Thursday, June 27, 2019

National Popular Vote Interstate Compact

According to Wikipedia, “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 idea is the brainchild of those who oppose of the Constitutional process of electing U. S. Presidents by electoral vote but rather desire them to be elected by a majority popular vote. The NPVIC therefore aims to make an end-run around the Constitution – rather than changing it head-on with an amendment. It would “ensure that the candidate who receives the most votes nationwide is elected president.”

I had heard of this concept and its movement before, but had not paid much attention to it. However (again according to Wikipedia), “As of June 2019, it has been adopted by fifteen states and the District of Columbia. Together, they have 196 electoral votes, which is 36.4% of the Electoral College and 72.6% of the 270 votes needed to give the compact legal force.” Commenters both pro and con say that this initiative is (1) designed to ensure that the candidate who receives the most votes nationwide is elected president, and (2) that a state’s electoral process change would come into effect only when it would guarantee that outcome. [emp. mine]

According to its proponents, this measure is constitutional because Article II, Section 1 of the Constitution says, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress…” Their point, then, is that the appointment of electors falls under the purview of the States. Detractors, however, note that the power of the state is to choose electors, but they cannot tell him for whom to vote. Some also believe it violates the Constitution’s compact clause by states entering into a compact to change the outcome of the presidential election. The initiative is not merely a state changing its electoral process but multiple states entering into a compact one with another to accomplish a designed result.

Here are two quotes from a report by the Congressional Research Service on National Popular Vote. First from the “Summary” (unpaged) of “The National Popular Vote (NPV) Initiative: Direct Election of the President by Interstate Compact”:
The National Popular Vote (NPV) initiative proposes an agreement among the states, an interstate compact that would effectively achieve direct popular election of the President and Vice President without a constitutional amendment. It relies on the Constitution’s grant of authority to the states in Article II, Section 1 to appoint presidential electors “in such Manner as the Legislature thereof may direct....” Any state that joins the NPV compact pledges to award all its electoral votes to the presidential ticket that wins the most popular votes nationwide, regardless of who wins in that particular state. The number of electoral votes won by the national popular vote winners would depend on the number of electoral votes controlled by NPV member states. The compact would, however, come into effect only if its success has been assured; that is, only if states controlling a majority of electoral votes (270 or more) join the compact. [bold mine]
Second, from page 20:
Whether the NPV initiative requires congressional consent under the Compact Clause first requires a determination as to whether NPV even constitutes an interstate compact. At times, its supporters have resisted framing the initiative as an interstate compact, arguably out of concern for running afoul of the Compact Clause’s provisions. For example, Professor Akhil Amar has argued that because the initiative does not create a “new interstate governmental apparatus,” the NPV should not be considered an interstate compact, as NPV compact signatory states are merely exercising power collectively that each state could exercise on its own. It is unclear, however, whether the creation of a new interstate governmental entity formed out of an agreement between two or more states is necessary, as opposed to sufficient, in order to deem an agreement as being an interstate compact subject to the Compact Clause.
The Congressional Research Service finds that it is unclear whether this National Popular Vote Compact is “subject to the Compact Clause.” This is mainly where the debate will be and where the compact will be challenged in court. When I first heard the idea of a state allocating their electoral votes to the “popular-vote-getter,” it did not seem to me that it would be unconstitutional – since states already determine how they allocate their electoral votes. For example, states already decide whether the winner in their states get all the electoral votes, or whether to parcel them out.[i] I had not considered a possible violation of the Compact Clause or that states were colluding one with another. However, it is worth considering the fact that states are compacting (from a positive viewpoint) or conspiring (from a negative viewpoint) to effect a change in the Constitution without going through the process of amending it.

Whether or not it is constitutional, I do not like the idea. First, I think the present Electoral College system works and has served us well from the beginning of our Republic. Part of the initiative seems like sour grapes. Democrats have recently lost twice under the rules, so now they want to change the rules.[ii] Secondly, under this compact a state overrides the intent of the popular vote of its own citizens! How weird and arrogant would want to throw away the votes of their own people. If enough American citizens want to elect the President of the United States by nationwide popular vote, let them do it through their representatives presenting a constitutional amendment rather than states working around the Constitution. If so, let it be a true popular vote, rather than a mongrel system – one that hangs on to the Electoral College while not reflecting the will of the people who voted for their electors.

Best yet, let’s leave it alone!

Here are two links on the topic

[i] 48 states have a winner-take-all system – the winner of the majority of the votes of the citizens of the state will receive all of the state’s electoral votes. Two states – Maine and Nebraska – divide their electoral votes proportionately by congressional district, instead of giving all the electoral votes to the candidate who wins the statewide popular vote.
[ii] Both George W. Bush in 2000 and Donald Trump in 2016 lost the popular vote but won the electoral vote, thereby becoming president. In addition, the following men lost the popular vote but won the presidency – Benjamin Harrison in 1888, Rutherford B. Hayes in 1876, and John Quincy Adams in 1824. Harrison and Hayes won by electoral vote. In the case of Adams (the first year the popular vote was even recorded) no candidate had enough electoral votes and the House of Representatives decided the outcome of the election.

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