Electing our President: Popular Vote or Electoral College Vote?
Sept. 26, 2024
Host: Hon. Sam Rohrer
Guest(s): David New
Note: This transcript is taken from a Stand in the Gap Today program aired on 9/26/24. To listen to the podcast, click HERE.
Disclaimer: While reasonable efforts have been made to provide an accurate transcription, the following is a representation of a mechanical transcription and as such, may not be a word for word transcript. Please listen to the audio version for any questions concerning the following dialogue.
Sam Rohrer: Hello and welcome to this Thursday edition of Stand In the Gap Today, and it’s our bimonthly emphasis as well on the Constitution and American history. And we do this bimonthly twice a month with constitutional attorney, author and speaker David New. Now, as we’re all aware, there is a November election on the national calendar and it is very quickly approaching. We all know that we can’t escape it because it’s dominating the news in every regard, but I’m going to suggest that as we’re also well aware, voting, vote counting, the integrity of the vote and the vote counting process has long been compromised and abused in my opinion. I’ve talked a lot about on this program, regardless of what certain people might say and regardless of how optimistic many good people law abiding and patriotic citizens would like to be, the reality is that not one thing has been done in any state or federally to fix any identified problem in the voting process, even officially denying most that there even is a problem, right?
Sam Rohrer: I mean that is a predicament gaslighted by top Republican and Democrat leaders alike, the problems which do exist, and they did exist before 2020, but because nothing has been done, they can’t just logically expect it to get better all of a sudden because it won’t happen that way. The system of voting and vote counting, I’m going to say, is further compromised by the push and it’s been ongoing for a long time, but it’s kind of pushing its way up here in this regard. There are those have not, you’ve been hearing them non-citizens, they need to vote, they need to be able to vote. People are saying, we know that dead people are voting and we know that people have been voting multiple times. These things have existed for a long time. The non-citizens, that is somewhat new. But while these realities are minimized by many say it’s not a big deal, they are truly substantive.
Sam Rohrer: But beyond these issues, some are demanding that the vote process itself for president in particular, should be scrapped and that the president should be elected by popular vote where the person amassing the most votes regardless from where they come that they should win. These people are therefore demanding that the American electoral college system should be thrown into the dustman of history and it says electoral college component that both presidential campaigns are considering today as we speak strategically and as campaign strategy. They’re focusing on a component of this because there could be an issue there and it’s in this area we’re going to discuss today. So the title I’ve chosen to frame our conversation is this Electing our President Popular Vote or Electoral College vote. And with that, David New, I welcome you back to the program, good to have you back and it’s a great subject that you like to talk about and I’d like to talk to you about it.
David New: Well, blessings to you and everyone with us. I’m so glad to be with you.
Sam Rohrer: Dave, let’s get started on this because again, everybody would probably recognize electoral College, but could they actually describe it, tell the origin of it? Probably not. So let’s go hit that question second. Let’s just start here first with popular vote, how would you define popular vote and then contrast popular vote to electoral college and then explain where that came from the electoral college came from and why?
David New: Well, of course the popular vote simply means just that you say for instance, you have a hundred citizens in a community and you’re ready to vote for mayor, and that means you’ve got to get 51% or 51 votes or a majority, maybe the rules might allow a minority majority, but basically the popular vote says whoever gets the most votes wins Electoral college. The word electoral college does not appear in the Constitution and it’s not a college in the academic sense. It’s basically a group of people who are selected by the voters in the state to decide who’s going to be president. If you look at Article two of the Constitution and you see the first paragraph where it talks about a president and a vice president, and then you look at the next two paragraphs and it talks about somebody called electors electors, that is the electoral college. That’s the people who we vote for to become who pick our presidents.
Sam Rohrer: Okay, that’s the process. But just to go beyond that, probably very few people listening right now would say, oh yeah, I remember who I voted for the electoral college. I couldn’t tell you the name of anybody that I elected for the electoral college as an example. So how and when are those a part of the electoral college? How are they selected and didn’t go beyond this? Is this practice the model of an electoral college that is set up like this? Did that exist anywhere in history before it became a part of our American history?
