Monthly Archives: February 2021

Should we have a Constitutional Convention?

Should we have a Constitutional Convention? By Peter Burrows 2/23/21 elburropete@gmail.com 

A majority of the popular vote in the presidential elections of 2000 and 2016 went to the candidate who lost the election in The Electoral College, and the same was almost true in the 2020 election, where less than a million votes would have reelected Trump, who would have had 5-6 million fewer popular votes than Biden.  

Since that would have been the third time in the last 20 years, something that hadn’t happened since 1888, 132 years ago, I think we can safely conclude that the popular vote not matching the electoral vote is going to become a more or less permanent feature of presidential elections.  

This is a result of both demographic and political trends. In 1960, over twice as many people lived in urban areas vs rural (126M vs. 54M.) By 2020 this has grown to almost five times as many (273M vs, 57M.) Politically, these urban areas have increasingly become strongholds of the Democrat Party. The last Republican mayor of LA, for example was 20 years ago, and of the largest 100 cities today, 64 have Democrat mayors. 

Since the popular vote was won by the Democrat in the above elections, in no small part because of the voting in those cities, it is no surprise that Democrats are leading the charge to do away with the Electoral College.  This started in earnest following the 2000 election with the formation of the National Popular Vote Interstate Compact, NPVIC, something I wrote about in my last article. (Is ‘The New Republic of Texas’ just the beginning? 2/18/21.) 

The NPVIC is an attempt to change how states cast their Electoral votes, not an attempt to change the Constitution.  That would require a Constitutional amendment, which needs three-quarters of the states (38) to approve, which would be difficult to do when it comes to the Electoral College.  

(Actually, the Constitution does not use the term “Electoral College.” The electors never meet and “college” is from the Latin collegium: a group of people in a common pursuit, and Electoral collegium became Electoral College. I suspect the Founding Fathers were much better acquainted with Latin than we are today.)  

The Constitution, however, provides another way to affect changes to itself. Article V requires that Congress “shall call a Convention for proposing Amendments” upon “Application of the Legislatures of two thirds of the several States.” That would be only 34 states and could be surprisingly easy since, apparently, the states don’t have to agree on WHY they want a Constitutional convention, and because a petition is in effect until rescinded.   

Over the years, 27 states have called for a convention to pass a Balanced Budget Amendment, BBA, and A5C advocates, which is shorthand for Article V Convention, make a strong case that if seven more states, for whatever reason, also call for a convention, Congress must comply. By including six petitions filed more than 100 years ago, they argue that only one more state petition is needed.  

That’s a stretch. Three of those old petitions were to call a convention to pass an amendment banning a civil war, and one was for direct election of senators, something accomplished in 1913 by the Seventeenth Amendment, so it seems doubtful that Congress would accept those as germane. Still, five of those six states are solid blue, and it is no stretch at all to assume each would quickly update their petitions. (New York, New Jersey, Illinois, Oregon and Washington. Kentucy is the sixth.) 

This is not just hypothetical. The Georgia General assembly will soon vote on petitioning for a Balanced Budget Amendment and that would make 34 states if nothing changes.  The V5C advocates are licking their chops over this because they make a very strong case that no such Constitutional Convention can be legally limited to only one, two or any specific number of issues. It would be open season on everything. 

Critics of such a convention say this could lead to the elimination of the Second Amendment, altering the First in nefarious ways, e.g., to allow prosecution of “hate speech,” and the list goes on and on. Ironically, the complexities of a balanced budget amendment could easily derail that effort, but there’s nothing complex about eliminating the Electoral College, which is the number one target of the A5C crowd.  

Depending on how Article V is interpreted, I think such a Convention could be a good idea. It would certainly get a lot of media coverage and would be a crash course in the Constitution and its history, something American citizens are woefully undereducated about. It wasn’t always that way.  Alexis de Tocqueville in ‘Democracy in America,’ published in 1831, noted that it was “extremely rare” to encounter anyone not familiar with “the leading features “of the Constitution.  

Of course, things could go awry. Much would depend on the authority that a Constitutional Convention would have. My reading of Article V is that such a convention would have the authority only to PROPOSE amendments which would go into effect only after being “ratified by the Legislators of three fourths” of the states. Unfortunately, Article V then adds “or by Conventions in three fourths thereof.”  

Does that include the Constitutional Convention itself? I don’t think so because it says conventions, plural, IN the states, not one convention held outside the state. Pending clarification of that little detail, I would be OK with such a convention, even though it might eliminate the Electoral College, something I oppose.  

Realistically, the Electoral College is about to become irrelevant anyway. If the “For the People Act” passes, something I mentioned in “Is America starting to break apart? 2/8/21,” the Democrats will win both the popular vote and the Electoral College from now on.  Might as well make it official.  

Which finally brings me to “The New Republic of North America,” which was going to be the topic of this article until I got involved in the demographic changes that are putting the Electoral College in jeopardy, and which underlie the justification for that hypothetical new nation. Next week. Sigh.  

