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Tenth Circuit Rescues the Electoral College

The NPV (National Popular Vote) Compact has just hit a large bump in its road to “bypass the Electoral College.” On August 20, the Tenth Circuit Court of Appeals rescued that College from two centuries of distortion and misuse.  And by doing so, the court handed us a very big club with which to bludgeon the NPV campaign.

The NPV Compact is, in fact, a fine example of the abuse which this ruling calls on the carpet: By signing onto the NPV compact, a state agrees to coerce its presidential electors to vote a certain way — namely, for the party-ticket that won the national popular vote. Such coercion overthrows the whole purpose of the presidential-election system the Constitution outlines — commonly called the “Electoral College.” (See our earlier post, “Democracy, Tyranny, and the NPV Compact.”) The Constitution created the position of presidential elector in order that presidents (and vice-presidents) would be chosen by the considered, uncoerced discretion of people considered capable of choosing the candidates wisely.

Alexander Hamilton, whose Federalist Paper 68 touts the Electoral College

The problem with the way the Electoral College has been working for two centuries is that most states’ laws have already, by various means, been putting heavy pressure on the state’s presidential “electors” to vote the way the state legislature wants them to — which is usually, to support the party-ticket which won the state’s popular vote. And the Tenth Circuit Court has now called “unconstitutional” the coercion of electors — or, to be specific, states’ punishing or removing the elector, or interfering with the (Constitutional) processing of the votes, when an elector casts any such (so-called) anomalous vote.

Remarkably, this “long train of abuses” has never been treated by the Supreme Court. Apparently that is because no state has ever actually carried out the prosecution of a so-called faithless elector, nor actually removed and replaced him or her, for any of the several historical “anomalous” votes — not until the State of Colorado did it in 2016.  It is ironic that the Colorado legislature signed onto the NPV compact, and yet — by trying to remove a “faithless” elector and to interfere with his vote — Colorado’s Secretary of State had already handed the federal courts a case by which they could address the whole issue.

Plaintiffs v. Colorado Secretary of State
The Tenth Circuit Court did address the issue; and we can give thanks that they handled it masterfully! The court concluded: “Article II and the Twelfth Amendment provide presidential electors the right to cast a vote for President and Vice President with discretion. And the state does not possess countervailing authority to remove an elector and to cancel his vote in response to the exercise of that Constitutional right.” (pp. 112–13)

But if the court’s conclusion is correct (and indeed, it is), then the whole NPV program, which is dependent on states’ passing laws that coerce the electors to vote a certain way, is — now officially— unconstitutional!  As reported by the Colorado Sun, current Colorado Secretary of State Jena Griswold, who seems shocked by the ruling, “said that since the 10th Circuit’s ruling says that Colorado law cannot compel an elector to vote one way or the other, the national popular vote compact’s mandates could be ignored under the decision. She reiterated, however, that she’s optimistic a remedy can be found before that situation would ever arise and her office is still reviewing the long, complex ruling to understand its impact.”

Given the Tenth Circuit’s watertight ruling, the “remedy” Secretary Griswold hopes for seems unlikely to appear, even if the case goes to the Supreme Court. Those battling the NPV have a major weapon now. Even states that have signed onto the NPV should repudiate their acceptance of it, given the Tenth Court’s demolition of their authority to enforce any such law.

Democracy, Tyranny, and the NPV Compact

“The Constitution is nicely balanced, with the federative and popular principles; the Senate are the guardians of the former, and the House of Representatives of the latter; and any attempts to destroy this balance, under whatever specious names or pretenses they may be presented, should be watched with a jealous eye.” — Senator Uriah Tracy, in the U.S. Senate debates over the proposed 12th Amendment (adopted 1804)

“The mode of appointment of the chief magistrate of the United States is almost the only part of the system, of any consequence, which has escaped without severe censure, or which has received the slightest mark of approbation from its opponents. The most plausible of these, who has appeared in print, has even deigned to admit that the election of the president is pretty well guarded. I venture somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least excellent. It unites in an eminent degree all the advantages, the union of which was to be wished for.” — Alexander Hamilton, Federalist No. 68

“No matter what happens in America these days — whether by fate or by plan — there is almost always another agenda or some underlying hitch ancillary to the main theme. The Bush-Gore election crisis of 2000 was nothing but a comic opera compared to the events subsequently stemming from it. Among the far more serious evils attributable to the contested election result in Florida is a loud and clear trumpet call for America to DUMP THE ELECTORAL COLLEGE and replace it with direct national elections.” — Don Fotheringham, January, 2001

Overview: The National Popular Vote (NPV) interstate compact seeks to overturn an important part of the plan America’s founders gave us for selecting a president. The drive for the compact is well on its way to becoming reality.  Working below the public radar, the drive has already convinced many state legislatures to join the compact.  This scheme has flourished because it promises to further enthrone the false idol “democracy,” which our founders recognized as a tool of tyrants (we are a Republic, a rule of law, not a democracy).  In this article, we will examine the beguiling NPV pretenses, the original plan of those who wrote our Constitution, how their plan has already been perverted, and why the NPV Compact is a dangerous step in the wrong direction.  And most importantly we will provide readers with the information and perspective they will need to influence legislators in their state to resist the drive.

