Katyal and Clement are Wrong

On March 11, 2015, Neal Katyal and Paul Clement, two of Washington’s most prominent attorneys, published a monograph in the Harvard Law Review, titled, “On the Meaning of ‘Natural Born Citizen.’ “ Given that a current high profile candidate for the 2020 Democratic presidential nomination, Senator Kamala Harris (D-CA), is a US citizen, but not a “natural born” citizen, it is imperative that we now reestablish the definition of the term “natural born Citizen” as the Framers intended in Article II, Section 1, Clause V of the US Constitution.

In outlining the principal qualifications required of those who would seek to serve as president or vice president, the Constitution states, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.”

Since all those individuals who were US citizens, but not “natural born” citizens, on the day the Constitution was ratified have been deceased for well over 200 years, the current requirements for the offices of president and vice president are as follows: they must be natural born citizens, at least 35 years of age, who have been US residents for at least 14 years. The age and residency requirements are clear and unambiguous. However, the question of who is, and who is not, a “natural born” citizen has been widely debated since 2008 when Barack Hussein Obama won the Democratic presidential nomination.

Obama, a native Hawaiian, held dual US-British citizenship from August 4, 1961, his date of birth (see Part 2, Section 5(1) of the British Nationality Act of 1948), until December 12, 1963, the date upon which Kenya gained its independence from Great Britain (see Chapter VI, Section 87[3], Subsections 1 and 2, of the 1963 Kenyan Constitution). Obama’s Kenyan citizenship expired automatically under provisions of the 1963 Kenyan constitution on or about August 4, 1984 (see Chapter VI, Section 97[1] of the 1963 Kenyan Constitution). However, his dual US-Kenyan citizenship was restored under Chapter 3, Section 14 of a revised Kenyan Constitution adopted on August 5, 2010, making Obama a lifelong citizen of Kenya “by birth.”

The Katyal-Clement monograph was intended to be a definitive piece on the meaning of the term “natural born Citizen. However, their joint opinion on that subject is far from adequate, far from scholarly.

Katyal is a graduate of Yale Law School where he was an editor of the Yale Law Journal. He subsequently served as Acting Solicitor General of the United States under Barack Obama from May 2010 until June 2011. Clement is a graduate of Harvard Law School where he served as Supreme Court Editor of the Harvard Law Review. He later served as Solicitor General of the United States in the George W. Bush administration from July 2004 until June 2008.

With credentials such as those, one would expect that their analysis of a principal qualification for the US presidency would be far more probative. For example, while Katyal and Clement express themselves adequately on the definition of the term “citizen,” they totally miss the mark in their stated purpose of defining the term “natural born Citizen.” Instead, like so many who believe the Constitution to be a “living” document, subject only to the political whims of the day, they conflate the terms “citizen” and “natural born Citizen” as if they were synonymous, totally ignoring the fact that the Framers drew a clear distinction between the two terms, vis-à-vis “… natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution…”

In other words, they fail to examine why the Framers found it necessary to include what is, in effect, a “grandfather clause,” conferring presidential eligibility on those who were otherwise unable to meet the “natural born” standard at the time the Constitution was ratified in June 1788. And since the age and residency requirements were never at issue, it is abundantly clear that the Framers were concerned that there were no 35-year-old “natural born” citizens available to serve as president or vice president during the earliest years of our republic.

On June 21, 1788, the oldest “natural born” citizens in the United States were less than twelve years old, having been born in the 24-hour period following the signing of the Declaration of Independence, when their parents became American citizens. The first US president who was at least 35 years of age, who had been a resident of the United States for at least 14 years, and whose natural born status was clear and unencumbered, was Martin Van Buren, born on December 5, 1782, six years and five months after the Declaration of Independence, when both of his parents became US citizens.

Clearly, the one presidential eligibility factor that separates presidents who were “natural born” citizens from those who were merely “citizens,” made eligible under the grandfather clause .following the word “or” in Article II, Section 1, Clause V, is a question of parental citizenship.

