Last week, Nevada joined 14 other states to pass a bill granting its electoral votes to whoever wins the “popular vote” across the country, even if that candidate is not who Nevadans want as president.
The pact among states—to disregard the wishes of their own citizens in favor of following the popular vote—is the brainchild of liberal progressive John Koza, co-founder of National Popular Vote, an organization dedicated to overthrowing the Electoral College. Though the organization bills itself as non-partisan, it is funded almost entirely by left-leaning donors, including the Soros Foundation.
If Nevada’s governor signs the bill, it will become law in Nevada, which will then become the 15th state—plus the District of Columbia—to join the interstate pact. For the moment, those 15 states control 195 electoral votes. The pact would only take effect if and when states controlling 270 electoral votes join the pact. This way, states joining the pact don’t have to risk overriding the will of their own citizens unless the candidate who wins the popular vote is assured victory.
The interstate pact is highly vulnerable to a legal challenge in the federal courts, as it undermines the Twelfth Amendment to the U.S. Constitution, setting forth our Electoral College system, which, following its adoption in 1803, has governed every presidential election since.
The prospect of a successful legal challenge aside, the leftist movement to nullify the Electoral College raises three questions worthy of discussion: 1) why have an Electoral College to begin with; 2) does America truly have a “popular vote” in presidential elections; and, in any event, 3) does the Electoral College truly disfavor the Democratic candidate?
Why an Electoral College?
To answer the first question—why have an Electoral College?—we need to first ask a broader question: is America, strictly speaking, a democracy? Do we even want America to be a pure democracy?
In a strict democracy, the majority rules. That’s great for the majority, but what about the minority? Don’t they have rights?
A definition of a democracy attributed to Benjamin Franklin captures the point: a democracy is two wolves and a lamb deciding on what’s for lunch.
The Founders were devoted to combatting what James Madison called “the tyranny of the majority.” Instead of a strict democracy, where a simple majority always rules, they constructed a more lasting system of government: a democratic republic—with built in checks and balances, carefully designed to safeguard the rights of both the majority and the minority.
The Founders established a bicameral legislature—consisting of a Senate, with two Senators elected by each state, and a House of Representatives, with each state electing a number of Representatives in proportion to its population. It also led the Founders to the separation of powers principle, which like the child’s game, “rock, paper, scissors,” balances out power by sharing it among the legislative, executive and judicial branches.
The Electoral College was another measure carefully designed to prevent the “tyranny of the majority.” It ensures that a presidential candidate cannot win an election by focusing only on high-population urban centers, while ignoring rural areas of the country—what liberals call “flyover country.”
A Popular Vote?
Donald J. Trump’s stunning victory in the 2016 Election, winning as he did, a commanding 304 electoral votes to Hillary Clinton’s 227—but with Ms. Clinton supposedly garnering more of the popular vote—has whipped progressives into an uproar, prompting their attacks on the Electoral College, including Koza’s interstate compact.
But is there truly a “popular vote” for the U.S. president?
Everyone agrees that the money a candidate raises is critical. Advertisements and grass roots efforts play a huge role in the outcome of the election. If you were the GOP candidate for president, would you devote your limited campaign resources to winning over New Yorkers or Californians? If you were the Democratic candidate, how much would you spend winning over voters of Idaho and Wyoming?
If you were a Republican voter living in New York or California, and it was raining hard on Election Day, would you bother to get out and vote, knowing your vote could not possibly matter? For that matter, if the sun were shining would you bother to vote?
In truth, there’s no popular vote in America for president. It cannot be said that Al Gore or Hillary Clinton truly won the popular vote, because there was none. No one really knows whether either candidate would have won a true popular vote, because no such vote ever took place.
Rather, the most that can be said, is that those two candidates garnered more individual votes in an Electoral College system, where the question who won the most individual votes is irrelevant, and even that claim is subject to challenge given the voter fraud in south Florida and elsewhere.
One cannot change the rules after a contest is over, and then claim to be the winner under a different set of rules that never governed. If Roger Federer prevails over Raphael Nadal in a singles tennis match, Nadal cannot come back later and say, I watched a video of the match and rescored it using the doubles lines, and, using those lines, I won!
Absent the Electoral College, presidential candidates could act as if Americans in the Heartland don’t exist. They would campaign in a small handful of states with large populations. No candidate would care what people in “flyover country” think.
Ironically, prior to Donald Trump’s historic victory in 2016, Liberals rejoiced in the Electoral College—bragging that no GOP candidate could win given the “Blue Wall”—a group of 18 states and the District of Columbia assuring the Democratic candidate 242 of the needed 270 electoral votes.
These states had consistently voted Democratic since George H.W. Bush defeated Michael Dukakis, a candidate who failed to carry several Blue Wall states including California, and who most Democrats now regard as deeply flawed.
Indeed, Ms. Clinton was widely touted as a heavy favorite due to the Blue Wall. In a huge upset, Mr. Trump won 304 electoral votes by carrying three Blue Wall states, Michigan, Pennsylvania and Wisconsin, as well as a single electoral vote from Maine, a non-winner-takes all states which prorates its electoral votes.
The left’s post-Trump attack on the Electoral College, not only does violence to a foundational safeguard against the tyranny of the majority commanded by the U.S. Constitution, it defies political common sense, in two stunning ways: 1) by throwing out what historically has been an enormous advantage for Democrats; and 2) by vividly demonstrating the willingness of liberal state lawmakers to override the wishes of their own constituents on the most important U.S. election—a sure sign of advanced Trump Derangement Syndrome.
Imagine the political fallout the short-sighted sponsors of this interstate pact will end up suffering should Trump win more individual votes than the Democratic nominee in 2020, and the Blue states who signed onto the pact end up casting their electoral votes for him, even after the majority of voters of those states chose the Democratic nominee!
Regardless—and voter fraud aside—no one can say Hillary Clinton won the popular vote in 2016 because there was no such vote. We don’t know how the popular votes would have tallied had Donald Trump spent his campaign resources winning over Californians and New Yorkers or, for that matter, had the millions of GOP voters in those or other Blue Wall states known their votes would matter. Re-scoring the contest using the “doubles lines” after the fact is not a legitimate exercise.
A well-armed lamb is central to the proper functioning of a democratic republic. It’s ironic that the party who claims to protect minorities is hellbent on ensuring those minorities—as measured by state populations—have no voice, when it comes to presidential elections.
Stephen B. Meister is a founding partner of Meister, Seelig & Fein, LLP, a law firm headquartered in NYC, published author and opinion writer. Twitter: @StephenMeister.
 The Blue Wall states and the number of their electoral votes include: California (55), New York (29), Illinois (20), Pennsylvania (20), Michigan (16), New Jersey (14), Washington (12), Massachusetts (11), Maryland (10), Minnesota (10), Wisconsin (10), Oregon (7), Connecticut (7), Hawaii (4), Maine (4), Rhode Island (4), Delaware (3), and Vermont (3), as well as Washington, D.C. (3).
Reprinted with permission from - The Epoch Times - by Stephen Meister