, because NPV states would have a majority of votes in the
Electoral College, NPV would effectively repeal the Constitution’s
provision for run-off elections in the House of Representatives.


Fourth, NPV requires each state’s election officer to apply the vote
tabulations certified by other state election officers—even if those
tabulations are known to be fraudulent or erroneous.  Indeed, NPV would
give state politicians powerful incentives to inflate, by fair means or
foul, their vote totals relative to other states.


Don’t changes that sweeping require a constitutional amendment?


In answer to this question, NPV advocates point out that the Constitution seemingly gives state legislatures unlimited authority to decide how their electors are appointed. They further note that the Constitution recognizes
the reserved power of states to make compacts with each other. Although
the Constitution’s text requires that interstate compacts be approved
by Congress, NPV advocates claim congressional approval of NPV is not
necessary. They observe that in U.S. Steel v. Multistate Tax Comm’n
(1978) the Supreme Court held that Congress must approve a compact only
when the compact increases state power at the expense of federal power.


NPV advocates may be wrong about congressional approval. It is unclear that the justices would follow U.S. Steel’s
ruling now. The Constitution’s language requiring congressional
approval is crystal clear, and the court today is much more respectful
of the Constitution’s text and historical meaning than it was in 1978.
Moreover, you can make a good argument that U.S. Steel requires
congressional approval for NPV because NPV would weaken federal
institutions: It would (1) abolish the role of the U.S. House of
Representatives in the electoral process and (2) alter the presidential
election system without congressional involvement. Furthermore, even the
U.S. Steel case suggested that compacts require congressional approval whenever they “impact . . . our federal structure.”


A more fundamental problem with NPV, however, is that with or without
congressional approval it violates a central principle of
constitutional law.


The Constitution recognizes two kinds of powers: (1) those reserved
by the Tenth Amendment in the states by reason of state sovereignty
(“reserved powers”) and (2) those created and granted by the
Constitution itself (“delegated powers”). Reserved powers are, in James
Madison’s words, “numerous and indefinite,” but delegated powers are
“few and defined.”


A state’s power to enter into a compact with other states is reserved
in nature, and it almost always involves other reserved powers, such as
taxation and water use. Such was the compact examined by the Supreme
Court in the U.S. Steel case.


As for delegated powers, the Constitution grants most of these to agents of the federal government. However, it also grants some to entities outside the federal government. Recipients include state legislatures, state governors, state and federal conventions, and presidential electors.


The scope of delegated powers is “defined” by the Constitution’s
language, construed in light of its underlying purpose and its
historical context. If state lawmakers or officers try to employ a
delegated power in a way not sanctioned by its purpose and scope, the
courts intervene.


For example, the courts often have voided
efforts to exercise delegated powers in the constitutional amendment
process in ways inconsistent with purpose or historical understanding.
This is true even if the attempt superficially complies with the
Constitution’s text.


Like a state legislature’s authority to act in the amendment process,
its power to decide how electors are appointed is a delegated one. In
exercising it, the legislature must comply with the overall purpose of
the presidential election system and the historical understandings
surrounding it. For example, the Founders, including those who approved
the 12^th amendment, designed the system to serve multiple
interests, not merely candidate popularity. And they conceived of an
elector as a person who acted on behalf of the people of his state—much
like a legislator, but with more limited functions.


In deciding how electors are appointed, state lawmakers may choose
among a range of procedures. But they have a constitutional duty to
choose a method consistent with the electoral system’s purpose and
design. Attempting to convert electors into agents of other states—like selling them to the highest bidder—would be an unconstitutional breach of public trust.

Electoral College Rules Made Simple (or, rather, less complicated)—2nd in a Series

September 05, 2019

Electoral College Rules Made Simple (or, rather, less complicated)—2nd in a Series

• November 30, 2017
• Rob Natelson

The first article
in this series surveyed the problems the framers encountered in
crafting a mode for choosing the president and how they addressed those
problems. This installment explains in detail the Constitution’s
compressed and technical language as it was understood after adoption of
the Twelfth Amendment in 1804. Variations between the original understanding and modern practice are noted in this article.


The Constitution initially provided that after the choice of the
president the person with the most electoral votes would become vice
president. This might be the second-highest electoral vote-getter, but
not necessarily: If the election was thrown into the House of
Representatives because no candidate had won a majority of the electoral
votes, the House could elect any of the five top vote getters. If the
House did not elect the top vote getter, then that person would become
vice president.


There was some sense behind this system. Many founders were concerned
about the risk of a “cabal”—informally organized political
intrigue—between the president and the powerful, relatively small
Senate. Installing the president’s leading rival as vice president, and
therefore as the Senate’s presiding officer, might check that risk.