David New: No, and it was created at the Constitutional convention in Philadelphia in 87. To my knowledge, there’s no such, there might be something similar, but not exactly like ours. Ours is unique. Basically the electoral college, what happens is the state legislature will, they’ll pick people to represent Donald Trump and they’ll pick people who will represent Kamala Harris. And when you vote for Donald Trump, you’re voting for the electors, the electoral college people to turn around when it comes time for them to vote to pick and vote for Donald Trump to be president.
Sam Rohrer: Okay. Now let’s just follow this out just a little bit here. When those individuals selected by the legislatures, when it comes time for them to cast their vote electoral college, do they absolutely have to vote for the one that they were theoretically to represent or could they jump ship at that point?
David New: Well, that’s a good question because each state has its own rules. Most states require them to vote for the person that they represent. So if you vote for Donald Trump, the electors in the state that you’re in are required to vote for Donald Trump. But you will find bad actors who vote for other people and sometimes the state government has penalized them with fines and various things like that. And the Supreme Court has upheld those fines that a state can’t require the electors to vote who the popular vote says they should be.
Sam Rohrer: Okay, ladies and gentlemen, so we’re talking electoral how the president is elected popular vote versus electoral college vote. In that last question to David, you can see that there is a potential for unpredictability. Alright, we’re going to leave that there and we’re going to move now to a consideration in this question. Why are governors then selected differently than the president? Alright, David, talking about the electoral college today versus popular vote, and you define that popular vote, ladies and gentlemen, this just simply is that it’s just everybody gets an equal vote no matter where they are, where they live, when it comes to the President and you just tally them all up and whichever candidate gets the most wins. But that is not the electoral college as David just described, and we will do some more filling in of the blanks as we go along. But David, before we went into the break, I ask the question, which I like to start with right now in that is this, people who understand and recognize the electoral college knows that it’s always used in relationship to what we’re talking about today, the electing of our president. But no one has ever heard of the electoral college being involved in our governor’s election. Even though the president is simply the head of the executive branch federally and the governors are head of the executive branch of the states, they appear to be the same. So why aren’t they both involved in the electoral college? Okay, explain that please.
David New: The president and the governors represent different kinds of governments. The difference between a president and a governor is much more than just a federal versus state government. Each government has a different kind of sovereignty. Governors are elected by popular vote because they get their sovereignty directly from the people. The federal government is different. It gets its sovereignty directly from the people, but in a different way. It gets its sovereignty from the state governments. All of the sovereignty that the federal government has come from states which they voluntarily surrendered when they ratified the Constitution. So that means that state governments are fully sovereign governments less what they voluntarily surrendered when they adopted the US Constitution. The federal government has delegated sovereignty. All of it comes from the states. And for that reason, a president is not elected directly by the people like a governor because he or she represents the states. The states are picking the president, the states created the federal government, and they are creating who’s going to lead that federal government vis-a-vis the electoral college.
Sam Rohrer: And I think that that is clear. Let’s just go a little bit deeper into that and explain it because in reality, when people are listening right now and the word states are used, I want you to make a distinction here because everyone listening is a citizen of their state. And when people generally hear that, they think, well, I am and my neighbors and all, we are the state. I’m in Pennsylvania, I’m in the state of Pennsylvania. Or David knew you’re in the state of California or somebody else in the state of North Carolina. But in that context, as a group of individuals forming a state, that’s not what you’re talking about. You’re talking about like a corporate state. Make the distinction between that so people understand when you say the president is actually elected by the states, define that.
David New: Remember when the constitutional convention occurred in 1787 when they voted on the Constitution and the various parts to be in it, they did not vote as James Madison, an individual James Madison. They do not vote individually as Benjamin Franklin. They voted by state. So the state of Massachusetts votes yay on Article one to the Constitution, Virginia, the state of Virginia votes nay on article one of the Constitution, you have one of the clearest. So the states are creating the federal government. If you look at Article seven of the Constitution, it’s one of the most important sentences that people don’t pay attention to and which they really should look at that sentence. In Article seven, the very first sentence read it, let me read it to you.
