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Will Virginia’s Presidential Vote be Cast by New York and California?

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Will Virginia’s new Democratic majority in the General Assembly help kill the Electoral College?

Millions who slept through government class were stunned to learn in 2016 that the popular vote doesn’t pick a president. It had also happened in 2000, with a similar pattern of disappointed Democrats complaining the Electoral College process is archaic, anti-democratic and gives smaller states too much weight. Given the wide Democratic majorities now common in New York and California, a repeat in 2020 is easy to imagine.

But a clever, perhaps too clever, proposal simply makes the Electoral College meaningless. The proposal awards a state’s electors to the candidate with the largest national vote, without regard to the result in that state. According to the advocates at National Popular Vote, sixteen states with 196 electoral votes have voted to dis-enfranchise their people, and in several others at least one legislative chamber has agreed.

It was proposed in Virginia, but the General Assembly simply ignored House Bill 2422 during the 2019 Session. Its three sponsors, Northern Virginia Democrats Mark Levine, Kay Kory and Marcus Simon, will surely be back with a longer list of sponsors for 2020, and face first a House Privileges and Elections Committee with a Democratic majority.

This is an end run around the United States Constitution, which has included the Electoral College process since its 1787 drafting. It was the feared electoral punch of then-massive Virginia (compared to the other states at the time) that led the founders to this compromise. What irony it would be if the Virginia General Assembly was the deciding vote to send the idea to the dustbin of history.

It is also an end run around the usual process to amend the Constitution. Why take that trouble? States can simply agree on their own to award their Electoral College votes to the winner (by majority or plurality) of the national popular vote, whoever determines that. The U.S. Constitution gives legislatures control over the choice of electors, with most now simply choosing electors pledged to the winner in that state.

This also could make moot the constitutional provision for the House of Representatives to break Electoral College ties or pick a winner absent an Electoral College majority. No state law can overturn that, but this process means even a plurality winner of the popular vote will have control the Electoral College.
The 2016 election was the fifth time in U.S. history that the candidate with the most popular votes failed to be elected, with 2000 the other recent example. It first happened to Andrew Jackson in 1824, when he led in the popular vote and the Electoral College but lacked an Electoral College majority. The House of Representatives selected John Quincy Adams. Adams had less than a third of the popular vote, but many presidents have failed to reach 50 percent.
The interstate compact language proposed in Virginia doesn’t even require a majority of states to agree for Virginia to take this step. It only requires agreement in states with more than a majority of electoral votes to bind Virginia’s electors. That is simpler than getting two-thirds of the state legislatures to approve (ask the ERA supporters.) States with 74 more electoral votes are required, and the states where it has passed one chamber already would be sufficient.

The assumption of course is that Virginia voters won’t mind or really notice, since they have given its electoral votes to the same party three elections in a row now, with conventional wisdom predicting the same for 2020. But how will those same voters feel if the situation reverses, a Republican wins the popular vote but is on the knife’s edge in the Electoral College? Suddenly Federalism will enjoy a rebirth, even here in New Blue Virginia.

There apparently are a fair number of Democrats who understand the downside of this idea, and not just those in the smaller states that would suddenly become sideshows in a national campaign. There are some Republicans attracted to this idea, if polling cited by the advocates is to be believed. The moderating influence of the Electoral College won’t be noticed until it is gone.

The organized opposition comes from a group called Save our States, with their argument summarized in this article in The Hill a few months back. Author Sean Parnell from its staff paints a grim picture:

“It would be the Florida 2000 recount all over again any time the election was thought to be close, except on a vastly larger scale with lawsuits in most, if not all, of the nearly 4,500 counties and townships that administer elections.”

He reports at least one state, Colorado, is rethinking its position and plans to ask its voters about the idea in a 2020 referendum. He is right that a side effect of the compact would be pressure on states to go to a uniform voting and counting process, rather than the variety of rules we see now.

More popular with Virginia Republicans is another approach, to award Virginia’s electoral votes by congressional district. The 2019 House Joint Resolution 627 and Senate Bill 1002 would give two electoral votes to the candidate who won statewide, but then divide the rest based on the congressional district outcomes. Was that an admission the Republican sponsors see no chance of a future GOP win for a presidential candidate who will need all 13 Virginia electors? Save Our States takes no position on how states allocate their electoral votes internally.

Both are bad ideas. It really was the Miracle of Philadelphia, with the Electoral College one of the provisions intentionally creating a federation of states and not a democracy. Washington, Madison and other founders, fearing unchecked democracy, understood that. But in a country where we dare not even name a school for Madison or so many of the founders, how long can respect for their wisdom abide?

A version of this commentary originally appeared in the November 13, 2019 edition of the online Bacon’s Rebellion.

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