In the entire 243-year history of the United States, 36 of our 45 presidents had parents, both of whom were US citizens when the future presidents were born, while nine… Washington, Adams, Jefferson, Madison, Monroe, J.Q. Adams, Jackson, Arthur, and Obama… had parents, one or both of whom were non-US citizens when the future presidents were born. Of these, the first seven presidents were made eligible under the “grandfather clause” cited above, while presidents Arthur and Obama fall outside the required presidential eligibility standard.

When the Framers met in Philadelphia in September 1787 to approve the final draft of the U.S. Constitution, the physical scars of the War of Independence from Great Britain were still visible all around them and a deep-seated animosity toward all things British colored every aspect of their daily lives. So is it even remotely conceivable that, just five years and eleven months after the British surrendered at Yorktown, the Framers would have sent to the states for ratification a Constitution that would allow an individual with divided loyalties… e.g. an individual with dual US-British citizenshipto serve as president of the United States and commander-in-chief of the Army and the Navy? Not likely. It is a preposterous notion on its face. To believe that they would have done so requires a willing suspension of reason.

The Framers rightly understood that the most influential factor in a child’s upbringing is the parenting he/she receives as a child, and that the cultural, philosophical, political, and religious influence of a child’s parents fundamentally establishes the direction of his/her future conduct and intellectual development. Accordingly, what the Framers feared most and what caused them to limit access to the presidency only to the “natural born” was the fear that a future president… during his formative years and during the years in which he was developing intellectually… would be exposed to an environment or an ideology which might cause him to reject the values and the principles embodied in the U.S. Constitution.

And while Barack Obama has proven to be a living example of what the Framers feared most, another example of “what might have been” is Senator Ted Cruz (R-TX). Born in Canada, his father was a citizen of Cuba who, as a teenager, was a member of the Cuban resistance headed by Fidel Castro. He made his way to the United States in 1957, enrolled at the University of Texas, and graduated with a degree in mathematics in 1961. Later, after being transferred to Calgary, Alberta, Canada, and acquiring Canadian citizenship, he and his American wife became parents of a son, Raphael Edward “Ted” Cruz, the current junior senator from the State of Texas and a leading contender for the Republican presidential nomination in 2016.

During that campaign, the American people were convinced that the Cruzes, father and son, were both solidly anti-Communist patriots. But that’s only what we were told. What if the exact opposite were true? What if the elder Cruz had been a dedicated Communist, a Fidelista in sheep’s clothing? And what if he had spent decades carefully indoctrinating his own son in all the benefits of life in a socialist Utopia? His son, a conservative firebrand in the US Senate, would have become the perfect “Manchurian Candidate.” It is the fear of that eventuality that caused the Framers to exclude all but the “natural born” from access to the US presidency.

But now, less than two years prior to the 2020 presidential election, we find yet another ineligible Democrat, Senator Kamala Harris (D-CA), as a credible candidate… most likely for the vice presidency. As they did in 2008, Democrats are once again sanctioning a candidate who is not eligible to serve as president or vice president, the only two jobs in the entire United States… public sector and private sector combined… that require the incumbents to be “natural born” US citizens..

Harris’s mother, Shyamala Gopalan, emigrated to the US from India in 1960 and her father, Donald Harris, emigrated to the US from Jamaica in 1961.  Under US law, an individual cannot apply for citizenship until they’ve held a “green card” for a minimum of five years.  Kamala Harris was born on October 20, 1964.  At best, her mother was a legal non-citizen resident of the US for just 4 years, 9 months, and 20 days when Sen. Harris was born. Her father was, at best, a legal non-citizen resident for just 3 years, 9 months, and 20 days when she was born. Neither parent could possibly have been a U.S. citizen when Kamala Harris was born.