David New: It says, the ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states. So ratifying the same. Now you see there, it doesn’t say popular vote, it doesn’t even say people. It says states. The states created the federal government and that’s why they should be entitled to pick who the president is going to be. So in a certain sense, there are really, we’re voting for President 50 different ways. Each state, you might think of it as this way, there are really only 50 votes for president, one for each state.
Sam Rohrer: Okay? And that is I think, an important clarification for those listening to know. Alright, now let’s move on a little bit and go to this. You cited that when the constitution was put together the colonies, the states really that came together had a vote per state and they ratified. So they were state representing the people who had elected those people to be in that position in any effect. But in the last segment you made a mention that the electoral college as a word, did not appear in the Constitution. So here’s my question. Where then does the Constitution give rise or credence or establish a foundation for such a thing as the electoral college?
David New: It’s right in article two and in section the second paragraph or clause two, look what it says in Article two, clause two, each state shall appoint in such manners as the legislatures thereof, may direct a number of electors. You see that word electors that ladies and gentlemen refers to the electoral college. That’s who those people are. It’s not you individually as a voter. It’s the electors picked by the state governments to decide who’s going to be president.
Sam Rohrer: Okay? So each state comes up with those selections to represent the state. Okay, let’s go to this next question then. Each state has electors that are a part of the electoral college. Who determines how many electors each legislature in each state selects anyways? Who determines that number? Or does the number not make any difference One, or could a state have 50? I mean who determines that number and why?
David New: The number is determined on two facts. How many senators does each state have and how many members of the House of Representatives does each state have? You take those combined 100 senators and 435 house members, you get 535. Now with the ratification of the 23rd amendment to the constitution, Washington DC was given three electors. That’s how we get the number 568. That’s where the number comes from. You don’t get to choose how many electors you’ve got. So it’s a combination of senators and members of the house. So states with large populations get a lot more electors than a small state. So you take the top five states of the United States in order they are California, Texas, Florida, New York, Pennsylvania. Then you take the bottom five states in the United States in order they are South Dakota, North Dakota, Alaska, Vermont, and the least populous state is Wyoming. Each of these states, regardless of population, get two senators. Now each one. Most of these small little states like Wyoming, they only have one member of the House of representative and that’s it. But you take a state like California, they’ve got dozens of them. So that’s how that’s decided. And you’ve got to get 270 as a traditional rule to become president in the United States.
David New: You got to get a majority.
Sam Rohrer: Okay? Alright, and we’re coming up in a break here. So ladies and gentlemen, one of the things that those who call for a jettison, getting rid of the electoral college as being old and no longer good, often use the word well, it’s just not fair. But there’s an unfairness thing that they say that actually applies to that. And then for many people it’s kind of like, well, anytime anybody says it’s not fair, I guess it’s not fair and that’s not right. And so we got to change it. Well, in reality, maybe it is fair. When we come back here in just a minute, I’m going to ask David to explain that and to make the case if he can, however, and answer this issue of the charge, these apparent unfairness of the electoral college versus the popular vote. So David, you’re an attorney, you make the case and you come back for why it is fair or however you want to describe.
Sam Rohrer: We’ll be back ladies and gentlemen in just a moment. Well welcome back here to the program. We’re halfway through. Our theme today is how the President is elected. I’m entitled this electing our president popular vote or electoral college vote. Voting as we talked about, it’s real issue, isn’t it? The ability to have elections that are believable, credible, supportable, defensible. The integrity of that process is key. Obviously we do not have a process of voting in this country any longer that has the confidence of the people. And a comment just briefly at the beginning, we’re not going there to prove that point other than the fact it’s about as obvious that there’s a problem as the sun that comes up every morning. Now the reality is though, that many of our people are citizens don’t really understand the process that we have in that aspect of it.