Nevertheless, chaos during the 1800 election persuaded the founding
generation to add the Twelfth Amendment, providing that electors would
vote separately for president and vice president. The Constitution’s
resulting structure is as follows:


* Article II, Section 1, Clause 1: term of office.

* Article II, Section 1, Clause 2: appointment, number, and qualification of electors.

* The Twelfth Amendment: manner of holding election. (This phrase is explained below.)

* Article II, Section 1, Clause 4: time of election.

* Article II, Section 1, Clause 5 & Twelfth Amendment: qualifications of president and vice president.


Rather than treat each of these in order, it is easier to follow the structure of election rules as the founding generation thought about them.


During the founding era, election rules were said to fix the manner of election (sometimes called the “mode of election”). This term embraced the following five categories:


(1) The time of election, including (a) the term of office and (b) the time for voting.

(2) The qualifications of the voters.

(3) The qualifications of the candidates.

(4) The place of election, including (a) the boundaries of election districts and (b) the location of the polls.

(5) The manner of holding elections. The framers coined this phrase
to cover all the administrative details in the “manner of election”
other than time, qualifications, and place. It included the required
margin of victory (majority or plurality), how votes were cast, oaths,
vote counting and reporting, and election-day conduct. “Manner of
holding” also embraced the number of election stages—one stage for
direct elections, and two or more for indirect elections.


The “manner of holding elections” did not include the kind of omnibus
campaign regulation Congress presumes to impose today. Campaign
regulation was a state power. The modern Supreme Court says that “manner of holding” includes campaign regulations, but the court has never adequately supported this assertion.


In both Britain and America, the manner of election was governed by
statute under the general police power. However, the Constitution did
not leave the entire manner of election to either the state legislatures
or to Congress. The Constitution created a two-or-three stage
presidential election system and then prescribed at least some rules for
each stage.


Time of election. Article II, Section 1, Clause 1
specifies that the terms of the president and vice president are four
years. (This was supplemented by the Twentieth Amendment,
which fixed days of beginning and ending.) Otherwise, the timing of
elections is left to state law, except that Congress may fix a uniform
day for choice of electors (Stage #1) and for their balloting (Stage
#2).


Qualifications of Voters. For Stage #1, the
Constitution allows the states to set voter qualifications, although
this rule has been modified by several constitutional amendments and a
host of Supreme Court rulings. The agency for decision on this and other
issues is the state legislature.  Founding-era practice (as well as subsequent court decision)
tells us that this use of “legislature” refers to the state entire
lawmaking apparatus, including any roles for the governor or popular
referenda. Thus, the use of “legislature” in the case of elections is
different from the use of that word in some other parts of the
Constitution, such as Article V, where it means only the representative
assembly itself.


The Constitution also left to the state legislatures the
qualifications for presidential electors, except that they cannot be
members of Congress or federal officeholders. Stage 3 is the
congressional run-off, so the voter qualification at this stage is to be
a member of the House (to vote for president) or the Senate (to vote
for vice president).


Qualifications of Candidates. The president and vice
president must be natural born citizens, residents of the U.S. for the
prior 14 years, and at least 35 years old. Unlike lawmakers in most
states, the framers specified no qualifications based on property, race,
or gender. This was a conscious decision.


The place of election. With one exception, the place
of election at Stages 1 and 2, was left to the state legislatures.
(After the Constitution was ratified, the states adopted a mixture of
at-large and district voting.) The exception was that presidential
electors were to meet in their respective states rather than congregate
together. That was to minimize the risk of mob or “stampeding” behavior.
Stage 3 congressional runoffs are held in the national capital.


The manner of holding elections. State legislatures
generally determine Stage 1 procedures. They may reserve the power to
choose electors or delegate it to the people. They decide whether the
rule of decision is a majority or a plurality. One writer
has suggested that the founders expected the states to adopt a majority
rule, but I have not found much evidence to support this.


Similarly, the states determine the method of voting. During the
founding era, there were four in common use: (1) viva voce, (2) show of
hands, (3) polling (in which voters filed past a registrar, verified
their identity, and stated their preference), and (4) “ballot”—which
invariably meant secret ballot.


Most Stage 2 procedures also are set by state law, but the
Constitution limits state discretion more than at Stage 1. The electors’
voting must be by ballot. Each elector votes once for president and
once for vice president; of those two candidates at least one must from
another state. The latter rule was adopted for two reasons: (1) to
prevent large states from dominating the electors and (2) the theory
that the second choice after a “favorite son” was likely to be the
better candidate.