Why is this important? The American people are understandably concerned that, in the early years of the 21st century, we are fast losing our grasp on the governing principles and institutions that have made us the greatest nation on Earth. We have seen the Democratic Party weaponize the Internal Revenue Service; we have seen Democrats provide arms and ammunition to human traffickers and drug smugglers south of the Mexican border; we have watched helplessly as Democrats at the federal state, and local level create sanctuary cities, so as to import illegal aliens who will become future Democratic voters; we have seen a thoroughly corrupt Democratic administration ignore the repeated violations of the Espionage Act of 1917 by a Democratic Secretary of State; and we have seen Democrats weaponize the entire legal system of the United States, destroying the integrity and the reputation of the world’s foremost law enforcement agency in the process. To date, no one has been called to accept responsibility for those crimes.

We cannot continue down this path; we must return to a time when constitutional principles are once again sacrosanct. But we cannot achieve that end when some of our best legal minds join with those who would degrade our precious Constitution for partisan political advantage. Katyal and Clement are wrong and they should admit their error.

Paul R. Hollrah is a retired government relations executive and a two-time member of the U.S. Electoral College. He currently lives and writes among the hills and lakes of northeast Oklahoma’s Green Country.








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Who Will Apologize to Clarence Thomas?

On Thursday, April 25, 2019, after weeks of will-he-or-won’t-he media speculation, former vice president Joe Biden finally made it official. After serving two terms as Barack Obama’s vice president, Biden announced that he would enter the 2020 Democratic primaries, hoping to be the one selected to face Donald Trump in the 2020 General Election.

Biden is far from a novice in presidential politics; his 2019-20 run will be his third attempt. But before making his official announcement there was one “loose end” that had to tie down if he expected to win his share of the women’s vote in 2020. He would have to call Prof. Anita Hill to apologize for what she considers to be her shabby “mistreatment” during the Clarence Thomas confirmation hearings in October 1991, when he chaired the Senate Judiciary Committee.

As Hill described the conversation to the New York Times, Biden said, “I cannot be satisfied by simply saying I’m sorry for what happened to you. I will be satisfied when I know there is real change and real accountability and real purpose.” But Hill was far from satisfied with what she considered to be a halfhearted apology. Instead, she complained that one apology does not make up for the pain suffered by victims of sexual violence when they saw how poorly she was treated by members of the Senate Judiciary Committee during the Thomas confirmation hearings.

However, looking back from the perspective of 2019, we are forced to ask, “Does Anita Hill really deserve an apology?” Instead, shouldn’t we be asking, “Who will apologize to Clarence Thomas for the humiliation he suffered at the hands of Judiciary Committee Democrats?”

Clarence Thomas was nominated as an Associate Justice by President George H.W. Bush on July 1, 1991. It was a great victory for conservatives to see Bush nominate a conservative black man to replace Thurgood Marshall, a liberal black man, on the high court. However, if Thomas had known in advance the physical and emotional agony he would experience in the weeks and months ahead, he would not have hesitated; he would have declined the president’s nomination.

From 1974 to 1977, following graduation from Yale Law School, Thomas served as an Assistant Attorney General in the office of Missouri Attorney General John Danforth (later Governor of Missouri and United States Senator), whom Thomas met at Yale Law School. So it was that then-Senator John Danforth (R-MO) became Thomas’s Senate escort, shepherding him through a full month of “murder room” preparation and courtesy calls on senators.

It was a grueling experience, both physically and emotionally, but the worst of it was having to silently endure the non-stop attacks of liberals, Democrats, and every left-wing interest group in the country. As Thomas described it, “(The attacks) were immediate. The attacks did nothing but make clear my foreboding… It was like I was about to die… the whole summer was like a rerun of my life, backwards and forward… I mean, everything was like that, and I was scared to death. I was frightened and I wanted to go home.”

But the worst was yet to come. On September 16, a member of Senator Strom Thurmond’s staff overheard a conversation between Senator Biden and Judiciary Committee chief counsel Ron Klain. According to an account in former Senator Jack Danforth’s book, Resurrection (Viking Penguin, 1994), Klain argued, “She could testify behind a screen.” To which Biden replied, “That’s ridiculous. You can’t do that. This isn’t the Soviet Union.”

