That Pesky Thing We Call a Constitution

Thought you wouldn’t have to worry about the presidential election for two more years, didn’t you? Well, you’re wrong.

A coalition of former congressmen recently announced a new campaign designed to tear apart the system by which Americans elect their Presidents. They think that they have found an all-new and unique end-run around the Electoral College.

If their plan works, the Electoral College will essentially be gone, at the behest of a mere handful of states. Potentially, the 11 largest states could dictate this change, even if the other 39 states disagree.

But I should start at the beginning.

On February 23, former Rep. John Anderson (R.-Ill.) and former Sen. Birch Bayh (D.-Ind.) announced a proposal that they call the Campaign for the National Popular Vote. The goal of the Campaign is to change the way in which states’ electoral votes are allocated. The group will tackle one state at a time, beginning with Illinois.

State legislators in Illinois have already introduced a bill that is in line with the Campaign’s objectives. If passed, the legislation would require Illinois to enter into an interstate compact with other states enacting similar legislation. Under this interstate compact, each participating state would agree to allocate its entire slate of electors to the winner of the national popular vote. The compact would go into effect when states representing 270 electoral votes (enough to win the presidency) have agreed to the compact.

The eleven most populous states have 271 electoral votes following the 2000 Census. Therefore, if these 11 states were to choose to award their electors in accordance with the national popular vote total, then they could determine the outcome of the election. (If one state bowed out, then it would need to be replaced by a handful of other states.) The decision of these 11 states would hold even if the other 39 states and the District of Columbia voted for the other presidential candidate.

Ironically, Anderson touts this anti-democratic aspect of the plan as one of its greatest benefits. The difficulties associated with passing a constitutional amendment, he notes, are rather hard to overcome. The Campaign for the National Popular Vote would allow Electoral College opponents to bypass these hurdles and impose their new election system with minimal trouble. The Electoral College would be abolished in practice, although not by the letter of the law.

Yeah, that pesky constitutional amendment process. It requires a supermajority of states to consent. Whatever were the Founders thinking?

The Constitution is set up as a system of checks and balances. The constitutional amendment process requires the approval of three-fourths of the states so the large states cannot bully the small states, yet that is exactly what the Campaign for the National Popular Vote proposal attempts to do. Under its plan, eleven populous states could implement change with or without the approval of their smaller neighbors.

Yes, of course, the amendment process is an uphill battle. It was intended as such. Constitutional principles should be changed only after great thought and approval from the vast majority of the country. Difficulty in changing the Constitution protects the freedom of Americans.

Sadly, Anderson and Bayh are not the first to propose this method of bypassing the Electoral College (although they may be the most serious about it). Several law professors have discussed similar proposals in the past and have concluded that at least one critical difficulty may arise from such a scheme. How, these academics wonder, would the states handle "noncooperating states" who refuse to conduct internal state recounts when needed or who otherwise attempt to "sabotage the system"?

Amazingly, it doesn’t seem to occur to any of these Electoral College opponents that such difficulties result directly from the sheer, unmitigated arrogance of attempting to effect constitutional change without bothering to first obtain the consent of the governed.

If Electoral College opponents wish to get rid of our current presidential election system, then they should have an honest debate with the American people—all of the American people—about the pros and cons of utilizing an Electoral College system. This author has written a book on the subject and would be glad to engage in such a debate.

Those who oppose the Electoral College always claim that they want to promote a more democratic presidential election process. How ironic that they would stoop to such an undemocratic scheme to get their way. Their hypocrisy is on full display for the world to see.

This article was first published at