What was the Founders’ Intent in Creating the Electoral College? Part 2

“THAT’S NOT OUR FORM OF GOVERNMENT”

by Sharon Rondeau

(Apr. 2, 2019) — In Part 1 of our interview with Atty. Mario Apuzzo about what appears to be growing support among states, individuals and politicos to abolish the Electoral College, the Constitution’s provision for the election of the President of the United States, Apuzzo made the case that if it were to occur, the country’s major urban centers would acquire the sole power to elect the chief executive.

At present, the president and commander-in-chief is elected indirectly by the nation’s voters through state-run elections and politically-appointed “electors.” When Americans go to the polls for the quadrennial presidential election to cast their votes, they are actually voting for the electors who represent the political party of the candidate of each voter’s choice.

The Founders’ concept of the Electoral College, created during the 1787 Constitutional Convention and appearing in Article II, Section 1, clauses 2-4, Apuzzo explained, was to provide a compromise between sparsely-populated, rural states and those with large cities such as Philadelphia, New York and Boston. At the time, there were 13 states, with the vast Midwest, Southwest, and West Coast yet to be explored and settled.

There were a number of compromises arrived at during the convention, Apuzzo said and history tells us, in order for the states to form a central government for their mutual protection and representation.  One such compromise was the election of the federal Congress by the states; another was the creation of the office of the president itself given that the Articles of Confederation lacked such a provision.

Of the system to elect the president and the number of state electors, the National Archives explains, “The Electoral College consists of 538 electors. A majority of 270 electoral votes is required to elect the President. Your state’s entitled allotment of electors equals the number of members in its Congressional delegation: one for each member in the House of Representatives plus two for your Senators.”

The electors actually elect the president and vice president on the first Monday after the second Wednesday in December following each presidential election.  While most electors cast their votes in accordance with their state’s voters’ wishes, through 2016 there have been 167 “faithless electors” who did otherwise.

Many political observers have criticized the Electoral College method of electing the president, particularly as the winner of the electoral vote at times loses the popular vote, as in the cases of Donald Trump in 2016 and George W. Bush in 2000.

Recently a “National Popular Vote Interstate Compact” (NPVIC) gaining in popularity has been joined by the states of Colorado and Delaware for a total of 13 states and the District of Columbia.  Together, the jurisdictions encompass 184 electoral votes using the allotment by the Electoral College.  The jurisdictions in the compact have pledged their electoral votes to the winner of the national popular vote, regardless of the candidate who wins the majority of the votes cast by their citizens.

States having previously joined the compact are California, Connecticut, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New York, Rhode Island, Vermont, and Washington. Additionally, the website reports, an NPV bill has been approved by one chamber of the legislatures of eight states which collectively possess 72 electoral votes.

The organization’s proponents maintain that once the compact acquires enough states to reach 270 electoral votes, the nationwide change to the manner in which the president is elected will take effect.

At least a half-dozen Democratic presidential hopefuls have expressed support for considering or outright eliminating the Electoral College, citing the importance of “one person, one vote.”  Indeed, the mainstream media is focusing increasingly on attempts to do away with the institution.

One year ago, Donald Trump voiced support for the idea of a national popular vote to elect the president, deeming it “easier to win” but a “totally different campaign.”  However, he recently backtracked on that position, stating that he believes the Electoral College maintains a balance between large-population states and smaller, rural states.

As we reported in Part 1, congressional approval could be required for the NPVIC to take effect.  Constitutional challenges are also a possibility, as Apuzzo discusses below.

On Tuesday, the oft-cited election-analysis website fivethirtyeight.com reported that Sen. Brian Schatz (D-HI) introduced a bill to abolish the Electoral College, adding:

Although states may figure out a way around the Electoral College with the National Popular Vote interstate compact, it would not seem as permanent as a constitutional amendment, given that only one amendment has ever been repealed. And as Faris argues, using the interstate compact method might precipitate a crisis because an outcome might be seen as illegitimate and be subject to legal challenges if it delivers a result that contravenes what the Electoral College would otherwise do.

Schatz’s proposal is unlikely to pass the Senate, but it may be a symbolic effort to influence the conversation about what we want our electoral system to look like. Nonetheless, without broader agreement, a constitutional amendment to abolish the Electoral College will pass when pigs fly.

Continuing the discussion, Apuzzo told us:

If you go on to the Electoral College clause itself in Article II, Section 1, clause 2, that clause gives the states the powers to “appoint.”  Now what does that mean?  These people will be the electors, but they do not have the power to reshuffle or change the Constitution with respect to the Electoral College.

States can have compacts, but when involving the supremacy of the national government, they need the consent of Congress.  This is definitely a national, supremacy question.  Even if the compact is legal, you need the consent of Congress.  But if the compact is not legal, you can’t say, “Oh, we’re going to get the approval of Congress.”  I submit that this compact is not legal, because they’re not just appointing electors; you’re actually deciding who gets the electoral votes.  Even if somebody else won those electoral votes, you’re allowing yourself to be trumped by a national vote.

If these states want to do this, they have to pass a constitutional amendment. Why are they still tinkering with the Electoral College?  If they have all this power to do this, why don’t they just propose a constitutional amendment? Why even have the Electoral College involved somehow?  Because they know the Electoral College is in the Constitution and they’re trying to work around it.