On Monday, September 23, Thomas’s worst fears were realized. He and his supporters learned that one of his former employee, a black woman named Anita Hill, had submitted a four-page complaint to the Senate Judiciary Committee, alleging that, when she worked for him at the Dept. of Education and the Equal Employment Opportunity Commission (EEOC) in 1981-83, Thomas had attempted to date her, and that, on more than one occasion, he made off-color sexual remarks in her presence. Thomas did not learn the details of Hill’s allegations until he was informed by FBI agents at his home on Wednesday, September 25, five days after the Judiciary Committee completed their hearings. In her committee testimony on October 11, Hill alleged that in one instance he made reference to a “pubic hair on a Coke can.” She also alleged that on another occasion, he made reference to a pornographic character named “Long Dong Silver.”

Thomas was stunned. The Supreme Court confirmation was his third Senate confirmation. If Hill was still upset about something she remembered him saying nearly ten years earlier, why didn’t she come forward when Ronald Reagan appointed him to head the EEOC, or when George H.W. Bush appointed him to the United States Court of Appeals for the D.C. circuit, the second highest court in the land? Thomas’s phone logs showed that Hill had telephoned him “just to check in” at least eleven times between 1984 and 1990. If she was so upset with him that she would attempt to ruin his life in 1991, what were all those friendly calls about?

Clarence Thomas completed his confirmation testimony on Monday, September 16. And with four days of testimony by other witnesses, the hearings were completed on Friday, September 20. All that remained was for Chairman Biden to set the time and date for the committee vote on confirmation… unless, of course, the Hill allegations became public knowledge in the interim.

But, as Thomas should have known, confidentiality in the nation’s capital is never a certainty; only a hope. In the days immediately following the close of the Judiciary Committee hearings, someone on the committee staff leaked the Hill allegations to the media. The confirmation was put on hold and committee Democrats began to talk in terms of a delay in the committee vote.

Overnight, the Clarence Thomas/Anita Hill confrontation became the lead story in every news magazine, every newspaper, and in every radio and television broadcast. Clarence Thomas, a famously quiet and private man, was totally devastated. As Jack Danforth wrote in his book, Resurrection, Clarence said, “I was physically ill. I didn’t throw up; I couldn’t eat. I couldn’t do anything. My stomach was sick. I felt like throwing up… I forget which morning it was that Virginia threw up… Then my mother calls up and she saw it and she couldn’t go back to work… she was sick. My brother called up and my sister-in-law called. They were all in tears.”

The Thomas family was devastated. They were being treated to the same family destruction that the Bork family suffered in 1987 and the Kavanaugh family suffered in 2018. According to Jack Danforth, Ginni Thomas told him that the fact that “a future justice of the Supreme Court was writhing on the floor is awful enough to tell. But it must be told, for this is the result when there are those who believe a cause justifies the destruction of a person.” What they were doing to Clarence Thomas was simply standard Democratic tactics. They are truly despicable people.

However, while Clarence Thomas agonized at his home in Virginia, his Republican supporters in the Senate and at the White House were busy trying to make some sense of the Anita Hill attack strategy, and they were having some success. For example, they learned that the “pubic hair on a Coke can” reference was almost certainly taken from a scene in The Exorcist. They also learned in a phone call from Evan Kemp, Thomas’s successor at the EEOC, that “Long Dong Silver” was likely a reference to a well-known character in the literature of employment discrimination law… subject matter that Anita Hill taught at Oral Roberts University in Tulsa, Oklahoma.

It was also learned that, following Anita Hill’s dramatic committee testimony, the White House received telephone calls from four or five psychiatrists, each describing the same hypothesis for Hill’s allegations. As former senator Danforth wrote in Resurrection, “The hypothesis was known as erotomania, a rare delusion of some women that particular men in positions of power, such as supervisors or political figures, have romantic interests in them.” As the psychiatrists described the disorder, a woman with erotomania could be quite specific in describing fantasized behavior by a man and would be so thoroughly convinced that the behavior had actually occurred that she would be capable of passing a polygraph test.