The electors are supposed to count the ballots, list how many votes
for each candidate, sign and certify the lists, and transmit them to the
president of the Senate at the national capital. At a joint session of
Congress, the president of the Senate opens the certificates and
arranges for a count. The rule of victory at this level is a majority of
electors appointed. If no candidate receives a majority, a
congressional run-off is necessary.


The Constitution prescribes Stage 3 run-off procedures in even
greater detail. If it appears that no candidate for president commands a
majority of electoral votes, the House of Representatives must “choose
immediately, by ballot, the President” from among the top three vote
getters. (The Twelfth Amendment changed the number from five to three.)
The quorum is at least one Representative present from each of two
thirds of the states. Voting is by state delegations, on a one state/one
vote basis. Election is by a majority of all states, not merely a
majority of states present.


If no candidate wins a majority of the electors for vice president,
the Senate selects from the top two candidates, with a quorum of two
thirds and the rule of victory being a majority of “the whole number of
Senators.”


Each part of this intricate system was adopted for good reasons. For
example, voting by states in the House prevents a few populous states
from dominating the election. The quorum of two thirds and the
majority-to-win requirement assures that the victor enjoys wide popular
support.

Why Did the Framers Create the Electoral College?—1st in a Series

September 05, 2019

Why Did the Framers Create the Electoral College?—1st in a Series

• November 26, 2017
• Rob Natelson
•  

Colorado
went Democrat in the last presidential election. But three of those
elected as presidential electors wanted to vote for someone other than
Hillary Clinton. Two eventually cast ballots for Clinton under court
order, while one—not a party to the court proceedings—opted for Ohio
Governor John Kasich, a Republican. After this “Hamilton elector” voted,
state officials voided his ballot and removed him from office. The other electors chose someone more compliant to replace him.


Litigation over
the issue still continues, and is likely to reach the U.S. Supreme
Court. Moreover, President Trump’s victory in the Electoral College,
despite losing the popular vote, remains controversial. So it seems like
a good time to explore what the Electoral College is, the reasons for
it, and the Constitution’s rules governing it. This is the first of a
series of posts on the subject.


The delegates to the 1787 constitutional convention found the
question of how to choose the federal executive one of the most
perplexing they faced. People who want to abolish the Electoral College
usually are unfamiliar with how perplexing the issue was—and still is.


Here are some of the factors the framers had to consider:


* Most people never meet any candidates for president. They have very
little knowledge of the candidates’ personal qualities. The framers
recognized this especially would be a problem for voters considering
candidates from other states. In a sense, this is less of a concern
today because, unlike in 1787, we have mass media through which
candidates can speak directly the voters. In other ways, however, it is more
of a concern than it was in 1787. Our greater population renders it
even less likely for any particular voter to be personally familiar with
any of the candidates. And, as I can testify from personal experience,
mass media presentations of a candidate may be 180 degrees opposite
from the truth. One example: media portrayal of President Ford as a
physically-clumsy oaf. In fact, Ford had been an all star athlete who remained physically active and graceful well into old age.


* Voters in large states might dominate the process by voting only for candidate from their own states.


* Generally speaking, the members of Congress would be in a much
better position to assess potential candidates than the average voter.
And early proposals at the convention provided that Congress would elect
the president. However, it is important for the executive to remain
independent of Congress—otherwise our system would evolve into something
like a parliamentary one rather than a government of three equal
branches. More on this below.


* Direct election would ensure presidential independence of
Congress—but then you have the knowledge problem itemized above. In
addition, there were (and are) all sorts of other difficulties
associated with direct election. They include (1) the potential of a few
urban states dictating the results, (2) greatly increased incentives to
electoral corruption (because bogus or “lost” votes can swing the
entire election, not just a single state), (3) the possibility of
extended recounts delaying inauguration for months, and (4) various
other problems, such as the tendency of such a system to punish states
that responsibly enforce voter qualifications (because of their reduced
voter totals) while benefiting states that drive unqualified people to
the polls.


* To ensure independence from Congress, advocates of congressional
election suggested choosing the president for only a single term of six
or seven years. Yet this is only a partial solution. Someone elected by
Congress may well feel beholden to Congress. And as some Founders
pointed out, a president ineligible for re-election still might cater to
Congress simply because he hopes to re-enter that assembly once he
leaves leaves office. Moreover, being eligible for re-election can be a
good thing because it can be an incentive to do a diligent job. Finally,
if a president turns out to be ineffective it’s best to get rid of him
sooner than six or seven years.


* Elbridge Gerry of Massachusetts suggested election by the state
governors. Others suggested election by state legislatures. However,
these proposals could make the president beholden to state officials.


* The framers also considered election of the president by electors
elected by the people on a strict population basis. Unless the Electoral
College were very large, however, this would require electoral
districts that combined states and/or cut across state lines. In that
event, state law could not effectively regulate the process. Regulation
would fall to Congress, thereby empowering Congress to manipulate
presidential elections.