Anyone researching the drive for an NPV (National Popular Vote) compact between states confronts a bewildering paradox:

  • As the NPV website says openly: “The shortcomings of the current system of electing the President stem [not from the Electoral College, but rather] from ‘winner-take-all’ laws that have been enacted by state legislatures in 48 states.”
  • Yet, what the NPV compact does, in essence, is not to repeal or neutralize these state laws, but instead to translate this “winner-take-all” electoral system from the state-vote level to the national-vote level!

Clearly, there’s more going on here than meets the eye: A national drive which would nullify the Electoral College — without actually abolishing it — justifies its agenda by a critique that points rather to a very different, almost diametrically opposite solution. If we’re to understand the NPV-compact drive, this paradox needs an explanation.

What are the drive’s complaints, then? Why is the Electoral College immune to the critique? Why, and when, did the states’ “winner-take-all” laws arise? And, why does the NPV seek to rectify them with such a strange, unseemly antidote? In answering these questions, we shall draw heavily on the NPV’s own website — mainly to deflect suspicion that we are misrepresenting their position.

The NPV Website’s Complaints
To its credit, the NPV website’s helpful “explanation” page attributes only to state “winner-take-all” laws — rather than to the Electoral College — the situations which it decries. It is quite correct in blaming these situations on these state laws — which have strongly interfered with the functioning and fundamental intent of the (so-called) Electoral College which the Constitution outlines — and, in saying that these state laws have no basis in the Constitution.

The complaints which one finds on this webpage are curious, though, in that clearly they are based on policy-values having little to do with the foundational American system and philosophy of government. Consequently, for those of us not starting from alien, non-American values, the three “issues” the group raises are without force — even if their connections of cause and effect are valid.

The two complaints which the webpage lists first will unlikely tug on the heartstrings of many: One is that “Because of these state winner-take-all statutes, presidential candidates have no reason to pay attention to the issues of concern to voters in states where the statewide outcome is a foregone conclusion.”

This complaint assumes — quite contrary to America’s founding fathers — that campaigning and getting voter-input are both vital parts of a presidential election. Moreover, it makes the outlandish assumption that an electoral candidate who does campaign should be careful to do so just as much in districts where support is overwhelmingly for or against that candidate. (What political campaign-advisor ever urged such a thing?)

The second complaint is scarcely more captivating: “State winner-take-all statutes adversely affect governance. ‘Battleground’ states receive 7% more federal grants than ‘spectator’ states, twice as many presidential disaster declarations, more Superfund enforcement exemptions, and more No Child Left Behind law exemptions.” But given that all these examples of skewed “governance” are unconstitutional, gratuitous, and illegitimate to begin with, blaming them on the electoral laws seems off-target.

The complaint which people will most likely have heard, the website expresses thus:

“[B]ecause of state winner-take-all statutes, five of our 45 Presidents have come into office without having won the most popular votes nationwide. The 2000 and 2016 elections are the most recent examples of elections in which a second-place candidate won the White House. Near-misses are also common under the current state-by-state winner-take-all method of awarding electoral votes. A shift of 59,393 votes in Ohio in 2004 would have elected John Kerry despite President Bush’s nationwide lead of over 3,000,000 votes.”

Interestingly, this complaint is non-partisan: The data the webpage cites show clearly that Republican candidates may be affected by this phenomenon as well as may Democrats.

However, the complaint is also non-American, in the sense that it is based wholly on a non-American political-philosophical assumption — the bare, unargued assumption that presidents should not “come into office without having won the most popular votes nationwide.” The website neglects to elucidate why such an occurrence would be reprehensible.

More fundamentally, it fails to explain why there should be, in any U.S. presidential election, such a number as the “popular votes nationwide.” Nowhere does the Constitution suggest this — not even in the 12th Amendment (which modified the workings of the Electoral College). However, understanding this requires at least a basic overview of the Electoral College, as the Constitution establishes it — a detour which we shall now briefly take.

