Liberals have long dreamed of scrapping the Electoral College and replacing it with the national popular vote, a goal that Minnesota Gov. Tim Walz helped make a reality in his state.
Since becoming the running mate of Democratic presidential nominee Kamala Harris, Mr. Walz has positioned himself as a moderate centrist. Still, his support of several far-left initiatives, including his plan to disable the Electoral College, foreshadows how a Harris administration could govern.
“This is a major concern because this effort is unconstitutional, and Walz will be right there making decisions about judicial appointments,” said Trent England, executive director of Save Our States, which advocates for preserving the Electoral College. “It’s one more piece of evidence that they would appoint the most radical, anti-constitutional judges they would find.”
Kermit Roosevelt, who teaches constitutional law at the University of Pennsylvania, said a conversation about the Electoral College’s relevance is long overdue. He said putting Mr. Walz on the Democratic ticket will bring that debate to the forefront of America.
“I do think this is a good idea and hope we have a conversation about it,” he said. “I think people are becoming aware of the anti-democratic features in the Constitution. This is a way in which we can make our system more fair and equal.”
In May 2023, Mr. Walz signed legislation that would award Minnesota’s 10 presidential electors to the national popular vote winner, even if that candidate loses the state. Regardless of which candidate wins Minnesota, the national popular vote winner would control the state’s electors.
The state law won’t affect this year’s presidential election.
The legislation, signed into law with little fanfare as part of an omnibus spending bill, added Minnesota to the National Popular Vote Interstate Compact. The coalition of 17 Democratic-controlled states and the District of Columbia aims to make the Electoral College irrelevant.
Combined, the states have 209 electoral votes, accounting for 39% of the Electoral College and 77% of the 270 votes needed to give the compact the teeth to overtake the Electoral College.
The national popular vote movement has sought to add Michigan, a significant swing state with 16 electors, to its ranks.
In 2020, Ms. Harris said she was “open to the discussion” about abolishing the Electoral College. The Harris campaign did not respond to a request for comment for this report.
Whether the interstate compact is constitutional is an ongoing legal debate. It would require approval from Congress. The courts have not decided the issue because the compact’s power wouldn’t kick in until it controls 270 electoral votes. Until then, the compact is toothless and no one has the standing to sue.
Last year, a Pew Research Center poll found that 65% of Americans favor changing elections so the popular vote winner takes the presidency. The same poll found that an overwhelming share of Democrats, 82%, support the idea, compared with 47% of Republicans.
A presidential candidate has won the popular vote but lost the election five times in U.S. history.
Democrats have pushed to abolish the Electoral College since 2000, when Democrat Al Gore claimed the popular vote but narrowly lost the election to Republican George W. Bush. In 2016, Democrat Hillary Clinton received nearly 2.9 million more votes than Donald Trump, a Republican who eked out a slim victory in the Electoral College.
In 2020, Democrat Joseph R. Biden resoundingly won the popular vote over Mr. Trump by more than 7 million votes nationwide but only eked out an Electoral College victory thanks to a combined 115,012 votes in Pennsylvania, Wisconsin and Georgia.
“In the system we have now, the election could come down to 20,000 votes in Pennsylvania,” Mr. Roosevelt said. “It’s fundamentally contrary to the idea that each American is equal and everyone’s voice should have equal weight.”
Some argue that the compact violates the 14th Amendment, which prohibits any law that “shall abridge the privileges or immunities of citizens.”
Others say states have the right to enter into agreements independently. They argue that nothing in the Constitution requires Congress to approve compacts among states.
“If a state wants to appoint their electors by whatever its legislature wants, it can,” said Josh Blackman, a constitutional law professor at South Texas College of Law Houston. “If a state wants to appoint its electors based on the popular vote, it can.”
Opponents of the National Popular Vote Compact say it opens the election to all kinds of shenanigans, both legal and illegal. A populous state such as California could lower its voting age or extend voting rights to foreign citizens living in the state.
“California could simply make some of the smallest red states disappear by dumping a bunch of teenagers into the national vote total,” Mr. England said. “That’s perfectly legal, and nothing can be done about it.”
Bradley Smith, who served as commissioner, vice chairman and chairman of the Federal Election Commission, said a national popular vote would increase the risk of election fraud. He said both major political parties would scramble to find votes anywhere they could get them across the country.
“The easiest way to commit fraud is in a one-party state where the party controls everything,” he said. “There will be a tendency to do that.”
Mr. Roosevelt counters that such fears are overblown, and there are already examples of political maneuvering, such as gerrymandering electoral districts in swing states, to affect an election’s outcome.
Critics also say each state has different election rules, which would likely spur complaints from either party that their opponents are distorting the vote. Some states have extended voting windows, while others have different regulations regarding felons’ voting rights or identification rules.
The only way to solve those conflicts would be to nationalize the election rules, which is the goal, Mr. England said.
“It would force the country to nationalize the elections,” he said. “That has been the progressive goal for a long time, and it gives the federal government a lot more power over our elections.”
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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