* In addition to the foregoing, the framers had to weigh whether a
candidate should need a majority of the votes to win or only a
plurality. If a majority, then you have to answer the question, “What
happens if no candidate wins a majority?”On the other hand, requiring
only a plurality might result in election of an overwhelmingly unpopular
candidate—one who could never unite the country. The prospect of
winning by plurality would encourage extreme candidates to run with
enthusiastic, but relatively narrow, bases of support. (Think of the
possibility of a candidate winning the presidency with 23% of the vote,
as has happened in the Philippines.)


The delegates wrestled with issues such as these over a period of
months. Finally, the convention handed the question to a committee of
eleven delegates—one delegate from each state then participating in the
convention. It was chaired by David Brearly, then
serving as Chief Justice of the New Jersey Supreme Court. The committee
consisted of some of the most brilliant men from a brilliant
convention. James Madison of Virginia was on the committee, as was John Dickinson of Delaware, Gouverneur Morris of Pennsylvania, and Roger Sherman of Connecticut, to name only four of the best known.


Justice Brearly’s “committee of eleven” (also called the “committee
on postponed matters”) worked out the basics: The president would be
chosen by electors appointed from each state by a method determined by
the state legislature. It would take a majority to win. If no one
received a majority, the Senate (later changed to the House) would
resolve the election.