Sam Rohrer: What we’re talking the electoral college. I’m talking to David New here today on our focus on the Constitution and American history because this process, this institution called the electoral College has been with us since the beginning of the country. Not really an issue, but it is being made an issue now. So that’s why we’re spending time on it. David, let’s go back and go a little further on this. And that is this, which I had said there are many that are out there in the media that cry, unfair, unjust or whatever when it comes to this matter of the election of the President. And there are some who are crying loud, popular vote, popular vote. It’s the fair thing to do. If there’s more people who vote for a candidate than another, well then of course that candidate needs to win. And on its surface it sounds good. But alright, so here’s my question. How can this apparent unfairness of the electoral college be justified?
David New: Here’s the thing that people need to understand and they say the same thing about the Senate because these small states like Wyoming and South Dakota, they get two senators each. The same number is California. California has almost 40 million people. Wyoming has a little over half a million. Why should Wyoming have the same number of senators in the Senate than California? Here’s the reason. The sovereignty of a state is not based on population. If a state is sovereign, it is sovereign regardless of population. So a government that has sovereignty, that’s a small one, has just as much sovereignty as a super state, as a large government. It has no more sovereignty and no less sovereignty. And the world accepts this. Let’s talk about the United Nations. China has been a member of the United Nations since 1945. They have almost one and a half billion people.
David New: The little country of Lichtenstein, Lichtenstein, they have 40,000 people, 40,000. They joined the UN in 1990. How many votes in the UN does China get and how many votes does Lichtenstein get? They each get one, one vote. Why? Because the sovereignty of Lichtenstein is equal to, and the same as the sovereignty of China. It’s not based on population. If China was allowed to have its population, be the determining factor as to how many votes China would get in the United Nations. Well, with one and a half million people, you can imagine they have a certain advantage. Now, when they formed the Constitution of the United States, when these states got together, the state of Virginia, which was the California of its day, what California is now in terms of its percent of population, Virginia was in 1787. It was a super state. It had about 20% of the population of the United States.
David New: It was huge. Most of the states south of the Mason Dixon line, 51% of the population lived in slave states. Now, when we’re talking about a state like Delaware or Rhode Island, and we’re talking about a giant state like Virginia, remember at that time it included West Virginia, it also included Kentucky. But when you’re talking, the state of Delaware has just as much sovereignty as Virginia does regardless of its population, it is a sovereign state. And for that reason, that’s why the Senate was set up to recognize the sovereignty of each state. The difference between Virginia and Delaware before the Constitution was ratified is the difference between France and England. They are two legally separate nations. True, they signed the articles of Confederation, but that is a voluntary association, but they can pull out at any time they want. That’s why it’s justified to have California with two senators and a small state like with Wyoming having two now, there you go.
David New: Because of that difference between them both having two senators, that gives an enormous advantage in the electoral college for the small states, that was the compromise that had to be made to get the small states to join the union. And what that means is, well, it means that it’s possible you can lose the popular vote and win the electoral college and be president. This is why we take the federal government takes a census every 10 years. It must do that to determine how many House of Representatives there are going to be assigned to each state. Of course the Dakotas and all these states, they get one period, they’re not going to grow. But some other states like California, their populations are going down a little bit and so they’re getting less seats in the House of Representatives. Texas is getting some more, Florida’s getting some more things like that.
David New: So the census is very important. One other thing I would like to say about the electoral college, it is true that it was, and it gave an advantage to the slave states, but that wasn’t because of the electoral college. It was because of the three-fifths rule where slaves are counted as three-fifths of a person in the south. Well, anywhere they were at that time, slavery was in transition and Massachusetts had already eliminated about eight years before the Constitution conviction occurred and the states in the north were already putting the nails on the coffin to slavery. It was on its way out. But in the south that was not the case. So the electoral college initially was and gave an advantage because they had more members of the house as a result of their three fifths of their slaves. But once slavery ended in 1865, we’ve had 150 years of electoral college without slavery and it works just fine. I personally support the electoral college.