The “Electoral College”
Regrettably, that NPV webpage seems to buy into the primary misconception Americans hold about the Electoral College: for it states [emphasis ours]:

“The U.S. Constitution (Article II, Section 1) gives the states exclusive control over awarding their electoral votes: ‘Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….’ The winner-take-all method of awarding electoral votes is state law. It is not in the U.S. Constitution.”

On the contrary — not only is the “winner-take-all method of awarding electoral votes … not in the U.S. Constitution,” neither is this whole, bizarre notion of state legislatures’ “awarding their electoral votes.”

The “electors” which the Constitution directs each state to appoint were not “messenger-boys” obligated to cast votes as directed; rather, they were the persons appointed in each state (in whatever way the state legislature chose), to cast their free, uncoerced votes to nominate other persons they deemed suitable for the offices of president and vice-president.[1] Except when a majority of the electors voted for the same person, the election of the president — from among the candidates with the most electoral votes — was then to be made by the House of Representatives — with each state’s delegation casting one vote.[2]

It is crucial to understand that neither in the original Constitution, nor under the 12th Amendment, were electors to be obligated, or even influenced, by either their state legislatures, or other Electors (from their own or other states):

“It is significant to note that there was to be no connection with the Electors of other states, no campaigning, no trading of votes for future influence, or “supporting your program if you support mine.” They were to give it their best shot first — because that was the only shot they had.

“In fact, the Electors met in their separate states on the same day to avoid the chance of collaborating with the Electors from other states during this process. The Electors in each state were able to freely discuss among themselves which individuals were most qualified to be president. They were not, however, forced to conform to the nominations of other Electors from their state. Each Elector’s independent decision of which two individuals to nominate was preserved and respected.” — Gary and Carolyn Alder, The Evolution and Destruction of the Original Electoral College, pp. 23, 24

In order to help ensure this independence, no elector could be a “Senator or Representative, or person holding an office of trust or profit under the United States.”

Each state was allotted as many electoral votes as it has legislators in Congress — i.e., one vote for each of its representatives in the House, plus two votes for the state’s senators. Perhaps the most natural selection method(s), then, would construe two of the state’s electors as being delegates of the state (or the legislature) as a whole, and each remaining elector as a delegate from one of the state’s electoral districts for U.S. House of Representatives.

The latter is still the basic idea in those states which are currently eschewing “winner-take-all” laws: Maine and Nebraska. But each state legislature could adopt any method it wished for selection of its electors; and different states adopted widely varying methods. The NPV “explanation” webpage reports:

“In 1789, electors were chosen from congressional districts in Massachusetts, from special presidential-elector districts in Virginia, and by counties in Delaware. The Governor and his Council appointed the state’s presidential electors in New Jersey. State legislatures appointed presidential electors in the other states.”

The States’ “Winner-Take-All” Laws
We’ve noted that the NPV website’s arguments against states’ “winner-take-all” laws are, rather curiously, without force for those of us not buying into their policy-value assumptions — so alien to the American system. However, this does not mean that we have no complaint(s) of our own, against such laws.

In light of what we’ve just seen about the Constitution’s presidential-electoral system (commonly called the “Electoral College”), the most important thing to understand about “winner-take-all” laws is that any law (state or federal) which compels a presidential elector to vote any particular way is blatantly unconstitutional! That includes, of course, the NPV Compact.

Secondly, it’s helpful to note that such laws, at the state level, are the basis of the unconstitutional party-based-presidential-nomination systems in the 48 states with current “winner-take-all” laws. In these states, the electoral procedure these days is basically this: Each of the major parties selects a whole roster of provisional “electors” who are ready and sworn to serve as electors — and to vote for that party’s candidate — should that candidate happen to win the state’s popular vote. In the latter eventuality, the state legislature then anoints (so to speak) that party’s roster, as the state’s official electors for the election.

The nomination-function was originally the role of the electors. It was usurped first at the national level — by what were called “congressional caucuses.” By 1828, though, the usurpation had moved to the state level: The first election year in which the political parties and their “caucus” meetings at the state level assumed control of the nominating process, was 1832.[3]

Surprisingly, it took less time than that for most states to try out a “winner-take-all” type of statute. The first heavily competitive election, that of 1796, raised strongly the question of whether states’ electors should be chosen “by a general ticket [winner-take-all], or by districts”:  This was how Democratic-Republican candidate Thomas Jefferson framed the issue in a subsequent letter (Jan. 12, 1800) to James Monroe, then governor of Virginia — and likewise a Democratic-Republican.

