PROJECT FORTRESS | JUNE 10, 2019
BY ALAN W. DOWD
Nevada is the latest state to sign on to the National Popular Vote Interstate Compact (NPV), a somewhat obscure movement that’s seeking a fundamental change to how the president is elected.
Rather than the current system whereby a state’s electoral votes are
awarded to the candidate who wins the most votes in that state, under
the NPV plan a state would pledge its electoral votes to the winner of
the national popular vote—even if that candidate didn’t win that
particular state. For example, under the NPV system, if Candidate A wins
the popular vote in Nevada but Candidate B wins the popular vote
nationally, Nevada’s electors would be assigned to Candidate B. So far,
the NPV plan has been enacted by 15 jurisdictions (14 states plus
Washington, D.C.) representing 189 electoral votes. NPV and the states
that have signed on say their plan “will go into effect when enacted by states possessing a
majority of the electoral votes—that is, enough to elect a president
(270 of 538).”
What’s all this have to do with faith, liberty and national security? More than meets the eye at first glance.
Legitimacy
Before answering that question, it’s important to spend a moment
discussing the current system for electing a president—and what this
system says about the United States.
At the heart of the NPV plan is a simple question with profound
implications: Is the United States a federal republic of 50 states or
just a gigantic democracy?
The Founders offered some guidance about this. “Each state, in
ratifying the Constitution,” Madison wrote in Federalist No. 39, “is
considered as a sovereign body, independent of all others.” The states,
according to Madison, are at least “partly…distinct and coequal.”
Importantly, Madison explained that “election of the president is to be
made by the states”—not by a national plebiscite.
The NPV plan, by contrast, “would guarantee the presidency to the
candidate who receives the most popular votes in the entire United
States,” NPV straightforwardly explains, ensuring that “every vote, in every state, will matter in every presidential election.”
But that’s not how the Founders envisioned the role and importance of states in electing a president.
Consider the text of the Twelfth Amendment, ratified in 1804, which
served to clarify the process of electing the president: If no candidate
obtains a majority of electoral votes, “the House of Representatives
shall choose immediately, by ballot, the president. But in choosing the
president, the votes shall be taken by states.”
Again, the will and voice of each state was considered important to
the Founders, so important that the system they created ensured that the
election of the president would reflect what the states wanted. In
other words, the presidential election is not so much a national
election, but rather 50 individual state elections (51 counting D.C.).
Underscoring the importance of each state, these elections are
administered not by some national election agency, but rather by
“sovereign” and “independent” bodies, to use Madison’s terms.
Thus, even when the Electoral College tally doesn’t reflect the
popular vote nationally, the Founders would argue that it’s not out of
line with the “popular will.” That’s because the Electoral College was
intended to reflect—and preserve—the importance of each state’s voice in
choosing a president. This system ensures a president with federal
legitimacy, which is to say, state-by-state legitimacy. The alternative,
a truly national election based on the popular-vote tally, would yield a
president with national legitimacy—to be sure—but a kind of legitimacy
that could come at the expense of federal legitimacy.
Consider these two kinds of political legitimacy in the context of
the 2016 election. Hillary Clinton could claim political legitimacy
because she won a larger share of the popular vote, though if critics of
the Electoral College are really concerned about the political-science
definition of legitimacy in a democratic system, it’s worth noting that no candidate won a majority of the popular vote: Hillary Clinton garnered 48 percent, Donald Trump
45.9 percent. For his part, Trump could claim political legitimacy
because he won 30 of 50 states, which is 60 percent of the states.
States decide presidential elections because the Founders wanted the
states to play a key role in the constitutional order they created.
Thus, in the election of 1876, Rutherford Hayes defeated Samuel Tilden
despite the latter’s substantial popular-vote majority. With four states
presenting two sets of electors apiece, neither candidate could reach
the required electoral-vote majority. Congress set up a commission to
decide the election. The commissioners chose Hayes, who, not
coincidentally, carried more states than Tilden (21-17).
Similarly, Benjamin Harrison, who lost the popular vote but won more
states than Grover Cleveland (20-18), won the election on the strength
of his Electoral College tally.
And in the election of 1824, John Quincy Adams was elected president
despite losing both the electoral vote and popular vote. Since Andrew
Jackson failed to amass the requisite electoral votes, the election was
thrown into the House, as prescribed by the Twelfth Amendment, where
Adams won 13 of 20 state delegations.
NPV and its supporters can call the Electoral College arcane or
anachronistic. But these examples underscore how important states are to
America’s election system and constitutional order. If the NPV movement
wants to change the way America elects the president, it needs to do so
through processes prescribed by the Constitution.
“The Electoral College process is part of the original design of the
U.S. Constitution,” as the National Archives concludes. “It would be
necessary to pass a Constitutional amendment to change this system.” And
that’s no easy task, which explains why opponents of the Electoral
College have rallied around NPV.