Is ‘The New Republic of Texas’ just the beginning?

Is ‘The New Republic of Texas’ just the beginning? By Peter Burrows 2/18/21 elburropete@gmil.com 

Next November, Texans will vote on whether the Texas Legislature should develop a plan for reestablishing Texas as an independent country, something I wrote about in “Is America starting to break apart?”  (2/8/21.) Texas could be just the beginning if the National Popular Vote Interstate Compact, hereafter the NPVIC, ever becomes law. Wikipedia has a long, very thorough explanation of NPVIC from which the following two paragraphs have been lifted:  

“The National Popular Vote Interstate Compact (NPVIC) is an agreement among a group of U.S. states and the District of Columbia to award all their electoral votes to whichever presidential candidate wins the overall popular vote in the 50 states and the District of Columbia. The compact is designed to ensure that the candidate who receives the most votes nationwide is elected president, and it would come into effect only when it would guarantee that outcome.[2][3] As of February 2021, it has been adopted by fifteen states and the District of Columbia. These states have 196 electoral votes, which is 36% of the Electoral College and 73% of the 270 votes needed to give the compact legal force 

“—-The project has been supported by editorials in newspapers, including The New York Times,[11] the Chicago Sun-Times, the Los Angeles Times,[15] The Boston Globe,[16] and the Minneapolis Star Tribune,[17] arguing that the existing system discourages voter turnout and leaves emphasis on only a few states and a few issues, while a popular election would equalize voting power. Others have argued against it, including the Honolulu Star-Bulletin.[18] Pete du Pont, a former Governor of Delaware, in an opinion piece in The Wall Street Journal, called the project an “urban power grab” that would shift politics entirely to urban issues in high population states and allow lower caliber candidates to run.[19] A collection of readings pro and con has been assembled by the League of Women Voters.[20] “ 

Whether the last two words in the first paragraph, “legal force,” are a fact or a fantasy is yet to be determined. As it is now, the NPVIC is a blatant attempt to bypass the Electoral College, which in two recent presidential elections has elected a president who didn’t receive a majority of the popular vote: Bush in 2000 and Trump in 2016. It was the 2000 election that started the NPVIC movement, and in 2007 Maryland became the first state to join the NPVIC. 

The 2000 election was the first time in 112 years that the electoral vote differed from the popular vote, which was followed only 16 years later by another such outcome, and then four years later when it nearly happened again in 2020. I don’t think this is just a chance thing; it’s indicative of the new reality of a hopelessly divided America.  (I include the recent 2020 election because while Biden allegedly won by 7 million votes, he could have lost the Electoral College vote with less than a million-vote switch in swing states.)   

The 15 states now in the NPVIC include 8 East Coast states (I included Vermont); 4 West Coast (includes Hawaii); and 3 interior (IL, CO, NM.) As you might expect, all are considered “Blue” states, I.e., regularly vote Democrat. A Constitutional amendment requires approval of 75 percent of the states, which would be 38 states today, a formidable task. By contrast, the NPVIC needs only 18 to 25 states to reach its goal of 270 Electoral College votes, and they’re well over halfway there. (It’s 18 if both TX and FL join; an unlikely scenario.)  

If and when that happens, the Compact is triggered and the states are supposed to cast their votes to the candidate who won the majority of the national vote, regardless of how their state voted, if that candidate would otherwise lose the election in the Electoral College.  When that happens, the legality of the Compact will end up before the Supreme Court, where it will almost certainly be found to be unconstitutional.    

ALMOST certainly. The Constitution does not require Electors to vote according to the popular vote in their state.  Enforcement has been left to the states, where it is very lax and electors, with surprising frequency, don’t always vote as they are supposed to.  

In the 2016 election, for example, three of Hillary Clinton’s electors voted for Colin Powell and one for XL Pipeline protester, Faith Spotted Eagle.  They were fined $1,000 each and last year the Supreme Court, in a 9-0 decision, upheld the fines. As Justice Kagan wrote in her opinion, supported by Justice Thomas, “The Constitution’s text and the nation’s history both support allowing a state to enforce an elector’s pledge to support his party’s nominee and the state voters’ choice for President.”  

If the NVPIC ever gets in front of the Supreme Court, the question would then be if a state also has the authority to direct the electors to vote in OPPOSITION to the state’s voters’ choice for president. I expect such a Supreme Court challenge long before the NPVIC hits its 270 goal. Republicans in one or more of those states will want to determine if they should bother to vote at all.  

Regardless, the Electoral College is probably doomed, one way or another. It’s always been the most contentious part of the Constitution, gathering over 700 attempts to change it over the years, and it has never had public support. Interestingly, the latest Pew poll has 55 percent of the voters in favor of abolishing it, which is down from 71 percent in 1981. I would guess that some people are starting to worry about an “urban power grab.”   

