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Tuesday, 30 October 2012 09:30

National Popular Vote: Progress or Problem? (Part 2 of 3)

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In Part 1 of this series, we reported on the efforts underway by many to abolish the electoral college and to have the winner of the upcoming presidential election decided by a national popular vote (NPV). Several states have passed — and many others are considering — bills that would effect a de facto destruction of the Constitution's mandate regarding the method for election of the president.

Despite minor differences in the various NPV bills, there are a few aspects common to all of them. First, a member state shall hold presidential elections by statewide popular vote. Second, the chief election official of the state is required to certify the results of the election and report the final vote tally to his colleagues in the other members of the compact. Third, an official shall determine the “national popular vote totals” for each candidate in each state (even those not participating in the scheme). Finally, the electoral votes of each signatory state are awarded to the candidate who wins the popular vote count.

The compact specifies that it shall take effect only after enactment of NPV legislation has occurred in states with a combined number of electoral votes equal to a controlling majority (currently 270). Should this occur, it would mean that whoever wins the national popular vote would become president.

In a document entitled “Every Vote Equal,” published by National Popular Vote, Inc., the authors proclaim their supposed plan for dealing with the Electoral College:

The Electoral College would remain intact under the proposed compact. The compact would simply change the Electoral College from an institution that reflects the voters’ state-by-state choices (or, in the case of Maine and Nebraska, district-wide choices) into a body that reflects the voters’ nationwide choice. Specifically, the proposed compact would require that each member state award its electoral votes to the presidential candidate who received the largest number of popular votes in all 50 states and the District of Columbia.

Despite these well-worded assurances, however, should the NPV compact become the method by which the president is elected, the Electoral College will effectively be dead. Although, strictly speaking, the Electoral College would remain intact, it would exist in name only. Its republican, anti-democratic essence would be removed, and it would be left as a mere Potemkin structure. That is to say, it would maintain the appearance of constitutional republicanism, but be bereft of any such workings and as such unable to provide any of the protections against tyranny for which it was originally designed.

Put simply, the National Popular Vote initiative would radically alter the constitutional process for picking a president and would do so without following the method provided in the Constitution for changing that document.

This insidious plot would be frightening enough were it merely the academic musings of some apparatchik in a think tank or university. Unfortunately, there is a substantial thrust behind passage of an interstate compact wherein the signatories would covenant to abide by the letter and spirit of the National Popular Vote plan.

Originators of the NPV insist that the compact would be legal without congressional approval. The Every Vote Equal organization points to a Supreme Court decision handed down in 1893 in the case of Virginia v. Tennessee, which declares that congressional consent is only necessary when an agreement threatens federal supremacy. However, this decision trumps the plain language of Article I, Section 10 of the Constitution, which clearly states: “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State.”

Remarkably, there has been noticeable progress on the state level toward passage of one or another version of the NPV Interstate Compact (NPVIC).

In 2007, NPVIC legislation was introduced in 42 of the 50 state legislatures. It was passed by one or more of the legislative bodies in Arkansas, California, Colorado, Hawaii (where the Governor vetoed it), Illinois, New Jersey, and North Carolina. The same year, Maryland became the first state to enter the compact after its state legislature passed the NPVIC bill and Governor Martin O’Malley signed it into law. In 2008, New Jersey became the second signatory to the agreement when Governor John Corzine signed the measure into law on January 13 of that year.

Maryland and New Jersey were quickly joined by Illinois, Hawaii (after the legislature overrode a second veto), Washington, Massachusetts, Vermont, and the electorally rich state of California. The District of Columbia entered the compact last year when the Mayor signed the NPVIC bill sent to him by the 13-member City Council.

Justia reports, happily for friends of the Constitution, that "partisan efforts in Pennsylvania and Nebraska to change the way in which those two states will divvy up their blocks of electors in the so-called electoral college in the 2012 election" have failed.

Presently, the number of participants in the compact sits at eight states (and Washington, D.C.). That number could increase as NPVIC measures have been introduced in all of the remaining 42 states.

Good news for the Constitution, however, is the report from Friday, October 26 that many of these attempts to put the question of adoption of the NPVIC on the ballot in every state have also “fizzled.”

For more on this issue, read the third installment of this three-part series on the movement to abolish the electoral college. Part 3 will be published Wednesday, October 31.

