Breaking Faith With the Electoral College | Opinion

The Supreme Court recently upheld state laws against "faithless electors," and many Americans breathed sighs of relief. The unanimous decision maintains the status quo. As Justice Elana Kagan wrote, those laws reflect "a tradition more than two centuries old. In that practice, for the candidate whom the state's voters have chosen."

This is how the Electoral College works: It is a two-step democratic process. We the People vote in each of our states. Based on that vote, our state's electoral votes are cast for president and vice president. The system has worked this way for over 200 years, providing important checks and balances.

Today, there are two efforts to destroy that system. One seeks to change the Constitution, eliminating the Electoral College and replacing it with a national direct election. But amending the Constitution is difficult—it takes a long time to build the consensus necessary to make such a fundamental change.

Frustrated by these difficulties, a splinter group of Electoral College opponents is pushing a plan called "National Popular Vote," or NPV. They want presidential electors to break faith with their own states' voters in an attempt to create a direct election without actually amending the Constitution.

NPV would change state laws, requiring states to ignore their own voters in choosing presidential electors. Instead, a state would gather vote totals from all the states and certify, for itself, a nationwide winner. Then the state would choose presidential electors based on that national result.

If it worked, and if courts let it stand, NPV would manipulate the Electoral College to create a direct election for president. But it would not work. NPV relies on state officials—partisans—to trust every states' elections with absolutely no power to verify those elections' honesty or accuracy. It creates the possible need for a nationwide recount, but it says nothing about how that would work. Right now, an election problem in Chicago only affects Illinois—but with NPV, it could throw an entire national election into doubt.

The Supreme Court's ruling against faithless electors also suggests NPV would not withstand legal challenges. While the Constitution does give state legislatures power to determine how their state chooses presidential electors, there are limits on that power. The structure of the Electoral College was designed to give each state a voice—and NPV would destroy that structure. Justice Kagan repeatedly referred, in her opinion, to the well-established understanding "that a state's electors would vote the same way as its citizens."

Another legal flaw of NPV is that it violates a basic principle of free and fair elections: All voters in the same election operate under the same set of rules. Right now, each state conducts its own election, for its own residents and under its own rules, to choose its own presidential electors. Under NPV, for the first time in American history, election officials would claim to count votes across state lines despite different rules on who gets on the ballot, who casts a ballot and how those ballots are counted and recounted.

U.S. Supreme Court
U.S. Supreme Court BRENDAN SMIALOWSKI/AFP via Getty Images

No election system is perfect. Every system will, from time to time, produce a frustrating or unexpected result for someone. The Electoral College certainly frustrated Democrats, and even some Republicans, in 2016. But how did that happen?

The Electoral College provides checks and balances that help to protect the United States from both regional politics and centralized power. By pushing the national election out into the states, it makes it impossible for the biggest states or cities to control the outcome. And by keeping states in charge of elections, it prevents presidents from having too much power over their own re-elections.

Both parties nominated unpopular candidates in 2016, in primary processes that had nothing to do with the Electoral College. The media convinced the Hillary Clinton campaign that it could not lose, leading it to slack off in states like Pennsylvania. The Trump campaign was always an insurgency, always a long shot, and it pushed hard through the end to win over people who had voted for Obama just four years earlier. And it succeeded.

Intense partisanship in California, New York and a few other liberal hotbeds gave Clinton the most popular votes. Trump's focused outreach to former Democrats in moderate states gave him the White House. You need not like either candidate to see the benefits of a system that rewards coalition-building rather than radical, regional politics.

Most major "democracies" around the world use parliamentary systems that provide similar checks and balances and permit the same possibility of a "second-place winner." In Canada's last general election, the Conservative Party had the most votes due to intense popularity in two provinces. Nevertheless, the Liberal Party clung to its majority and re-elected Prime Minister Justin Trudeau. While the Conservatives were frustrated, there was no outcry against an undemocratic system or demand for a direct election.

The Electoral College serves the United States well. It keeps states—not presidents—in charge of presidential elections. It prevents the possibility of nationwide recounts. It limits regional politics, pushing parties to reach out and "expand the map" to build bigger coalitions. As Justice Kagan wrote, the current Electoral College process "accords with the Constitution—as well as with the trust of a Nation that here, We the People rule."

Trent England is the author of Why We Must Defend the Electoral College and executive director of Save Our States.

The views expressed in this article are the writer's own.