Jefferson was still smarting from having lost the presidency by only three electoral votes “because presidential electors were chosen by district in the heavily Jeffersonian states of Virginia and North Carolina, and Jefferson lost one district in each state.”[4] In addition, both major parties (Democratic-Republican and Federalist) were disgruntled by the fact that the Electoral College system had engendered a bipartisan team of President (Federalist John Adams) and Vice-President (Democratic-Republican Thomas Jefferson).[5]

In his letter, Jefferson mentioned to Governor Monroe:

“On the subject of an election by a general ticket [winner-take-all], or by districts, … all agree that an election by districts would be best, if it could be general [to all states]; but while 10 states choose either by their legislatures or by a general ticket [winner-take-all], it is folly and worse than folly for the other 6 not to do it.”

Gov. Monroe took the hint, and the Virginia legislature swung into action:

“As a result, Virginia quickly passed a winner-take-all law in time for the 1800 election —​ thereby assuring Jefferson of all the state’s electoral votes.

“Meanwhile, the Federalist majority in the legislature of John Adam’s home state of Massachusetts —​ alarmed by rising support for Jefferson in the state —​ repealed the state’s district system —​ thereby assuring John Adams of all the state’s electoral votes in 1800.

“This triggered a domino effect in which each state’s dominant political party adopted winner-take-all so that it could deliver the maximum number of electoral votes to its party’s nominee. Ten states enacted winner-take-all by 1824….

“By 1836, all but one state had enacted laws specifying that their state’s voters would vote for presidential electors on a winner-take-all basis. By 1880, all states were using this system.”[6NPV “explanation” webpage

And, as they say, “the rest is history.”

The Strange “NPV” Antidote
Summing up: We’ve found that we who are Constitutionalists are in strong agreement with the NPV group, that the state “winner-take-all” laws are egregious — but we are in fundamental disagreement with them, as to why those laws are (in our respective views) egregious. What is less simple to elucidate, though, is why the NPV group’s action-proposal — the interstate-compact which they are pushing — displays no intent to do away with those state laws, even though it lodged all its complaints directly against them — and why it is even, in an important sense, a higher-level establishment of the same corrupt, “winner-take-all” system which those laws undergird.

What do we mean, by its “displaying no intent” to do away with the laws it is critiquing? Let’s look at exactly what the NPV group is proposing.

They are seeking for states to enter into a compact to force their electors to vote for whomever is the winner of the “National Popular Vote.” The compact would not be binding on any state signing it, until the total number of electoral votes of the states signing it is a majority of all the electoral votes.

Since Congress has 535 members, but the District of Columbia has also been given three electors, the total number of electors is 538; so, the required majority of electors is 270. When the compact enrolls states controlling at least that number of electors and those states’ electors are therefore required to vote for the national popular-vote winner, that candidate is (ostensibly) guaranteed election.

As we’ve mentioned already, this proposal is establishing something that’s clearly unconstitutional — the violation of electors’ constitutional right and duty to nominate the qualified persons whom their conscience tells them are the best nominees. That this is so clearly and incontrovertibly the case, while the NPV site argues nevertheless to the contrary, raises serious questions about the veracity and reliability of the NPV-site’s authors (and editors).

Even the NPV website admits (see its alleged “rebuttals” 9.16.2 and 9.16.7):

“[T]he Compacts Clause does not expand state powers. All compacts must be consistent with the U.S. Constitution. In particular, a compact’s subject matter must be among the powers that the states are permitted to exercise….”

As we’ve seen as well, though, they make a grave, even bizarre error, in conflating states’ (constitutional) power to “appoint electors” in any manner they wish, with their (unconstitutional, illegal) power to “award electoral votes” in (allegedly) any way they wish (e.g., “winner-take-all”). And this bizarre confusion appears, not just once, but repeatedly on the website’s pages — particularly on the pages where it is ostensibly “answering myths.”

On the basis of that (false) conflation of two very different notions, it argues that this compact does not violate the Constitution, nor change the electoral procedure stipulated in the Constitution. Much of the verbiage on its “Myths about Interstate Compacts and Congressional Consent” page boils down to this simple, but obviously unsound argument:

  1. “[T]he National Popular Vote compact does not change anything in the U.S. Constitution, and therefore no federal constitutional amendment is necessary …. Instead, the National Popular Vote compact changes state winner-take-all statutes that came into widespread use more than four decades after the Constitution was ratified. None of these state winner-take-all statutes was originally adopted by means of a federal constitutional amendment.” (Under “Myth 9.16.7”)
    1.  The state laws say (in effect): “Following the election, the state will appoint electors who are to cast all their votes for the STATE popular vote winner.”
    2.  The compact changes these state laws, to say (in effect): “Following the election, electors will be appointed in each Member State who are to cast all their votes for the NATIONAL popular vote winner.
  2. (And this is the faulty premise:) Nothing about state “winner-take-all” laws violates the actual procedural requirements laid down in the Constitution; for each state has the Constitutional authority to “award electoral votes” in any way it wishes (e.g., “winner-take-all”).
  3. So, no Constitutional amendment is necessary to effect this change: for not only does this compact leave unchanged the wording of the Constitution; also,it leaves unchanged — i.e., unviolated — the actual procedure required by the Constitution.