Chairman Biden scheduled the second round of hearings for Friday, October 11, at 10:00 AM However when the Thomases retired at 11:30 PM on Thursday evening, October 10, he was so overcome with physical and emotional pain that he was unable to produce a statement. As Ginni Thomas recalls, he was up again at 1:00 AM and back at the kitchen table. With his head in his hands and a prayer on his lips, he resolved to discard all of his previous work and to begin again.

Thomas recalls thinking, “(Let) me just think. Let me open up to the Holy Spirit. Then I just started from square one. Not with other people’s ideas. I looked at the draft and I just started writing. I continued writing.” In his statement, Thomas did not attempt to respond to Anita Hill’s charges. Instead, he wrote of what the confirmation hearings had done to him, and why it was wrong. By 4:45 AM the statement was complete and the Thomases retired until 6:00 AM. The night before the biggest day in his life, Clarence Thomas slept for just fifteen minutes.

Clarence Thomas was given the opportunity to appear first, with an opportunity for a rebuttal after Anita Hill’s testimony. The statement that Clarence Thomas read from the witness table in the Senate Caucus Room at 10:00 AM on Friday, October 11, 1991, was the most devastating rebuke that a committee of the United States Senate had ever absorbed.

In his closing remarks after 9:00 PM, Thomas uttered the most memorable lines from his day of testimony… lines that will forever be a stain on the United States Senate. He said, “I think that this today is a travesty. I think that it is disgusting. I think that this hearing should never occur in America. This is a case in which this sleaze, this dirt, was searched for by staffers of members of this committee, was then leaked to the media, and this committee and this body validated it and displayed it in prime time over our entire nation…

“This is a circus. It is a national disgrace. And from my standpoint as a black American, as far as I am concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that, unless you kowtow to an old order, this is what will happen to you, you will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree.”

What has brought this sad chapter in U.S. Senate history back to relevancy is Joe Biden’s return to the presidential campaign trail. Specifically, the Hill/Thomas controversy was given new life on Friday, April 26, during Biden’s appearance on ABC’s The View. Confronted by host Joy Behar with rumors of Anita Hill’s discomfort with Biden’s Judiciary Committee performance in 1991, Biden claimed repeatedly that he had believed Anita Hill from the moment he heard her allegations against Clarence Thomas in 1991.

This was a complete contradiction of a recent report by Mollie Hemingway, senior editor at The Federalist, who quotes the late Senator Arlen Specter as saying that, in 1998, Biden had admitted to him that, “It was clear to me from (her response to Specter’s questions) that she was lying.” Following the close of the hearings, national opinion polls showed that 58% of Americans believed Clarence Thomas, while only 24% believed Anita Hill.

Clarence Thomas was confirmed by the U.S. Senate on October 23, 1991 by a largely party-line vote of 52-48. Of the 48 senators who voted “No” on Thomas’s confirmation, only two, Senators Packwood (R-OR) and Jeffords (R-VT), were Republicans. In spite of what Thomas had been put through at the hands of Judiciary Committee Democrats, 46 of them still voted not to confirm him.

Although not much has changed on the Democrat side of the aisle in the U.S. Senate, let us hope that the Biden candidacy in 2020 will at least reopen the Clarence Thomas confirmation debacle to public scrutiny. Clarence Thomas is a good man. He did not deserve what happened to him. Democrats owe Justice Thomas a very big apology, but that’s just not the kind of thing Democrats do.

Paul R. Hollrah is a retired government relations executive and a two-time member of the U.S. Electoral College. He currently lives and writes among the hills and lakes of northeast Oklahoma’s Green Country.