If the popular vote is such a good idea, and some of these professors who have written on it say it’s legal, do a constitutional amendment, and the same people who they say should elect the president vote on this same issue?

Let the people themselves that they say should vote for the president decide this issue, and let them draft a constitutional amendment.  They’re being dishonest by giving the impression that this change is “for the people.”  “The people” vote for the president, and Hamilton said that, but the states also vote for the president.  “The people” is the whole nation, not just a majority of the nation.

How do you get the whole nation?  By allowing each state to vote. You don’t take away the right of that state because some other majority was created by factionalism — Los Angeles, New York, Chicago — and now people in the other states have to live by the values, ideas and lifestyles of other people?

Everybody has a right to his own lifestyle and values, but when it comes to voting, you have to follow the Constitution.  This whole thing about direct election, and one man, one vote is really a falsehood.  Let everybody change the Constitution and not go around it like this.

We all know the illegal idea of gerrymandering, which is playing with boundaries to get representation. This is really a gerrymandering-type scheme, because they’re gerrymandering the population centers. By giving those population centers all this influence and power, they’ve trumped the rest of the nation.  So those who control the main population centers control the presidency.  The compact would centralize power over who should be elected president in these major urban population centers.

Of course, you have to look at who’s sponsoring this.  The project is sponsored by Democrats, although there are some Republicans supporting it as well.  You can ask anyone on the street, “Who’s the vice president?” and they don’t know. So do they know what the Electoral College is?  It’s a fraud to take a poll where you ask, “Do you think the people should decide who the president is and not this Electoral College?”  If they don’t know anything about it, of course they’re going to say, “The people should decide it.”

The Post & Email asked Apuzzo about any challenges which might be made to the interstate compact if it acquires 270 electoral votes and officially attempts to launch, to which he responded:

A candidate always has standing; that’s one of the big issues in federal court.  I think that a candidate should voice an objection during the campaign.

We asked, “Is it actually a change in law?”

It’s not a constitutional law.  It’s like a state or Congress passing a law.  The candidate would have to say that he is being denied his electoral votes.

I’ll give you an example.  What if he won California and is supposed to get those electoral votes?  But the compact says, “No, our votes are going to him or her,” meaning someone else.  But he would say, “It’s unconstitutional” because he’s supposed to get those votes.  It’s a violation of the Constitution the way it’s set up, because the state hasn’t just appointed electors; it has actually cast them away to someone else because of a popular vote, which is contrary to the philosophy of the Constitution’s founding.

It’s political philosophy.  I don’t think this issue has been studied deeply.  I think I’ve mentioned some things that haven’t been mentioned by anybody else, although I haven’t done exhaustive research.  The small states and large states had to come together as a union, but they weren’t going to do that if they were going to lose their sovereignty.

Sovereignty was a critical element for the Founders, and they got the idea from Emmerich de Vattel.  He was really the proponent of sovereignty, and it gave them the idea that your sovereignty is everything when you’re a nation.  They decided that they had to fight for sovereignty, and that’s why they broke from England.  If you look at the history, they became free and independent states.”

As for the role of the states, Apuzzo said:

“The parts make up the whole.  Without the parts, you don’t have a whole.  It’s like your body; you’re only as young as your oldest part.  You could be in tremendous shape, but your foot doesn’t work and you can’t walk.  You need all the parts.  Each part has to be working properly, so the states are very important.

The Constitution says that the federal government has to guarantee each state a “Republican Form of Government.”  What does that mean?  There are different meanings.  Let’s say the state is being invaded by an army.  That’s like invading the whole United States, and they have to pull in the national powers to protect that state.  But it means more than that; it gives you the idea of republicanism and shows how important it was to avoid “factions” in which 50/50 + 1 is going to control everything and 49% have no rights.  That’s not our form of government.  A lot of people don’t understand it or how important it is:  it gives everybody a voice, the majority and the minority.  What could be better than that?

“It perhaps would have been easier for the Founders to allow a simple majority to control everything,” The Post & Email observed, and Apuzzo responded:

Eventually the majority can control if they test the laws.  Take, for example, our courts.  That’s an institution that is supposed to stand on the sidelines, and whenever the majority does something that’s bad for the minority, they’re supposed to step in.

The easy example there is “discrimination.”  You have all kinds of discrimination:  race, disability, nationality, age, gender.  You have all these factors which make up the population, and you’re not supposed to give people benefits or burdens based on those things.  Everybody’s supposed to be equal.  Some people are faster than others; some people are smarter than others; you can’t control that.  But you should control where people are gaining over others because of factors that should not come into it.  That’s where the courts are supposed to step in and maintain an equal playing field.  That keeps the majority in check, because the majority can make laws.

However, there has to be a standard, which in the grandest sense is the Constitution. We also have federal laws, states laws, and common law, which is courts.  Those court decisions become law, which we call the common law.  We also have regulations. All that together becomes a super-moral brain, and those laws are supposed to be fair and moral and proper and just, and then you judge everything that happens in the nation by those standards. That’s how you protect people, whether you’re a majority or minority.

Please watch for the powerful conclusion to our interview with Atty. Apuzzo in the near future.