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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