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Electoral College, you’re fired!
Guest column

Electoral College, you’re fired!

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Retired Justice Jim Nelson

Retired Justice Jim Nelson

The Electoral College (EC, for short) is one of the most undemocratic institutions to disserve our country. For years a substantial majority of Americans has consistently, and rightly, supported the ideal that our president should be elected according to the popular vote. Yet in 1824, 1876, 1888, 2000 and 2016, the person elected president was not the candidate who the majority of people voted for.

Indeed, in 2000, the “winning” candidate, George W. Bush, lost the popular election by nearly 540,000 votes. And in 2016, Donald Trump lost the popular election by over 3 million votes—yet, he was declared the winner because of the EC votes.

The EC is embodied in Article II, Sections 2-4 of the federal Constitution: “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 ...’’ And, a lengthy process for utilizing the EC then follows.

Electors controlled by the state legislatures might have had merit at the founding of the country when the only people allowed to vote were white, male property owners. In theory, the EC was adopted to reconcile divergent state and federal interests, provide less populous states political leverage, ensure some degree of popular election, guarantee a presidency independent of Congress and save the election process from political manipulation. The EC never did fulfill its lofty purposes, though.

Worse, this institution continues to frustrate the ideal of a popularly elected president – as happened twice in the last 16 years. The EC requires candidates to devote disproportionate resources in pivotal “swing states” and ignore the rest (like Montana). The EC tends to decrease voter turnout. In non-swing states (like Montana), voters, anticipating the probable outcome of an election, simply don’t bother to vote—they know that even if they vote with the popular majority, the EC may nullify their vote (as happened in 2016). In short, the EC is a historical artifact, antithetical to democracy.

Is it realistic to expect Congress or the state legislatures to amend the Constitution to repeal the Electoral College? No.

But there is another avenue to effectively accomplish the same result. The National Popular Vote Interstate Compact (NPVIC) is an agreement among states and the District of Columbia to award their electoral votes to the candidate who wins the most popular votes in the 50 states and D.C. The compact comes into effect only when it will guarantee that result.

As of January 2017, 10 states (California, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont and Washington) and D.C. have joined the compact. These signatories have 165 electoral votes (presently, 61.1 percent of the 270 EC votes needed to give the compact legal force).

A bill (Senate Bill 290) was offered in Montana’s 2007 legislative session to join the compact, but the proposed legislation failed. Is it realistic to expect that Montana’s legislature might reconsider and join the compact? No.

For Montana voters who demand change, there is another viable approach, however. Article III, Section 4 of Montana’s Constitution permits the people to enact laws or amend our state constitution by way of a citizen initiative. In other words, if a citizen initiative to join the NPVIC was enacted by the people, Montana would become a member of the compact by statute or constitutional amendment; its three EC votes would then be cast for whichever candidate won the popular vote.

With the NPVIC in effect nationwide, each Montana vote would have the same power as each New York, California and Ohio vote. No Montanan’s vote would be nullified by a federal constitutional relic. America would elect its president in the most direct and democratic way possible—by the popular vote of the people.

We the people need the NPVIC; we need to finally say to the EC: “You’re fired!”

James C. Nelson of Helena is a retired Montana Supreme Court justice.

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