Article II, Section 1, Paragraphs 1 and 2 of the US Constitution reads as follows:
“The executive power of the United States shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and together with the Vice President, chosen for the same term, be elected, as follows:
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: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.” (Emphasis added)
Amendment XII to the US Constitution then states:
“The electors shall meet in their respective states and vote by ballot for President and Vice President . . .”
It is clear that the US Constitution gives each state the freedom to appoint its electors for President and Vice President in whatever manner it chooses. It is also clear that the total number of electors from each state would be based upon both proportional representation (number of Representatives) and equal representation (number of Senators).
This was a direct result of what is known as the “Connecticut Compromise” (also known as the “Great Compromise of” 1787”), which was adopted by the Constitutional Convention of 1787. Because of concerns of the smaller states that proportional representation in both houses would give the larger states an unfair advantage, it was decided (the Great Compromise) that representation of each state in the House of Representatives would be proportional based upon population, while representation of each state in the Senate would be equal, with each state having two Senators.
The appointment of electors to the Electoral College by each state is based upon the same philosophy of proportionality and equality, thereby putting the smaller states and states with smaller populations on a more equitable level with the larger and more populous states.
Nowhere in the US Constitution does it say that the vote of each appointed elector shall be tied to the popular vote in any way, shape or form. Rather, it left it up to the legislature of each state to decide how and on what basis each elector’s vote shall be cast.
That being said, most states have adopted a policy whereby all of the state’s electoral votes are given to the candidate who wins the popular vote in that state. Only two states, Maine and Nebraska, have adopted different policies.
Maine awards two of its four electoral votes to the statewide winner, but awards its other two electoral votes to the popular vote winner in each of its two congressional districts. Similarly, Nebraska awards two of its five electoral votes to the statewide winner, while the remaining three electoral votes go to the popular vote winner in each of its three congressional districts.
After the 2016 election, in which Hillary Clinton won the National Popular Vote but Donald Trump won the Electoral College vote and the election, the National Popular Vote Interstate Compact (NPVIC) was enacted among a group of predominantly blue U.S. states and the District of Columbia to award all their electoral votes to whichever presidential candidate receives the most votes nationwide.
The idea behind the National Popular Vote Interstate Compact was that it would guarantee the Presidency to the candidate who received the most popular votes in all 50 states and the District of Columbia.
The NPVIC would go into effect if states representing at least 270 electoral college votes adopt the legislation. As of November 2020, fifteen states and Washington DC have passed legislation to join the NPVIC. Collectively, these states represent 196 electoral votes, 74 votes shy of the 270 votes required. Another eight states representing 70 electoral votes have passed legislation in one or both houses of the state legislatures.
While I believe that this is perfectly legal for these states to do, I also believe it is being done for exactly the reason that the Electoral College was devised in the first place. It is a direct attempt to circumvent the Electoral college and deny the voters within the smaller and less populous states of their right to a fair election.
Perhaps it’s time for those states opposed to the NPVIC and election of the President and Vice President by a National Popular Vote to develop another method of deciding how their electoral votes are to be cast, a method that is based upon both a “proportional basis” and an “equality basis”.
Perhaps it is time for these states to consider a State Electoral College wherein the Electoral Vote for President and Vice President of each state is decided by a combination of both a proportional (popular) vote AND an equality vote wherein each county (or state congressional district or other geographical division) is given a vote, such that each area and part of a state has equal representation with every other area and part of the state.
If I use my own state of Texas as an example, this would put the smallest county (Rockwall County, 149 square miles) on equal footing with the largest county (Brewster County, 6,192 square miles) and the least populous county (Loving County, population 184) on par with the most populous county (Harris County, population 4,767,540).
Texas has 254 counties. The eight most populous counties have a larger combined population than the remaining 246 counties combined. Harris County, where Houston is located, has a larger population than the 214 least populated counties combined. Is it fair that Harris County can out vote 214 other counties simply because it is home to an over-crowded mega-metropolis?
Is a State Electoral College a crazy idea? Maybe. But maybe a crazy idea or two is just what the United States needs to get it back to the country our Founding Fathers envisioned. Otherwise, we may as well all sit back and sing the Blue State Blues while California, New York and a few other states with large metropolitan centers decide all of our future elections for us.