Lowell Ponte
Wednesday, Sept. 27, 2006

Could the 11 most populous states in America conspire to control future presidential elections? This is not only hypothetically possible – but also starting to happen, with little public attention or awareness.

In California, the Democrat-controlled state Legislature has already passed such legislation. Republican Governor Arnold Schwarzenegger has until September 30 to sign this measure into law or veto it. On September 22 the New York Times reported that the governor, up for re-election this November, is "seriously considering" it.

The little-noticed movement behind this is known as National Popular Vote (NPV). Its aim is to nullify the Electoral College without bothering to go through the difficult process of amending the U.S. Constitution. This would produce something like the direct popular election of future presidents by a national majority of total votes.

This "Interstate Compact," imposed by partisan state legislatures without any direct vote of approval by state citizens, would require a state's electors to cast their votes for whichever presidential candidate won a majority of nationwide, not statewide, popular votes.

Thus, in 2008, 60 percent of California voters might cast their ballots for Republican presidential candidate Senator John McCain of Arizona. But if Governor Schwarzenegger signs the National Popular Vote legislation into law, California's electors could be required to ignore California voters and cast their 55 Electoral College votes instead for the national popular vote winner – perhaps for Democratic presidential candidate Senator Hillary Clinton of New York.

This is unlikely to happen by 2008. California's legislation provides that this takes effect only when the same Interstate Compact is enacted by as few as 10 other states that, combined with California, control a winning 270 electoral votes.

As of today, the only other legislative body to pass such a measure is Colorado's state Senate. Such legislation has been introduced into both legislative houses in Illinois and into the lower house of the legislatures in New York, Missouri and Louisiana. Lawmakers reportedly plan to introduce it in 2007 in Arizona, Delaware, Maine, Montana, North Dakota, Rhode Island, Vermont, Wyoming and at least 10 other unnamed states.

This plan to circumvent the Constitution's amendment process was first proposed in 2001, shortly after Democratic presidential candidate Vice President Al Gore narrowly won the national popular vote but (after losing his home state, Tennessee, where people knew him best) lost in the Electoral College to now-President George W. Bush.

It was originally called the "Amar Plan" after its two authors. Akhil Reed Amar is a professor at Yale Law School, a former law clerk for 1st Circuit Court of Appeals Judge Stephen Breyer (later appointed to the U.S. Supreme Court by President Bill Clinton) and a consultant to the now canceled ultra-leftwing TV series "The West Wing." One of his star students is Neal Katyal, lead counsel in the Supreme Court's Hamdan v. Rumsfeld case that led to a ruling on the side of this suspected terrorist.

Akhil Amar's "Amar Plan" co-author and younger brother Vikram David Amar is a professor at the University of California's Hastings College of the Law in San Francisco. Vikram is a former clerk to U.S. Supreme Court Justice Harry Blackmun (who wrote the majority opinion in Roe v. Wade that discovered privacy abortion rights between the Constitution's lines).

Chief spokesman for this plan today is Dr. John R. Koza, a computer scientist who teaches at Stanford University. The former chief executive of Scientific Games in Atlanta, Koza is co-inventor of the "scratch-off" lottery ticket. From working on multi-state lotteries such as Powerball, Koza learned how states create Interstate Compacts.

Two figureheads of this movement are former Illinois liberal Republican and perennial independent candidate John Anderson and former Indiana Democratic Senator Birch Bayh, both of whom had formed the group Fair Vote to push a constitutional amendment to abolish the Electoral College. When people complain that his scheme is an end run around the Constitutional amendment process, Koza replies: "Hey, an end run is a legal play in football."

Is our democratic republic a game of "football"? America's founders could have instituted direct majoritarian democracy but deliberately chose not to. Instead they created today's system of 50 different state elections of presidential electors to preserve federalism and states' rights.

The founders created a system with checks and balances that included selection of senators by state legislatures, not voters, and selection of presidents by an Electoral College, not voters. In 1913 the 17th Amendment created direct popular election of U.S. senators. In 1961 the 23rd Amendment granted electoral votes to the overwhelmingly partisan Democratic District of Columbia, thereby diluting state electoral votes.

But 704 efforts to change or abolish the Electoral College have failed, according to University of Denver Law Professor Robert Hardaway, author of the 1994 book "The Electoral College and the Constitution: The Case for Preserving Federalism."

Hardaway concedes that the Amar Plan is "legal," but "it would be a terrible idea." He told the Times: "Look at the trauma the country went through having a recount in Florida. Suppose what would happen, in the face of a close national election, if we had to have a recount in every little hamlet."

The National Popular Vote Plan has token Republican supporters, but most of its backers are liberal Democrats eager to break the Republican "electoral lock" of small states in the South, West and Midwest. Koza himself, wrote Times reporter Rick Lyman, was twice a Democratic elector whose "living room is festooned with photographs of him beside former Vice President Al Gore and former President Bill Clinton."

This is the latest scheme from liberal Democrats who want voting rights for felons and the mentally ill (their natural constituency?); Clinton-Gore's Motor Voter with nearly automatic registration for welfare recipients and impediments to removing fraudulent names from voter rolls; and driver's licenses and polling place rules to make it easy for illegal aliens to vote.

And now these same Democrats would steal your vote by letting a stolen vote thousands of miles away cancel yours out. This is how today's Democrats are redefining democracy.