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Electoral College Reform – Let’s Get It Right

As a two-term member of the U.S. Electoral College, I am very much concerned about political attacks on the institution and threats to either repeal it or circumvent it. While Democrats are understandably upset… having won the national popular vote in 2000 and 2016, while losing both contests in the Electoral College… the only doable reform that is currently under discussion is the national popular vote proposal offered by the National Popular Vote Interstate Compact (NPVIC). But now that the 2020 campaign season is well under way, with President Trump and essentially all of the twenty or more Democratic candidates in favor of either Electoral College reform or Article V repeal, it is time to develop some real understanding of that critically important but little-understood institution.

The 2000 Bush-Cheney victory caused many Electoral College critics to search for ways in which to bypass the Electoral College. With the active support of Republicans such as former Illinois congressman John Anderson, the National Popular Vote Interstate Compact was created. The NPVIC actively seeks support among the legislatures of the fifty states in support of a rule requiring that all of a member state’s electoral votes be cast for the candidates for president and vice president who receive a majority of the national popular vote… regardless of the popular vote count in each of the Compact states. However, one wonders if they are aware of the potential unintended consequences if they are successful.

In the 2016 General Election, Democrat Hillary Clinton enjoyed a 2,868,686-vote advantage in the national popular vote, while her Republican opponent, Donald Trump, won a decisive 306 to 232 vote victory in the Electoral College. It was eerily reminiscent of the 2000 General Election in which Democrat Al Gore enjoyed a 543,900-vote plurality in the national popular vote, while George W. Bush won a razor-thin 271 to 266 vote majority in the Electoral College.

What NPVIC proponents have apparently overlooked is that, in the 2000 presidential election, a switch of just 271,951 votes (just one vote out of every 373 votes cast) would have given Bush-Cheney a narrow popular vote victory, along with a 271 to 266 vote victory in the Electoral College. That popular vote shortfall could have been overcome with just one more well-placed ad buy attacking carefully selected weaknesses in the Clinton-Gore record.

On April 3, 2019, New Mexico joined California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, Washington, and the District of Columbia as the newest member of the Compact. The addition of New Mexico brought 189 of the required 270 electoral votes under the popular vote umbrella. If, and when, states representing at least 270 electoral votes, a simple majority in the Electoral College, have joined the Compact, then and only then will those states be able to eliminate any possibility of ever again electing a president and vice president with less than a majority of the national popular vote.

However, if the supporters of the NPVIC would do their homework, they would understand that, had the NPVIC rule been in effect in 2000, in every blue state in the nation, and had Bush-Cheney been able to eke out a narrow victory in the national popular vote, the states of the NPVIC would have been required, by law, to cast all 270 of their electoral votes for George Bush and Dick Cheney, in spite of the fact that 21 of the 22 states in the NPVIC would have cast a majority of their popular votes for Gore-Lieberman. In that event, the Electoral College vote would have been an unprecedented 538-0 victory for Bush-Cheney over Gore-Lieberman… an outcome that the Framers could never have foreseen.

So, if the Electoral College and the winner-take-all approach utilized by 48 of our 50 states is causing so much political heartburn for so many Americans, what are our alternatives? Many critics suggest that we simply proceed with efforts to amend the U.S. Constitution by repealing all portions of Article II, Section 1 establishing the Electoral College.

To eliminate the Electoral College by constitutional amendment would require both Houses of Congress to approve a joint resolution by a 2/3 majority vote. The proposed amendment would then be sent to the governors of the fifty states who, in turn, would formally submit the amendment to their legislatures for ratification. A proposed amendment becomes effective only when it is ratified by three-fourths (38) of the 50 states.

While repeal by constitutional amendment may be the preferred solution by many in the political arena, it is unlikely that such a joint resolution could ever receive a 2/3 vote in both Houses of Congress, let alone win ratification by 38 of the 50 states.

A proposal that would be sure to attract broad support among conservatives and Republicans… a proposal that would bring the selection of presidents and vice presidents as close as possible to the will of the people, while retaining the Electoral College… is an electoral system based on the popular vote within each county in the nation. For example, in 2012, Barack Obama carried 653 of the 3,100 counties in the country, compared to Romney’s 2,447 counties. In 2016, Hillary Clinton carried just 568 counties, compared to Donald Trump’s 2,532 counties.