Sam Rohrer: All right. And I think you made a good case for that, David, and I’m just looking here at the clock. We’ve got a few minutes left. I was just thinking of a thought here. Protecting the integrity of a small state as saying a Wyoming 500,000 people compared to a California with 40 million people, one would look at that and say, well, isn’t California more important than Wyoming? Well, it’s bigger than Wyoming. But under the concept of whether big or small, there is a aspect in which they are equal, which is the two senator rule. To me, that makes me think of something, an idea that comes off of, I’m going to say a Judeo-Christian view of our founders who believed that each individual was equal and each one was worthy of a vote. Kind of like you’re talking about, a person is not a three fifth person, he’s a five fifth, he’s a whole person. Do you see that that principle had a part of in, of making sure that the small state had equal standing and recognition as compared to the big state?
David New: Yes, I do see the purpose and somebody, people say, well, why would they make that compromise? Why did they have to do it? If they didn’t make the compromise to give the states equal vote in the Senate, this is what would’ve happened. The constitution probably would’ve been ratified. The big states like Virginia and Pennsylvania and all these others, they probably would’ve ratified the Constitution. But some of these smaller states like Delaware and Rhode Island, guess what would’ve happened that would’ve invited Europe and European monarchies and European powers to come in and to cause mischief in the United States to try to break up and divide the country. That’s what they were afraid of. So everybody’s got to come in. Everybody has the same amount of sovereignty regardless of your population. And so every state’s got to be in, everybody’s got to have a skin in the game. Now, here’s the big reason why the electoral college is a great idea. It’s a unifying way to elect the president. If you base your presidential elections on population alone, these small states disappear. They may as well not even exist. And that’s bad
Sam Rohrer: Ladies. And what you’ve just heard right there I think is probably some of the clearest explanation because they’re very practical reasons. Rather than being unfair as those who want to get rid of electoral college would say, you can actually make the case much better that it is in place because it upholds and protects fairness by giving equal representation to the small states that are just as important as a sovereign entity as it is the big one. And we come back, we’re going to talk about the potential problem that the electoral con does present. Well, as we go into the final segment, I’m going to raised a question just before we went into this that there was one problem I said potentially with the electoral college. And I’m going to explain that just a minute. Not so much with the electoral college in the process because David just made a great case and we’re talking about why it actually is a remarkable concept, but there is a potential for complicating perhaps an election outcome.
Sam Rohrer: And I’ll explain that in just a second. But just a reminder here as well, thank you again for listening to the program. Thank you to all who write to us. Thank you for all who choose to partner with us financially. Both of those are really, really important. The letters we love, we appreciate them because they allow us to know where people are listening. And if you do write, let us know what state you’re in. Obviously generally your address will be on a letter of some type, so we’ll know that. But what station you listen to as an example, that’s helpful to know what you think about the program. Some give really fantastic comments and we read everything that you send in that comes in. They meet a lot. So I would encourage you, if you’ve never written to us, take just a moment this week and do it.
Sam Rohrer: You can do it online. Stand in the gap radio.com. You can do it off of the Stand in the Gap app that we have. You can do it there. You could actually call the number that’s on site and just leave a voice message. Any of those would work. And I’d also ask that you would consider partnering with us in prayer every day. It’s very, very important. Every day. It’s important. And to partner with us financially, to help us to communicate faithfully the word, the truth, headline news biblically analyzed all of the things that we do and like here today, examining extraordinarily important components of our constitutional republic in which we are so blessed to live. So all those things you can do, and I would just encourage you to do that and thank you. And also to remind you that this today is a program constitution and American history.
