Today’s Pontificate – There’s a movement to do this, you ask? Rather than trying the impossible and changing the amendment… some states agreed to a kind of ‘end run’ to make the popular vote count… some time in the future.
Somewhere in the vast recesses of my mind I recall having read about this years ago and until a recent op-ed article I read on the CNN site I had all but forgotten how far along this has gotten. For reference purposes the article is HERE, but I’ll include some highlights below.
Elie Honig, author of the op-ed, is a CNN legal analyst and former federal and state prosecutor.
Honig accurately points out that with all the jabbering about “getting rid” of the electoral process given the 2000 and 2016 elections were won by the person who did not win the popular vote, it’s not as easy as everyone thinks. In fact, if I may digress slightly here… much of the Trumplican fears (assigned by Trump) they believe in couldn’t materialize in a Biden administration without some similar, nearly impossible, change to the Constitution. To make ANY change to any Constitutional amendment Honig says this…
First things first: The Electoral College — the system by which each state casts votes for president based on its total number of US senators plus representatives — is memorialized in Article II of the Constitution. The only way to completely get rid of the Electoral College is to amend the Constitution, a laborious process that requires approval from two-thirds of the US Senate, two-thirds of the House of Representatives, and then ratification by three-fourths of all states — 38 of the 50 states. (There are other even more complex ways to amend the Constitution as well).
As a political and practical matter, there is virtually no chance of this happening; lesser-populated states, and the Republican party in general (which has lost the national popular vote in seven of the past eight elections) stand to lose too much.
In other words… any amendment change, even anything regarding the Second Amendment, or even “shredding the Constitution and going Socialist”) ain’t gonna happen too quickly, if at all. This is of course by design from the Founding Fathers. All this fear mongering means absolutely nothing… other than to Trump himself for controlling his base.
But let’s get back to this electoral “adjustment”. The Constitution says NOTHING regarding the state selection of electors, and only prescribes the process of the electoral college once the states certify their elector’s votes…. which we presume is the result of the local popular vote in some way. States are different in their application of electors. So back in the early 2000’s a number of states, 16 to date since 2006, have signed on to the “National Popular Vote Interstate Compact”. Honig presents this measure this way…
Perhaps recognizing the difficulty of amending their laws, several states have undertaken an effort called the National Popular Vote Interstate Compact. This set of proposed laws takes effect only if and when adopted by a group of states that collectively carry the 270 electoral votes necessary to win the presidency. Currently, it has been adopted by 16 states (including Washington, DC) carrying 196 electoral votes, so they’ve got a ways to go.
This Compact even has a website to promote understanding of the anticipated process… HERE. I’ve presented their one page explanation below… but I encourage going to the links, especially the MYTHS. Keep in mind that this does nothing toward eliminating or invalidating the Constitutional electoral process. In fact, I am NOT promoting the concept specifically other than to present it as a creative alternative toward making the popular vote count more.. or, better.
This replaces nothing in our election process. I like the out-of-the-box approach to solve a problem… and apparently 16 states so far also find it of value. But if it’s taken this long to garner passage in 16 states… none of this is going to happen overnight.
Honig even makes the observation…
On a practical level, some note that it would be impossible for any given state to order a nationwide recount, if the vote were close. If this system ever is passed by states holding the requisite 270 electoral votes, expect to see heated legal challenges in the federal courts.
No question.. once that 270 number is reached the court cases are sure to follow…. as they should. But I simply make this post to inform.