By Alan W. Dowd
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.
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.”
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.
Alan W. Dowd is a senior fellow with the Sagamore Institute, where he heads the center for America’s Purpose and authors the Project Fortress blog. Follow him on Twitter @alanwdowd. A shorter version of this essay appeared in Providence.