Liberals' National Popular Vote Scheme Is Unconstitutional and Dangerous

By Brian S. Messenger

As of now, fourteen states have passed the National Popular Vote Interstate Compact (NPVIC), which attempts to eliminate the Electoral College as set forth in the United States Constitution.  There have been many good articles written about the legality of interstate compacts to achieve the desired National Popular Vote goals.  The author does not need to rehash all of those problems but believes that there are three additional ways that the NPVIC is both unconstitutional and dangerous.
Constitutional Flaw #1: Non-Republican Form of Government
Article IV, Section 4 of the United States Constitution says in part that  "[t]he United States shall guarantee to every State in this Union a Republican Form of Government."  The United States is a constitutional republic, where people elect their senators and representatives at the national level.  At the state level, this is copied by every state except for Nebraska, which has a unique unicameral Legislature.  A Republican form of government, by its definition, means that people elect representatives to represent them in running the government.  This is done so that the people are not encumbered with the daily operations and voting to run the state or federal government.
A fundamental problem with the NPVIC is that it is inherently not a republican form of government for a specific state to select that state's Electors.  Once a state Legislature decides to ask its citizens their preference through a popular vote, there must be a rational basis as to how the vote of the state's citizens is used to select that state's electors.  It is not rational that the people's decision could be overruled by the votes of citizens of unrelated states.  The following comparison is between two states in the NPVIC who are at the extremes of the Popular Vote Range for the 2016 election.
Vermont has three electoral votes in our existing system and cast 315,067 votes for president in 2016.  This constituted 0.23% of the total votes in the nation.  Under the NPVIC, Vermont will give other states 99.77% of the power to select its state's electors for president instead of maintaining the 100% control it presently has.  Presently, there is a total pool of 538 electors, and 0.23% constitutes 1.2 electors.  Vermont has irrationally thrown away its automatic control of three Electoral Votes for an effective control of 1.2 electoral votes.
At the other extreme is the state of California, which has 55 electoral votes in the present system.  In the 2016 presidential election, there were 14,181,595 votes cast for president in California, which constituted 10.4% of the nation's total votes.  California will give other states 89.6% of the power to select its state's electors for president instead of maintaining the 100% control it presently has.  California has traded 55 electoral votes for an effective 56 electoral votes.  At least California's decision would result in a higher number of effective electoral votes for the State, but it would still hand 89.6% of the decision to other states.
Legislatures of small states are committing a form of legislative malpractice by joining the NPVIC.  The NPVIC is the latest in a 250-year history of schemes where the populous states are trying to bully and dominate the small states in the country.  Under the guise of the perceived unfairness of specific presidential election outcomes, the large states are trying to fool the small states into giving up the finely balanced power they were guaranteed when they joined the United States.  In addition, as different states implement different rules for voting, all other states would suffer the corruption of the national popular vote by sanctuary states.  Those states allow non-citizens to vote in some elections and/or make it likely that errors will result in ineligible people voting in presidential elections. 
Constitutional Flaw #2: Popular Vote Coercion
In 1824 (the 10th presidential election in U.S. history), there were four candidates.  More importantly, there were many ways that states selected their electoral votes.  In the 1824 election, the states of Delaware, Georgia, Louisiana, New York, South Carolina, and Vermont did not have any popular votes for president.  At that time, these states had a total of 71 electoral votes out of a total of 261.  These states used various approaches to apportion their electors in the manner they felt best.  For instance, New York had electors vote for the following candidates: Andrew Jackson (1), John Quincy Adams (26), Henry Clay (4), and William Crawford (5).
States have significant flexibility in choosing their electors.  A state could have strong antiwar conscientious objector feelings and decide that it is morally wrong to select the commander in chief of the Armed Forces.  In this case, the Legislature could devise a random process to select electors, or select none at all, so as not to trample on the feelings of their citizens.  Another state could believe strongly in astrology and think birth sign is the most important factor in determining a commander in chief.  Its Legislature could apportion electors using a formula based on the birth signs of the candidates.  Though the author hopes these seem extreme to the reader, it could be argued that they have a rational basis from the perspective of their state legislatures.
Many states have used methods other than the popular vote to select their presidential electors in our nation's history.  The NPVIC would force states to hold popular votes for president or lose power within our constitutional republic.  This coercion would occur since unless states held a popular vote, and their votes were added into the national total, they would lose power relative to the states in the NPVIC.  In the year 2000, the U.S. Supreme Court re-highlighted the right of state legislatures to select electors through various means in Bush v. Gore.  These approaches included having the state legislatures take back the ability to choose electors from the people.
Constitutional Flaw #3: Removal of Critical Safety Mechanism
In the last 13 presidential elections, there have been two where a third-party candidate received more than 10% of the votes: 1968-Wallace (13.5%) and 1992-Perot (18.9%).  There were an additional two presidential elections where a third-party candidate received more than 5% of the vote: 1980-Anderson (6.6%) and 1996-Perot (8.4%).  In addition to the earlier described 1824 election, the 1860 election in the lead-up to the Civil War had four major candidates.  In the 1860 Election, the percentages of the popular vote were as follows: Lincoln (39.8%), Douglas (29.5%), Breckinridge (18.1%), and Bell (12.6%).  The electoral vote percentages that showed popularity by State were very different: Lincoln (180), Douglas (12), Breckinridge (72), and Bell (39).  The electoral votes show that even though Douglas had almost 30% of the national popular vote, he was the least preferred candidate when states selected their electors.
As the number of candidates for election increases, the likelihood of having an extreme candidate receive the most popular votes goes up dramatically.  Germany held a federal election in November of 1932, and the results were as follows: National Socialist German Workers Party (33.1%), Social Democratic Party of Germany (20.4%), Communist Party (16.9%), Centre Party (11.9%), and the German National People's Party (8.3%).  If a fifth major candidate had run for president in the United States in 1824 or 1860, the percentages could have appeared similar.  If the reader hasn't figured it out yet, the leader of the National Socialist German Workers Party was Adolf Hitler.  Even though fewer than one third of all German voters selected the National Socialist German Workers Party, the NPVIC approach would have automatically made Adolf Hitler president with no safety mechanism.
The Electoral College is only part of the genius of the system our founders created to select a president.  There is a second step involved if no candidate receives a majority of the electoral votes.  This has happened twice (1800 and 1824), but the 1824 case is the more illustrative.  When no candidate receives a majority of the electoral votes, the election goes to the United States House of Representatives.  Each state gets a single vote to choose among the top three recipients of electoral votes, as specified by the 12th Amendment to the U.S. Constitution.  In 1824, Andrew Jackson had the most popular votes, and the most electoral votes, but they were not a majority.
In 1824, Andrew Jackson was a political outsider who was eyed with distrust in Washington.  When the Election of 1824 went to the U.S. House of Representatives, the states were allowed to identify the best compromise candidate they could find from the top three electoral vote recipients.  The U.S. House voted: John Quincy Adams (13),  Andrew Jackson (7), and William Crawford (4).  John Quincy Adams, the son of our country's second president, was elected president by the House of Representatives in 1824.  In spite of losing the 1824 election in the House of Representatives, Andrew Jackson came back to win the presidency outright in the Electoral College in 1828 and 1832, and he is honored on the $20 bill.
Conclusion
In the 13 presidential elections that the author can remember, he has felt emotions ranging from being thrilled, being happy, being worried, and being disgusted with the results.  Since we live in a great country, where honest Americans can have different views, the author is sure that many people felt differently.  Unfortunately, the fact that someone doesn't like who wins specific elections is no excuse for trying to dramatically change the genius of our presidential election system.  This paper shows how the NPVIC would not only be unconstitutional in three key ways, but would potentially be dangerous to our nation.

"Fixing" Our Democracy Would Only Make Matters Worse

"Fixing" Our Democracy Would Only Make Matters Worse

September 05, 2019

"Fixing" Our Democracy Would Only Make Matters Worse.