Sam Rohrer: If you’re just listening for the first time we do this focus, David and I, and sometimes another one of the co-hosts will do it as well, but every other Thursday. So you can go onto the archives and you can check every other Thursday and you will find a program that deals with something relative to the Constitution and you will find it to be very, very interesting. Great source of information. The transcript is also available in all of these. Sometimes we say too much, not too much, but a lot of details. You can’t write it down. You can find it in transcript. Okay, David, let’s go back here. And I want to ask you this. It’s an unlikely situation. I don’t know if that’s happened before, but it is a possible scenario. And it’s possible enough that the respective campaigns, Harris campaign, Trump campaign, they are a given thought to this because as we even hear in the news, I mean they are appealing to people to vote for them, either candidate they are.
Sam Rohrer: But where are they spending most of their time in the states where they think they can garner the electoral votes? So they are playing to the electoral college each trying to get their 270 votes, which is what’s required to win. And here’s the question, what if sometime like this election appears to be so close, what if they both came down and they got 269 votes, both of them shy, one vote totals 538, 538 votes, electoral college, but they both have 269 a tie. Is that possible, David? And what happens particularly this year, if that were to happen and there was a tie electoral College, how would that be resolved?
David New: It would be a very interesting election to say the least. It has happened before it happened in the election of John Quincy Adams versus Andrew. Andrew Jackson. Jackson. He got more of the popular vote than John Quincy and he got more electoral college votes than John Quincy. But they did tie because it went to the house and they gave the election to John Quincy Adams. And this has been a real upsetting thing. They are very concerned that this could happen. This 2 69, not every state is a winner take all state. And Nebraska recently had an opportunity to switch over to a winner take all State, but they decided not to do that to the ire of the Republican Party and they can split their electoral college vote. And so Nebraska, which is traditionally Republican, is possible that Sister Kamala could get one of those electoral college votes from Nebraska, which could cause the election to go 2 6 9 versus 2 6 9.
David New: When they are tied in the Electoral College, the 12th Amendment kicks in. And what happens then is that the election is thrown in the House of Representatives. And here again, not popular, not popular vote, state vote picks the president. What happens in the house is that each state has one vote for president in that situation. So Delaware has one vote for president. California has one vote for president. It doesn’t matter about population. Now, if that happens, Trump wins because the Republican party controls 26 of the states. So Trump will get 26 and Sister Kamala may or may not get all 25 of the remaining states. Not every state is completely controlled by one party. So that’s what happens. The 12th Amendment kicks in and then if it is 2, 6, 9, 2 6 9, that’s the way it goes. They vote by state to be the next president. And that’s how it’s decided.
Sam Rohrer: David, I being in office before you being a student of the Constitution, we’ve been either a part of the system or however it may be. But one thing that to me has always been a remarkable thing is the wisdom that our founders had. Because even in this case, like I asked you here right now, what would happen? You were able to quickly provide an answer and say, well, in this case, under this circumstance, here is the process. To me, it says extraordinarily well thought out with contingencies, though rare planned. To me that does not sound at all like the thinking of today. It sounds totally different. Any thoughts on that?
David New: Well, at the convention itself, the electoral college fell in at the last minute. It just sort of happened. In other words, there were some at the convention that won the President to be elected by popular vote. And there were some at the convention that says, that’s crazy because you get these people in the rural areas and they don’t know what’s going on. They don’t have communication. There’s no telephone, no tv, and they’re not qualified to vote very well. And so they didn’t want them to vote. So you had all this mess going on with the President of the United States, how he gets to be selected. It was a big, big issue. And the electoral college was the last standing man, you might say. That’s how that went. Remember ladies and gentlemen, the constitution in many, many areas is not about majorities. Those who think it’s wrong for each senator, each state to have two senators. Remember, if you tried to change the US Constitution with an amendment, look at Article five. You have to get three fourths of the states to do it.
Sam Rohrer: And ladies and gentlemen,
David New: David David State created it.
Sam Rohrer: David, we’re out of time. We’re out of time. Ladies and gentlemen. Thank you so much for being with us today. And there’s so much more that could be said as you knew that David was ready to go, had to cut him off. But go pick up this program, read them transcript, if it’s been helpful to you, pass it along to friends so that they can also be better informed. David New, thank you so much for being with me. Ladies and gentlemen, thank you for being with us today.
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