The Texas referendum will be closely watched, but it could be that it’s too late for Texas to secede. There are many new Texans from liberal states, and the Texans who live in urban areas may be just fine with an “urban power grab.” That wouldn’t be the case for The New Republic of North America. More about that hypothetical, but possible, new nation in the next article. 

Is America starting to break apart?

Is America starting to break apart? Peter Burrows –2/8/21 – elburropete@gmail.com 

Have you heard of “Texit?” It is shorthand for Texas + Exit and refers to the state of Texas seceding from the United States and becoming a separate nation, something that hasn’t happened since the Civil War. Texans will vote in a referendum next November on whether to authorize the Texas legislature to determine the feasibility of such a move. 

It’s going to be interesting following the campaign leading up to the vote, as well as seeing how the vote breaks down between urban and rural areas. In my opinion, Texit is a reaction to an increasingly dysfunctional Federal Government, which, in turn, increasingly reflects the dysfunctional, and corrupt, governments of our major cities, all run by the Democrat Party. 

The 2020 election was the eye-opener. Massive election fraud in a few of those major cities very probably swung the election to Biden, and for proof, look no further than to the Democrats themselves. Now that they control everything in Washington, D.C., they are proposing national election laws which will virtually legalize the voter fraud they used so successfully in 2020.  

The Democrat controlled House of Representatives will be voting on something called the “For the People Act,” which will ensure only Democrat “People” will henceforth have a majority in the House. This will complement their pending, permanent, control of the Senate following the addition of four new Democrat senators from the new states of Puerto Rico and Washington, D.C.  

 The demagoguery justifying the “People Act” is an example of “Big Lie” politics writ large. Here’s what Speaker of the House Nancy Pelosi said, without a shred of prof, in support of the bill:  

“House Democrats are doubling down on our longstanding commitment to advance transformational anti-corruption and clean election reforms by again passing H.R. 1, the For the People Act. Our democracy is in a state of deep disrepair. During the 2020 election, Americans had to overcome rampant voter suppression, gerrymandering and a torrent of special interest dark money just to exercise their right to vote.”  

The bill would require same-day voter registration, online registration, at least 15 days of early voting, no requirement for witness signatures or signature matching on mail-in ballots, allow felons to vote, forgives ineligible voters who are “mistakenly” registered, and essentially removes any requirement to prove citizenship. Gosh, what could go wrong? It would also mandate that 16-and 17-year-olds be registered. Pelosi has said we should allow 16-year-olds to vote, so I guess she is laying the groundwork for that.   

I read that the bill (791 pages!) would violate the states’ constitutional right to set election procedures, but I’m not so sure about that. Article 1, Section 4, says “The Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but Congress may at any time by Law make or alter such Regulations —.”    

The extent that Congress can “alter” is probably in the interpretation of “Manner of holding elections,” although the states’ determination of “Times” certainly would be usurped by a national 15-day early voting law. It will probably end up in the Supreme Court, and if found unconstitutional could very well trigger the court-packing implied by Biden’s commission on Supreme Court reform. 

Regardless, Democrats at the national level are well on their way to achieving one-party rule even without their proposed bill because they already are very good at stealing elections. The new bill only makes it easier to do so everywhere, not just the big cities in swing states. 

Not everybody thinks that’s a good idea, hence, Texit.  Texas, with its size, entrepreneurial tradition, long coastline and booming energy industry, would probably “thrive as an independent nation,” as the referendum’s sponsor claims. Also, people forget that Texas, unlike any other lower 48 state, had been an independent nation, The Republic of Texas, for nine years before it became a state in 1845.  Other states don’t have such a rich heritage or such bountiful natural assets.   

Critics claim such a move would be unconstitutional, which is probably correct. Article IV, Section 3, says that “no new state shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more states, or parts of states, without the Consent of the Legislatures of the States concerned AS WELL AS OF THE CONGRESS.” (My emphasis.) 

Some may say that “new state” could also mean “new nation,” but I don’t think that would get too far. In either case, it seems clear that the Constitution prohibits any part of the country from UNILATERALLY changing its political affiliation. 

Still, if push comes to shove, will Congress declare war to prevent an independent Texas? What moral principle would justify such a war?  It is quite possible the nation would prefer an independent Texas to a war-torn, forever alienated Texas. 

Ironically, Texas could claim it is seceding to preserve the Constitution, at least in Texas, and they would have a point. The Constitution is rapidly becoming a dead letter as the Democrats want not just to usurp the states’ Constitutionally delegated election mechanics, but also to vitiate the First Amendment with hate speech laws, chip away at the Second Amendment with national gun-registration, and the list goes on and on.  

The final nail in the Constitution’s coffin would come if an intimidated Supreme Court declares the National Popular Vote movement to be Constitutional.  I hope that never happens, but we’ll look at what effect the NPV could have on the secession movement in my next article.