Aug 1st, 2019 5 min read

COMMENTARY BY

John W. York, Ph.D.

Policy Analyst

John is a policy analyst at The Heritage Foundation.

Each of those proposals would harm the integrity of the constitutional republic that our Founders so painstakingly crafted. Doug Armand/Getty Images

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During Tuesday night’s Democratic presidential debate, Pete Buttigieg proposed a raft of supposed “reforms” that have, until recently, been the provenance of fringe groups and politicians such as D.C.’s nonvoting Democratic congresswoman, Eleanor Holmes Norton.
The South Bend, Indiana mayor said:

When I propose the actual, structural, democratic reforms that might make a difference—end the Electoral College, amend the Constitution if necessary to clear up [the Supreme Court ruling in] Citizens United, have D.C. actually be a state, and depoliticize the Supreme Court with structural reform—people look at me funny.

Those funny looks are well-deserved. Each of those proposals would harm the integrity of the constitutional republic that our Founders so painstakingly crafted.

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1. The Electoral College.
Ending the Electoral College and moving to a national popular vote for presidential elections gained momentum on the left immediately after President Donald Trump’s victory.
While the idea of a national popular vote may seem appealing, it would be a disaster in a country as large and diverse as ours.
If we did away with the Electoral College, the trail to the White House would run through New York City, Los Angeles, and Chicago, and that’s about it.
Popular elections push politicians to focus on the most densely populated areas. With limited resources and time, it just makes sense to camp out where the biggest concentrations of voters live.
Granted, most states get more or less ignored under the Electoral College system. Generally, candidates home in on tossup states, such as Ohio and North Carolina. But it’s much better for candidates to focus on these swing states than major metropolises alone.
Because these states are typically won by such small margins, candidates journey throughout the state, visiting both major cities and smaller towns, while hitting plenty of coffee shops and greasy spoons along the way.
Furthermore, by definition, “swing states” shift from election to election. It was not that long ago that dark blue California and deep red Arkansas were tossup states. With a national popular vote, big coastal population centers would dominate electoral politics election after election and “flyover country” would be continually bypassed.
2. Overturning Citizens United
The call for a constitutional amendment overturning Citizens United in order to prevent American citizens and corporations from spending money on political speech is another misbegotten anti-speech idea that is, nonetheless, common among progressives.
Immediately after the Supreme Court ruled that citizens have a right to make unlimited independent expenditures—that is, expenditures that are not coordinated with any political party politician’s campaign—undoing Citizens United became a fixation on the left. But the Supreme Court got it right.
The connection between the freedom of speech and the freedom to reach an audience—which typically costs money—is clear. If freedom of speech does not include a right to broadcast our words, the First Amendment protects little more than our ability to mumble quietly to a small circle of friends.
Attempts to eliminate independent expenditures and super PACs also rests on the faulty assumption that political speech funded by one set of corporations and individuals (the ones who donate to super PACs) is perverse, while political speech funded by another set of corporations and individuals (the ones who own TV stations and newspapers) is just fine.
The dichotomy is senseless. Why should a puff piece on a candidate in The Washington Post (owned by Amazon CEO Jeff Bezos) be considered journalism, where no campaign finance rules apply, while a TV spot paid for by a super PAC funded by another CEO and praising another candidate is an electioneering communication subject to federal law?
3. Making Washington, D.C., a State
Statehood for the District of Columbia would not affect presidential elections, since D.C. residents already vote for president, but it would allow the District to exert outsized influence over national politics.
The Founding Fathers created the District of Columbia because they understood that if they located the national capital in a state, that state would have extraordinary control over national politics, since nearly every federal officeholder would live and work there.
Such a state could use law enforcement officers and permitting offices, and leverage everything from tax policy to zoning ordinances to extort political favors and make life a living hell for political enemies.
Because the District is not a state, and, thus, does not have sovereign authority within its borders, Congress can strike down D.C. policies that interfere with the functioning of the federal government.
However, if the District were made a state, officeholders selected from across the country would be directly affected by its policies and would have little recourse to challenge them.
For those who think the D.C. government would be above playing politics in this way, consider a recent decision by Washington’s Alcoholic Beverage Control Board to hear an obviously frivolous challenge to the Trump Hotel’s liquor license (on the grounds that he does not meet the city’s “good character” requirement).
4. "Depoliticizing" the Supreme Court
The call to “depoliticize” the Supreme Court sounds fine at first blush, until you realize it would do exactly the opposite.
Buttigieg, former Rep. Beto O’Rourke of Texas, and several members of Congress—including Rep. Alexandria Ocasio-Cortez, D-N.Y.—have advocated increasing the number of justices on the Supreme Court from nine to 15.
It’s not as though 15 justices would be able to discern the meaning of the Constitution with any more clarity or hear any more cases than nine would.
So why change the composition of the court? The motivations aren’t particularly mysterious. Whoever holds the White House during such an expansion could handpick six justices.
In so doing, a progressive president could ensure progressive rulings for a generation to come. The idea is so radical and transparently partisan that even Justice Ruth Bader Ginsburg, the darling of the left, thinks it’s a bridge too far.
Let’s hope we hear more sensible policies for reform in future debates. While most would agree our politics are badly broken, Buttigieg’s prescriptions would do much more harm than good.