NPV argues that its plan “is Constitutional in that Article II,
Section 1 of the Constitution gives states the exclusive power to award
electoral votes as they see fit. The winner-take-all system isn’t
mentioned, recommended or promoted anywhere in the Constitution, and
there is no good reason to save it.”
Left unmentioned is the fact that Article II, Section 1 requires that
electors be appointed by “each state,” strongly suggesting that
electors reflect the will of the states they represent. The reality is
that NPV’s alternative of having states award their electoral votes
based on the national popular vote—with no regard for the vote within
each state—would render the Electoral College system and the states it
represents meaningless.
It’s worth noting here that the “anachronistic” system the Founders
crafted in the 18th century—based on the will and procedures of
semi-sovereign states—serves as an extra layer of protection against
21st-century threats. The Founders never dreamed of global information
networks or cyber-enabled influence operations, but by dispersing
political power across numerous state governments and creating a highly
decentralized electoral system that each state would administer in its
own way, the Founders gave us a kind of distributed defense against
Putin’s hackers.
Think about it: The highly diffuse nature of our election system—with
the electoral process governed not by some national agency, but rather
by dozens of states and 3,141 counties—exponentially
increases the difficulty a hostile power confronts in trying to alter
ballots and manipulate outcomes. Trying to break into that labyrinth of
paper ballots, punch-card ballots, computer ballots, mail-in ballots,
byzantine rules, and state and county turf battles is—blessedly—far more
difficult than hacking into a centralized national election bureau.
Indeed, even though there’s evidence Russia tried to penetrate local election systems in 2016, the Obama administration reported:
“We did not see anything that amounted to altering ballot counts or
degrading the ability to report election results…We see no evidence that
hacking by any actor altered the ballot count or…deprived people of
voting.”
Crisis
One critic of the NPV movement is Senate Majority Leader Mitch McConnell, who has warned that “When the national popular vote total is the way the president is
chosen, then every vote in America in every precinct in America would
become the subject for endless litigation.”
Indeed, the current system tends to quarantine confusion and chaos.
The disputed outcome in Florida in 2000, for example, spawned recounts
and dozens of lawsuits. But we forget that the outcomes were similarly
close in New Mexico, where Al Gore won by just 546 votes (0.06 percent);
Wisconsin, where Gore won by 0.2 percent; and Iowa, where Gore won by
0.3 percent. The recount was automatic in Florida, due to the state’s
election laws, while in those other states the trailing candidate had to
request a recount. George W. Bush did not do that.
A Bush-Gore type election under the NPV system, as McConnell worries,
could invite the trailing candidate to challenge vote tallies in every
precinct of every state. Just imagine an epidemic of Florida-style
recounts spreading across the country, perhaps delaying the
inauguration. That’s a recipe for “a catastrophic outcome” and “a
constitutional crisis,” McConnell warns, adding, “We’ve never had a situation where the president wasn’t sworn in by the date specified in the Constitution.”
Such chaos could trigger a foreign-policy crisis and even a military
crisis. And that’s where NPV unexpectedly intersects with issues of
faith and foreign policy.
The God of the Bible is deeply interested in order. Genesis tells us
God brought order out of chaos. Jeremiah says God “made the earth…and
gave it order.” Paul writes that “God is not the author of confusion”
and urges us to pray for “all those in authority that we may live
peaceful and quiet lives.” The implication: Government exists to keep
chaos at bay, promote order, and, in words every American should know by
heart, “insure domestic tranquility.”
The NPV plan opens up the possibility of coast-to-coast chaos the
morning after Election Day, chaos inside and across multiple levels of
government, and most worrisome, chaos on Inauguration Day. The current
system prevents that.
McConnel understands that an orderly presidential transition and
transfer of power is critical for America’s security and the world’s
stability—and has been ever since the Truman-Eisenhower handoff.
Presidents-elect and their incoming staffs—energized by victory,
confident in themselves, prone to confuse an ability to persuade voters
with an ability to cajole hostile regimes—seldom grasp the gravity of
what it means to lead the Free World, to command a vast
military-intelligence apparatus that serves as civilization’s first
responder and last line of defense, to carry the burden of the nuclear codes,
to absorb daily threat assessments about cyberattacks and genocides and
WMDs and terrorists, to be entrusted with the responsibility of
maintaining some semblance of international order.
Ignorance is bliss—for incoming presidents and indeed for most
Americans. Those grim realities of political transition seldom cross the
mind of the average American. It’s a mini-miracle that Inauguration Day
is just another day for Americans.
But departing presidents and their staffs—weathered, grayed, bruised
by the weight of leadership and worries of the world—grasp not only the
gravity of what the new administration is facing, but also that the
process and perception of the presidential transfer of power must be
smooth and seamless. If not, Inauguration Day could turn into a
nightmare.
America shouldn’t risk that on an extra-constitutional gambit like NPV.
A shorter version of this essay appeared in Providence.