Week of December 19, 2016
Tax Amnesty Program
Column: The Electoral College
Under that proposal, Pennsylvania would have reverted back to the method used at the founding of our Constitutional Republic: two electors (matching the number of our US Senators) would have gone to the statewide winner with the remainder proportionally determined, based upon congressional districts chosen by majority vote in each district. That bill didn’t pass.
Article II, Section 1 of the United States Constitution establishes how presidential electors are chosen: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
Presidents Washington, Adams, and Jefferson were all elected using this method. However, after Jefferson’s election in 1800 (which was determined by the US House of Representatives after he and his vice president, Aaron Burr, tied in Electoral College votes), states began changing their Electoral College processes. Proportional allocation was abandoned in favor of winner-takes-all.
Opponents at the time argued these changes would allow a majority party to suppress minority voices by giving all Electoral College votes to the candidate winning a majority of votes. They feared their votes would be meaningless. Today, only Nebraska and Maine use proportional voting.
Five times in our history, the winner of the Electoral College didn’t win the popular vote. In 1824, John Quincy Adams not only didn’t win the popular vote, he also didn’t get a majority in the Electoral College. Like Jefferson, he was elected by the US House.
Other candidates who lost the popular vote but won the Presidency through the Electoral College included: Rutherford B. Hayes (1876), Benjamin Harrison (1888), and George W. Bush (2000). However, Andrew Jackson ran again in 1828 and defeated President Adams. In 1892, Grover Cleveland, who lost to Harrison in 1884, also ran again and won to become the only non-consecutive two-term President.
The most recent election is the fifth time a candidate won the Electoral College but lost the popular vote, resulting in renewed calls to change and/or eliminate the Electoral College.
One plan is the “National Popular Vote,” where individual states enter into a compact to award all their respective electoral votes to whichever candidate wins the nationwide popular vote. According to National Popular Vote, 11 states have enacted laws to establish compacts.
Whether you support or oppose national popular vote, I believe such a change should be made by amending the US Constitution. The compact clause of the Constitution states: "no state shall, without the consent of Congress enter into any agreement or compact with another state, or with a foreign power." Various courts have ruled whenever federal supremacy is threatened, Congressional consent is required for a valid compact.
Failure to properly amend the Constitution will cause problems. It would likely be challenged and ultimately decided by the Supreme Court.
More importantly, for far too long the federal government has failed to follow the Constitution – especially the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
If you want to change the rules of the game, do it properly – and don’t do it after the fact.
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