September 05, 2019

Progressive "Federalism" Makes a Mockery of the Founders’ Vision

Apr 16th, 2018 6 min read

COMMENTARY BY

John W. York, Ph.D.

Policy Analyst

John is a policy analyst at The Heritage Foundation.

Key Takeaways

Republican states locked horns with President Obama often — Democrats’ efforts are unprecedented in scale and detrimental to constitutional government.

Democratic attorneys general have sued the president over a temporary travel ban halting citizens of eight countries identified as potent sources of terrorism.

Republican state attorneys general are pressuring the administration to enforce the law in a policy area for which the federal government is solely responsible.

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Since President Donald Trump took office, Democrats seem to have developed a newfound fondness for federalism. Democratic state attorneys general have challenged the president on everything from the administration’s travel ban, to a presidential directive narrowing Obamacare’s birth-control coverage requirement, to efforts to identify and deport violent criminals in the United States illegally.
While all this may look familiar — after all, Republican states locked horns with President Obama often — Democrats’ efforts are unprecedented in scale and detrimental to constitutional government. By the end of Trump’s first year in office, Democratic states had already brought 35 lawsuits against his administration. Over the course of his eight years in office, Republicans brought only 46 lawsuits against Obama’s administration.
Democratic attorneys general, pundits, and plaintiff’s lawyers claim that the reason for this dramatic uptick in legal obstruction is President Trump’s supposed disregard for the Constitution. But this is not the case. Many of the lawsuits emanating from blue-state capitals are not based on any tenable interpretation of the Constitution or any relevant federal statute.

