On May 14, the state Senate passed SB 954, sponsored by Senator Daniel Clodfelter (D-Mecklenburg) that would dilute North Carolina’s voting power in presidential elections. The legislation is currently being considered by the House and may be voted on during this session. In effect, SB 954 would realign North Carolina’s 15 electoral votes so they would no longer go to the person who actually wins North Carolina’s popular election. Instead, North Carolina’s votes would be given to the candidate who wins the national popular vote. If the General Assembly passes this bill, North Carolina electors would be required to vote in a manner that may be inconsistent with the will of North Carolina voters.
Senator Clodfelter’s bill would undermine the very concept of the Electoral College by turning the presidential election into a simple national popular vote. Yet, the Founding Fathers considered and rejected a proposal for a straight national popular vote when they rejected the so-called Virginia Plan in 1787. Instead of simply assigning votes based on population, the Founding Fathers assigned each state as many electoral votes as they have representatives in the U.S. Senate and House. The idea was a product of the Connecticut Compromise, also known as the “Great Compromise,” which created America’s representative national government. The Electoral College was created to ensure that each state would have adequate representation and, also, protect the interests of smaller states from the tyranny of the majority of the more populous states. If it were not for this system, the concerns of people in smaller states would be ignored in presidential elections.
Representing North Carolina
The Electoral College is premised upon the idea that representatives should represent the interests of their state. This concept of representative government is essential to the proper functioning of the federal government. As such, representatives hold a sacred trust.
It is clear from the Federalist Papers, particularly papers 52 through 66, that the Founding Fathers intended for representatives to truly “represent” the people of their state. Argues Federalist 52: “It is particularly essential that … [Representatives] … have an immediate dependence on, and an intimate sympathy with, the people” whom they represent. It is essential that this vision of representation be preserved in the Electoral College.
Historically there have only been a few instances when an elector has voted against the will of the people of his or her state. Traditionally electors have pledged to vote for a specific party. If their party wins the popular vote within their state, they are then chosen to represent their state in the Electoral College. If they choose to ignore the majority vote in their state, the elector is considered a “faithless elector.” North Carolina hasn’t had a faithless elector since 1968 when one elector threw his vote for George Wallace instead of voting for Richard Nixon.
Since Senator Clodfelter’s bill would undermine the intent of the Founders, who wanted a system in which electors represented their state’s interests, SB 954 would undermine the spirit of the great compromise reflected in Article II of the Constitution, as well as the 12th Amendment.
For this reason, the U.S. Supreme Court has generally assumed that Electoral College representatives ought to represent the people of their state. According to the court, “The sole function of the presidential electors is to cast, certify and transmit the vote of the state for president.”1 This function is to be exercised in accordance with the will of the people of each state. Thus Ray v. Blair (1952) makes it clear that electors are representatives of their state and “are not federal officers or agents.” Electoral College representatives, in other words, are agents of the people of each state, rather than the nation as a whole.2
Moreover, SB 954 may violate North Carolina’s Constitution, which provides that “all political power is vested in and derived from the people” (Art. 1, sec. 2). Accordingly, “All government of right originates from the people” and is “founded upon their will only.” The inclusion of this phrase is significant because it is meant to exclude the possibility that political power should be derived from anything but the will of the people. Given this emphasis, we can conclude that the state Constitution confirms that each elector must be a faithful agent of the people and should not be bound by voters in other states. This protects the interests of North Carolinians, as well as the state’s autonomy. The proposed bill would undermine both.
Electors are the entrusted representatives of the people of North Carolina and their votes will determine who becomes president of the United States. When North Carolinians vote for president our Electoral College representatives are expected, by custom, to represent us as faithful agents. North Carolina law provides that if an elector fails to vote as pledged, i.e., in accordance with the will of the people, his vote is cancelled and he must resign his post as an elector.
Given that electors are bound to vote as representatives of the people, it seems that SB 954 exceeds the legislative authority of the General Assembly and may violate Article 1, sec. 2 of the state Constitution. Moreover, SB 954 would subordinate the will of North Carolinians to that of more populous states, such as New York and California. This will have a perverse effect on North Carolina’s voice in national issues and give other states more clout and more political power.
What About Voting Rights?
SB 954 is not only bad politics; it may also be bad law. A law requiring North Carolina electors to ignore a clear mandate from the people may well violate the state Constitution – not to mention the 1st and 14th Amendments of the U.S. Constitution.
The federal Electoral Count Act of 1887 provides that Congress must count those votes that it determines have been “regularly given.” This statute could be interpreted to allow the federal government to void any elector’s vote if it is cast against the “regularly given” vote of the people of a state. Still, the U.S. Supreme Court has never considered whether a state may require an elector to ignore the will of the voters of that state.
In 1968, however, the Supreme Court did rule that “the right of qualified voters … to cast their vote effectively” in a presidential election is “a freedom protected … by the 1st Amendment” and under the equal protection clause of the 14th Amendment.3 The Supreme Court’s opinion in Williams v. Rhodes, as well as other decisions since the 1880s, suggests that the federal government has a legitimate interest in preserving the integrity of the process of presidential elections.4
Finally, in its deliberations over Bush v. Gore (2000), the U.S. Supreme Court concluded that if a state is going to allow citizens to vote in a presidential election, those votes must be scrupulously honored. “Equal weight [is] accorded to each vote and … equal dignity [is] owed to each voter.”5 If, as might be required under SB 954, state electors ignore the will of the majority of North Carolina voters, it could be argued that their entrusted representatives have not scrupulously honored their votes.
Luke Wake is a second year law student at the University of Dayton School of Law. He is a graduate of Elon University where he majored in Political Science and Corporate Communications.
- In Re Green, 134 U.S. 385, 393 (1868).
- See Ray v. Blair, 343 U.S. 214 (1952).
- Williams v. Rhodes, 393 U.S. 23 (1968).
- See Ex Parte Yarbrough, 110 U.S. 651 (1884); Oregon v. Mitchell, 400 U.S. 112 (1970); Bush v. Gore, 121 U.S. 525, 531.
- See Bush v. Gore, 121 U.S. 525.
If SB 954 had been enacted before the 2000 election, North Carolina’s 14 electorial votes would have gone to Al Gore, despite the fact that George W. Bush won by a margin of 355,471 votes.