High Court Opens Door to Electoral College Subversion
It doesn’t happen often, but Rush Limbaugh was wrong last Monday.
Maybe it was an after-effect of the chemo he underwent the week before, or maybe we just have to admit nobody is right 100% of the time, but Limbaugh — the gold standard in conservative commentary — completely struck out in his analysis of the Supreme Court’s decision on “faithless electors,” which he deemed to be a big fat raspberry blown at the left.
Here’s the background: Most states appoint a slate of electors selected by the political party whose candidate has won the state’s popular vote. Many states, in addition, have laws that require the electors to vote only for the candidate who won their state’s popular vote. In 2016, a handful of electors from both parties vowed not to vote for the candidate who won the popular vote in their states, leading to the conflict decided in Chiafolo v. Washington.
In its ruling, the high court said that states have the right to require those electors to vote in the manner mandated by their legislatures. Seemed simple enough, and lots of analysts on the right and left — not just Limbaugh — greeted the unanimous decision as if it were an innocuous rebuke of the presumptuous electors who had decided to thumb their nose at Hillary Clinton or Donald Trump.
But it was much more significant than that, and was not a defeat for the left as Limbaugh originally surmised, but rather a huge victory for them and a disaster for the Constitution.
Writing for the majority, Justice Elena Kagan said that the states may punish or remove such “faithless electors” on the basis that they are not following the dictates of the legislature. She based that argument on Article II of the U.S. Constitution, which says, “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.” (Emphasis added.)
According to Kagan’s reasoning, “the power to appoint an elector (in any manner) includes power to condition his appointment, absent some other constitutional constraint.” She argues therefore that a state can require that an elector live in the state or be a registered voter, for instance, and then adds that “a State can add an associated condition of appointment: It can demand that the elector actually live up to his pledge, on pain of penalty. Which is to say that the State’s appointment power, barring some outside constraint, enables the enforcement of a pledge like Washington’s.”
This is typical abuse of the plain language of the Constitution that we have come to expect of the court. The power granted to the states is the power to appoint, not the power to dictate the vote. Who is appointed and the manner of that appointment are to be determined by the state, but there is no constitutional authority for restricting the vote of the elector so appointed. Yet with the court’s latest decision, members of the Electoral College are now nothing but a rubber stamp for state legislatures.
This ruling was not just about whether or not a few disgruntled electors could wave their middle finger at candidates they don’t like. It changed the rules of the game, and laid the groundwork for the radical left to effectively eliminate the Electoral College as a meaningful institution altogether.
That’s because since 2006 an effort has been underway by the progressive left to do away with the Electoral College. Not through the constitutional amendment process — because the tamperers know how difficult it would be to get a supermajority of Congress and the states to agree to such shenanigans. Instead, the plot to subvert the intention of the Constitution comes in the form of the National Popular Vote Interstate Compact.
The compact originated under the auspices of National Popular Vote Inc. According to the group’s website, “The National Popular Vote bill would guarantee the presidency to the candidate who receives the most popular votes across all 50 states and the District of Columbia. It has been enacted into law in 16 jurisdictions with 196 electoral votes (CA, CO, CT, DC, DE, HI, IL, MA, MD, NJ, NM, NY, OR, RI, VT, WA). The bill will go into effect when enacted by states with an additional 74 electoral votes.”
Thus in just 14 years, the compact has already garnered nearly three-quarters of the support it needs. (It’s written in such a way that it requires the support of states representing a majority of the electoral votes before it goes into effect.) The success of the maneuver is partly a reaction to the fact that two of the last five elections (2000 and 2016) were won in the Electoral College by candidates who did not win the popular vote. It’s even more of a reaction to the fact that both of those winning candidates were Republicans. And it certainly didn’t hurt that one of those winners was Donald Trump, perhaps the most hated politician since Abraham Lincoln. Five states have approved the compact since Trump’s election, including four in 2019, the most ever in one year. At this rate, you can kiss the Electoral College goodbye sometime in the next four years.
There are many reasons why the Electoral College may be deemed good or bad, but that is not the point. The question is whether or not it is appropriate to try to subvert the election process through an extra-constitutional solution. If the high court is right that states can dictate how electors must vote, then National Popular Vote Inc. is halfway home.
Cue Rush Limbaugh.
A caller tried to alert Limbaugh to the danger of the ruling, and cited the National Popular Vote Interstate Compact, but Limbaugh to his credit acknowledged that he was “woefully uninformed” about the topic. He didn’t realize how many states had already approved the compact, and was focused on the idea that the court’s ruling “essentially backed up the Constitution — that the electors have to follow the popular vote in their states.”
But as we now see, the ruling was much more dangerous than that. According to Kagan, a state legislature may direct the elector to vote for the winner of the state’s popular vote. Using the same principle, there is no reason why a legislature cannot direct the elector to vote for the winner of the nation’s popular vote. Based on demographic trends over the past three decades, that would almost ensure that the Republican Party would be locked out of the White House for the foreseeable future. It is certainly no accident that of the 15 states and District of Columbia that have so far approved the compact, not one of them has voted Republican in any of the last three presidential elections.
It should be noted that after doing some additional research on the National Popular Vote Interstate Compact, Limbaugh returned on air with a clarification, yet he remained overly optimistic that the scheme (or “insanity” as he called it) would not prevail.
“They just can’t do what they’ve done and corrupt the Electoral College,” Limbaugh opined, adding later, “I think there’s a lot more hoops that they have to go through. It simply can’t be that simple to corrupt or subvert the Electoral College. Maybe it is, I don’t know.”
Unfortunately, as the scope of history reveals, progressives are remarkably persistent, and as soon as conservatives let down their guard they are also very likely to let down their voters as well.
At this point, there is only one constitutional protection left to prevent the left from seizing presidential power permanently, and that is the Compact Clause of Article I of the Constitution, which states in part, “No State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State.”
While it would seem to be self-evident that an interstate arrangement called in its very name a “compact” would in fact be a compact, and therefore would be unconstitutional, there is no reason to assume that the courts would use the plain language of the Constitution to rule on legality. In fact, decades of rulings prove just the opposite. Whether it is on the issue of abortion, Obamacare mandates, immigration or anything else, the Constitution means whatever five justices of the Supreme Court say it means, and that portends that the Electoral College is in dire danger of being legislated out of existence.
Republicans need to wake up and smell the tyranny.