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For instance, several blue-state attorneys general claimed that the president lacked authority to bypass environmental regulations to expedite the construction of a border wall, even though a 2005 law gives the Homeland Security secretary authority to do just this. The case was dismissed.
Right now, three Democratic governors are preparing to bring a federal lawsuit challenging a provision in the recently passed tax overhaul that would limit the deductibility of state and local taxes. They claim this deduction limit violates the equal-protection rights of people living in blue states, since no red-state government has imposed taxes that surpass the deductibility cap. This is an absurd reading of the 14th Amendment. According to the Tax Foundation, this shot-in-the-dark case “will almost certainly fail.”
These threadbare legal arguments are a thin veil for the actual motives of Democratic lawmakers and lawyers. These state officials apparently see themselves as part of the resistance. Burying the president’s agenda under a mountain of paperwork is job No. 1. Defending the Constitution is not only subordinated to this goal, but actually sacrificed in service of it.
Progressive “Federalism”
Indeed, the unprecedented legal campaign being waged by Democratic state officials against the Trump administration will actually diminish the authority of states to establish their own policies within their own borders. This is because, in regard to domestic policy, Democratic governors, legislators, and attorneys general are often calling for more federal intervention, not less.
For instance, in New York v. Pruitt et al., Democratic attorneys general tried to force the Trump administration to keep in place an Obama-era regulation allowing the Environmental Protection Agency to police wetlands, mudflats, wet meadows, and “prairie potholes” as if they were navigable “waters of the United States.” In Washington v. Trump, blue-state attorneys general sued the administration over new rules that would allow religious business owners more discretion as to what medical procedures to cover in their employer-funded health-insurance policies. With Maryland, et al. v. U.S. Department of Education, Democratic attorneys general are attempting to expedite the enforcement of new regulations on for-profit colleges.
To the extent that Democratic state governments have tried to block — rather than prompt — federal action, it has been in areas where the federal government has clear constitutional authority to act. Democratic attorneys general have sued the president over a temporary travel ban halting citizens of eight countries identified as potent sources of terrorism, despite the fact that national security is a core federal function and the president has clear statutory authority to act.
California’s recent immigration laws, now being challenged in court, are perhaps the clearest example of a state attempting to obstruct the federal government’s discharge of its enumerated constitutional duties. Although the federal government is given sole authority to establish a “uniform rule of naturalization,” California has made it illegal for state officials and private-sector employers to voluntarily aid the federal government’s efforts to identify and deport those here illegally.
While the Supreme Court bars the federal government from commandeering state law-enforcement officials to enforce federal law, it does not give states authority to prosecute individuals who voluntarily comply with federal laws. Here too the motivation appears to be resistance. As President Pro Tempore of the California Senate Kevin de León said: “California is building a wall of justice against President Trump’s xenophobic, racist, and ignorant immigration policies.”
Constitutional Federalism
By contrast, when Republicans challenged Obama-era statutes and regulations, it was generally to the end of limiting, rather than promoting, federal action in domestic-policy areas that the Founders imagined would be left to the states. Republican state attorneys general and lawmakers sued the Obama administration over the Environmental Protection Agency’s over-broad interpretation of the Clean Water Act, the Affordable Care Act’s individual mandate, and a directive on transgender bathroom use in public schools, to name a few.
Democratic efforts to craft the nation’s defense and immigration policy from the few state capitals they still control does not reflect the Founders’ federalism. The Founders created a system of dual sovereignty wherein the federal government would deal with a small and well-defined set of truly national issues such as foreign affairs, trade, monetary policy, and immigration, while the states would essentially handle everything else. This is the version of federalism that Republican state governments attempted to uphold during the Obama administration.
In fairness, Republican attorneys general are also challenging the Trump administration on immigration policy. Ten Republican states are currently preparing a lawsuit to end the protected status of so-called DREAMers: children whose parents brought them to the United States illegally while they were minors. Republicans also challenged an Obama-administration executive order that deferred prosecution of the parents of DREAMers.
But there is a big difference between these lawsuits and the actions of blue-state attorneys general. Republican state attorneys general are pressuring the administration to enforce the law in a policy area for which the federal government is solely responsible. Unlike environmental policy or transgender bathroom preferences, states cannot establish immigration policy on their own. They must rely on the federal government to do this, and, if the federal government does not act, or if a president acts unilaterally beyond his constitutional or statutory authority, they have little recourse other than to bring a lawsuit.
Prompting the federal government to properly discharge functions the Founders intended it — and only it — to carry out is consonant with federalism rightly understood. Attempting to usurp the federal government’s enumerated powers, or prompt the federal government to overstep the boundaries the Founders established for it, does not.
What Democratic state governments are doing today has nothing to do with the Founders’ federalism, as its foremost champions freely admit. Yale Law School professor Heather Gerken, a champion of “progressive federalism,” has bluntly stated: “This is not your father’s federalism. This is a completely different federalism.” In this, she is absolutely correct.
While the Founders certainly did not anticipate a boundless and unchecked federal power, they also did not anticipate a federal government ground to a halt by court filings as it attempts to discharge clear constitutional authority. As Attorney General Jeff Sessions correctly pointed out, “There is no nullification. There is no secession. Federal law is the supreme law of the land. I would invite any doubters to go to Gettysburg or to the tombstones of John C. Calhoun and Abraham Lincoln. This matter has been settled.”

What the Electoral College Can Teach Us About the Constitution

October 28, 2015

Trent England

Executive Vice President

The constitutional process for presidential elections is often misunderstood. That is unsurprising, since many of the Framers were at first unsure how it would work. Yet the history of the Electoral College—both its origin and its operation—offers lessons about the Constitution and how to defend it.
Principles vs. Pragmatism? The men who made the Constitution were both profoundly principled and fiercely pragmatic. Principles answer the question “Why?” but not “How?” The Framers considered many proposals before agreeing on the final language of Article II, Section 1, of the Constitution. The Electoral College gives the people a voice through state legislatures, which are empowered to decide how best to represent their own state in presidential elections. It is the Framers’ practical design to create both accountability and independence in the executive branch, in order to uphold and perpetuate what James Madison called “republican principles.”
Discovery or Invention? Thomas Jefferson was quick to disclaim invention when asked about the Declaration of Independence. Rather, he said, it stated “the common sense of the subject” and “the harmonizing sentiments of the day.” Probably the most inventive work of the Founders was the Articles of Confederation, which was based on political theorizing and failed. In the Constitution, the Framers returned to “experience”—their own and what they gathered from their intense studies of history—as “the oracle of truth.” The Electoral College is a part of the system of states, known as federalism, that the Framers arrived at after disregarding political theorists and relying instead on their own practical experience.
Our Role as Discoverers. What is remarkable about the Electoral College is that, over time and with just one slight change made by the Twelfth Amendment, it has worked even better than the Framers expected. Our state-based method of conducting a national election has forced candidates and their political parties to build more national and inclusive coalitions than would be otherwise necessary. Election fraud has been contained to individual states. Never has a nationwide recount been necessary. Every generation of Americans has a duty not merely to understand the Constitution and to obey it, but to learn from our experience and history.