Thus, not only are the NPV group’s arguments for the desirability of its changes  based on highly disputable premises; but also, its argument for the legality of its changes, is based on an indisputably false one. So, the question is: Why would a group of presumably intelligent people be presenting — so zealously — such unsound arguments?

There are not very many plausible answers to this. Indeed, we have seen that both the current system’s and the NPV-engineered system’s proponents are quite comfortable with running roughshod over the Constitutional prerogatives of the electors, for the sake of a direct, popular-vote-based presidential election. The difference between the two is thus a surface difference, of implementation and tactics, only.

Let’s take an analogy: It is much like the difference between banks independently allowed to issue their own fiat paper money as “legal tender,” and a centralized banking system, in which only the head office is allowed that piratic privilege. Whether centralized and thus more-coordinated or not, the system is based on a breach of rights. And in either of the more-centralized systems we have in view, though the bumpiness of the road might be rather smoothed out, the danger that the road is heading to disaster — and the potential size of that disaster — are,if anything, actually greater.

The only plausible motive for the compact, it seems, is the same one that belonged, reportedly, to the men who set up the perverted system we have now — the lure of power:

“Ten states enacted winner-take-all by 1824 when Missouri Senator Thomas Hart Benton said: ‘The general ticket system [winner-take-all], now existing in 10 States was … not [the offspring] of any disposition to give fair play to the will of the people. It was adopted by the leading men of those states, to enable them to consolidate the vote of the State.’”NPV “explanation” webpage

This lure exists because granting the populace the conceit that it is in their own values and desires, and the vicissitudes of party temper, that the compass of sound government lies, promises demagogues a road to the heights of tyrannical power. Even before our Constitution was submitted for ratification, one founding father spoke of this conceit as the “excess of democracy”, and described its typical abuse by power-seekers:

“The evils we experience flow from the excess of democracy. The people do not want [lack] virtue, but are the dupes of pretended patriots. In Mass[achusetts] it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute.” — Elbridge Gerry, delegate from Massachusetts, speaking at the Constitutional Convention, 1787

And James Madison warned us of this same conceit, in a classic statement of the dangers of this “excess”:

“[Pure] democracies have ever been spectacles of turbulence and contention, have ever been found incompatible with personal security, or the rights of property, and have in general been as short in their lives as they have been violent in their deaths.”James Madison, Federalist Paper No. 10

The Way Forward
What should be done, instead, about our current electoral system? Given a desideratum of nullifying state’s “winner-take-all” laws — and any laws that coerce or obligate presidential electors — and given that it was fear of other states’ such laws that drove the domino effect of passing them — the idea of a state compact seems apt: Why not an NEV (National Electoral Vote) compact? When enough states have joined (having 270 electoral votes?), they would each be obliged to rescind immediately their laws that coerce or obligate their presidential electors in any way.

That’s something to be thought about, and worked through. In the meantime, though, we should certainly reject the NPV-group’s agenda. That whole program is an attempt to “remedy” — for the wrong reasons, and with the wrong motive — one grotesque perversion of the Constitution, simply by translating its basic state-vote infringement, to a national-vote scope. This is not the way to get our republic back.

Rather, we need to educate our fellow citizens, and especially our state legislators, about both the fraudulence and the ill-intention of the NPV. (To see whether or not your state has adopted the compact, please check the NPV website’s home-page.) If you have found this article a useful tool for education about those things, please share it with all who need to learn of them.


1. Their votes were, of course, restricted by the Constitution’s rules about who is eligible to be President or Vice-President; and, in both Article II and Amendment 12, at least one of each elector’s two votes had to be for someone not “an inhabitant of the same State with themselves.”
2. The main change the 12th Amendment introduced is that the two nominations each elector made were now specific to a particular office: one nomination was for the office of president, and the other for the office of vice-president. Also, the Amendment made some minor adjustments to the process of final selection by the House, for each of these offices.
3. Alder & Alder, Ibid., pp. 54, 55. This is a useful book for studying the history of the Electoral College.
4. NPV “explanation” webpage, under “History of State Winner-Take-All Laws.”
5. Alder & Alder, Ibid., pp. 60, 61.
6. Maine adopted district elections for its electors in 1969, and Nebraska did so in 1992.

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