So, is there a reform that, while not satisfying every concern of every Electoral College critic, would: a) avoid the anguish of a prolonged constitutional amendment process, b) provide fairness to all candidates and political parties, c) avoid creating a system in which unanimous votes in the Electoral College are possible, d) eliminate the much-despised “winner-take-all” concept of the present system, and e) bring the selection of presidents and vice presidents much closer to the people?

If supporters of the NPVIC are truly interested in Electoral College reform that is far more democratic than the winner-take-all system now utilized by 48 states and the District of Columbia, they might want to consider adopting the allocation system now used by the states of Maine and Nebraska. Under that system, the winner of the statewide popular vote receives both of the state’s two at-large electoral votes. The remaining electoral votes are allocated based on the winner of the popular vote in each of the state’s congressional districts. For example, in 2016, Hillary Clinton won the statewide popular vote in the State of Maine. In doing so, she was awarded the state’s two at-large electoral votes. However, in Maine’s two congressional districts, Clinton won the popular vote in the 1st C.D. while Trump won the popular vote in the 2nd C.D. As a result, Clinton won three electoral votes in Maine, while Trump won one. In Nebraska, Trump won the popular vote in each of the state’s three congressional districts. As a result, he was awarded all five of Nebraska’s electoral votes.

The Maine-Nebraska electoral system would deemphasize the key battleground states such as Florida, North Carolina, Ohio, and Virginia and require candidates to campaign in all fifty states. As matters now stand, presidential candidates spend little time in states such as California, New York, Oklahoma, and Texas because the outcome of presidential voting in those states is almost always a foregone conclusion. Had the Maine-Nebraska system been in place for the 2012 General Election, Obama would have found it necessary to defend the 15 votes that Romney could have won in California and the 6 votes he could have won in New York, while Romney could not have ignored the 12 electoral votes that Obama might have captured in Texas.

In November 2016, Donald Trump could not have ignored the 14 electoral votes available to him in California or the 9 electoral votes available to him in New York. Conversely, Hillary Clinton could not have ignored the 11 electoral votes available to her in Texas or the 5 electoral votes available to her in Michigan. By assigning more importance to local elections under the Maine-Nebraska system, interest in local politics would be enhanced and much of the negative impact of the 17th Amendment would be reversed.

Under the Maine-Nebraska system, Hillary Clinton would have gained electoral votes in nineteen states and lost votes in twelve states. Under the winner-take-all system, Trump shut out Clinton in thirty-one states, while Clinton shut out Trump in nineteen states and the District of Columbia. Under the Maine-Nebraska system, Trump would have shut out Clinton in only eleven states, while Clinton would have shut out Trump in just eight states.

In 2016, essentially all of the campaigning took place in twelve states: Arizona, Colorado, Florida, Iowa, Michigan, Nevada, New Hampshire, North Carolina, Ohio, Pennsylvania, Virginia, and Wisconsin. However, had all states used the Maine-Nebraska system, that intensity would have spread to six additional states: California, Illinois, New Jersey, New York, Texas, and Washington… four of the six being among our most populous states.

Electoral College critics would be well advised to do a bit more research into the potential unintended consequence of scuttling the Electoral College in favor of the national popular vote. While it is understandable that they would see unfairness in presidential elections in which the candidates receiving a plurality of the national popular vote could lose the election in the Electoral College, they will be far more upset if, after convincing state legislatures to adopt the NPVIC formula, they find that their efforts have produced a system in which unanimous 538 to 0 votes in the Electoral College, for candidates who barely eked out a majority in the national popular vote, become a real possibility. Clearly, this is not what the Framers envisioned when they established the Electoral College.

Paul R. Hollrah is a retired government relations executive and a two-time member of the U.S. Electoral College. He currently lives and writes among the hills and lakes of northeast Oklahoma’s Green Country.

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