Related articles:

Will a Close Election Put Electoral College on the Chopping Block? (Part 1 of 3)

Popular Election of President: A Constitutional Consideration (Part 3 of 3)

8 comments

  • Comment Link toto Saturday, 03 November 2012 12:33 posted by toto

    There have been 22,453 electoral votes cast since presidential elections became competitive (in 1796), and only 17 have been cast for someone other than the candidate nominated by the elector's own political party. 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome. Since 1796, the Electoral College has had the form, but not the substance, of the deliberative body envisioned by the Founders. The electors now are dedicated party activists of the winning party who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges.

    If a Democratic presidential candidate receives the most votes, the state's dedicated Democratic party activists who have been chosen as its slate of electors become the Electoral College voting bloc. If a Republican presidential candidate receives the most votes, the state's dedicated Republican party activists who have been chosen as its slate of electors become the Electoral College voting bloc. The winner of the presidential election is the candidate who collects 270 votes from Electoral College voters from among the winning party's dedicated activists.

    The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).

  • Comment Link Mikey-Pinkie Rings Wednesday, 31 October 2012 00:44 posted by Mikey-Pinkie Rings

    Even if enough states join together in this unconstitutional compact, have you ever considered that the electors will still have to cast their votes? They will do so as required, but may choose to change their vote if they as individuals believe that it is appropriate.

  • Comment Link toto Tuesday, 30 October 2012 14:33 posted by toto

    The current state-by-state winner-take-all system of awarding electoral votes maximizes the incentive and opportunity for fraud, coercion, intimidation, confusion, and voter suppression. A very few people can change the national outcome by adding, changing, or suppressing a small number of votes in one closely divided battleground state. With the current system all of a state's electoral votes are awarded to the candidate who receives a bare plurality of the votes in each state.

    The sheer magnitude of the national popular vote number, compared to individual state vote totals, is much more robust against manipulation.

    National Popular Vote would limit the benefits to be gained by fraud or voter suppression. One suppressed vote would be one less vote. One fraudulent vote would only win one vote in the return. In the current electoral system, one fraudulent vote could mean 55 electoral votes, or just enough electoral votes to win the presidency without having the most popular votes in the country.

    The closest popular-vote election in American history (in 1960), had a nationwide margin of more than 100,000 popular votes. The closest electoral-vote election in American history (in 2000) was determined by 537 votes, all in one state, when there was a lead of 537,179 (1,000 times more) popular votes nationwide.

    For a national popular vote election to be as easy to switch as 2000, it would have to be two hundred times closer than the 1960 election--and, in popular-vote terms, forty times closer than 2000 itself.

    Which system offers vote suppressors or fraudulent voters a better shot at success for a smaller effort?

  • Comment Link toto Tuesday, 30 October 2012 14:32 posted by toto

    In Gallup polls since 1944, only about 20% of the public has supported the current system of awarding all of a state's electoral votes to the presidential candidate who receives the most votes in each separate state (with about 70% opposed and about 10% undecided). Support for a national popular vote is strong among Republicans, Democrats, and Independent voters, as well as every demographic group in virtually every state surveyed in recent polls in recent closely divided Battleground states: CO – 68%, FL – 78%, IA 75%, MI – 73%, MO – 70%, NH – 69%, NV – 72%, NM– 76%, NC – 74%, OH – 70%, PA – 78%, VA – 74%, and WI – 71%; in Small states (3 to 5 electoral votes): AK – 70%, DC – 76%, DE – 75%, ID – 77%, ME – 77%, MT – 72%, NE 74%, NH – 69%, NV – 72%, NM – 76%, OK – 81%, RI – 74%, SD – 71%, UT – 70%, VT – 75%, WV – 81%, and WY – 69%; in Southern and Border states: AR – 80%, KY- 80%, MS – 77%, MO – 70%, NC – 74%, OK – 81%, SC – 71%, TN – 83%, VA – 74%, and WV – 81%; and in other states polled: AZ – 67%, CA – 70%, CT – 74%, MA – 73%, MN – 75%, NY – 79%, OR – 76%, and WA – 77%. Americans believe that the candidate who receives the most votes should win.

    More than 2,110 state legislators (in 50 states) have sponsored and/or cast recorded votes in favor of the National Popular Vote bill.

    The bill has passed 31 state legislative chambers in 21 states. The bill has been enacted by 9 jurisdictions possessing 132 electoral votes - 49% of the 270 necessary to go into effect.

    NationalPopularVote

  • Comment Link toto Tuesday, 30 October 2012 14:28 posted by toto

    Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings. However, because there would undoubtedly be time-consuming litigation about this aspect of the compact, National Popular Vote is working to introduce a bill in Congress for congressional consent.

    The U.S. Constitution provides:

    "No state shall, without the consent of Congress,… enter into any agreement or compact with another state…."

    Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can "not be read literally." In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:

    "Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

    "The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta."

    Specifically, the Court's 1893 ruling in Virginia v. Tennessee stated:

    "Looking at the clause in which the terms 'compact' or 'agreement' appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States."

    The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:

    "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…."

    In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:

    "The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States"

    The National Popular Vote compact would not "encroach upon or interfere with the just supremacy of the United States" because there is simply no federal power -- much less federal supremacy -- in the area of awarding of electoral votes in the first place.

    In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states' action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that:

    "the test is whether the Compact enhances state power quaod [with regard to] the National Government."

    The Court also noted that the compact did not

    "authorize the member states to exercise any powers they could not exercise in its absence."

  • Comment Link toto Tuesday, 30 October 2012 14:08 posted by toto

    The Founders in the Constitution did not require states to allow their citizens to vote for president, much less award all their electoral votes based upon the vote of their citizens.

    The presidential election system we have today is not in the Constitution, and enacting National Popular Vote would not need an amendment. State-by-state winner-take-all laws to award Electoral College votes, were eventually enacted by states, using their exclusive power to do so, AFTER the Founders wrote the Constitution. Now our current system can be changed by state laws again.

    Unable to agree on any particular method for selecting presidential electors, the Founders left the choice of method exclusively to the states in section 1 of Article II of the U.S. Constitution-- "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . ." The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as "plenary" and "exclusive."

    The constitution does not prohibit any of the methods that were debated and rejected. . Indeed, a majority of the states appointed their presidential electors using two of the rejected methods in the nation's first presidential election in 1789 (i.e., appointment by the legislature and by the governor and his cabinet). Presidential electors were appointed by state legislatures for almost a century.

    Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation's first presidential election.

    In 1789, in the nation's first election, the people had no vote for President in most states, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.

    The current 48 state-by-state winner-take-all method is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. It is not mentioned in the U.S. Constitution, the debates of the Constitutional Convention, or the Federalist Papers. The actions taken by the Founders make it clear that they never gave their imprimatur to the winner-take-all method.

    The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding the state's electoral votes.

    As a result of changes in state laws enacted since 1789, the people have the right to vote for presidential electors in 100% of the states, there are no property requirements for voting in any state, and the state-by-state winner-take-all method is used by 48 states.

    The normal process of effecting change in the method of electing the President is specified in the U.S. Constitution, namely action by the state legislatures. This is how the current system was created, and this is the built-in method that the Constitution provides for making changes.

    .

  • Comment Link toto Tuesday, 30 October 2012 14:05 posted by toto

    The National Popular Vote bill would change existing state winner-take-all laws that award all of a state’s electoral votes to the candidate who get the most popular votes in each separate state (not mentioned in the U.S. Constitution, but since enacted by 48 states), to a system guaranteeing the majority of Electoral College votes for, and the Presidency to, the candidate getting the most popular votes in the entire United States.

    The bill preserves the constitutionally mandated Electoral College and state control of elections. It ensures that every vote is equal, every voter will matter, in every state, in every presidential election, and the candidate with the most votes wins, as in virtually every other election in the country.

    Under National Popular Vote, every vote, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count. The candidate with the most popular votes in all 50 states and DC would get the 270+ electoral votes from the enacting states. That majority of electoral votes guarantees the candidate with the most popular votes in all 50 states and DC wins the presidency.

    National Popular Vote has nothing to do with pure democracy. Pure democracy is a form of government in which people vote on policy initiatives directly. With National Popular Vote, the United States would still be a republic, in which citizens continue to elect the President by a majority of Electoral College votes by states, to represent us and conduct the business of government in the periods between elections.

    The Electoral College is now the set of dedicated party activists, who vote as rubberstamps for presidential candidates. In the current presidential election system, 48 states award all of their electors to the winners of their state. This is not what the Founding Fathers intended.

    The current system does not provide some kind of check on the "mobs." There have been 22,453 electoral votes cast since presidential elections became competitive (in 1796), and only 17 have been cast for someone other than the candidate nominated by the elector's own political party. 1796 remains the only instance when the elector might have thought, at the time he voted, that his vote might affect the national outcome. Since 1796, the Electoral College has had the form, but not the substance, of the deliberative body envisioned by the Founders. The electors now are dedicated party activists of the winning party who meet briefly in mid-December to cast their totally predictable rubberstamped votes in accordance with their pre-announced pledges.

    If a Democratic presidential candidate receives the most votes, the state's dedicated Democratic party activists who have been chosen as its slate of electors become the Electoral College voting bloc. If a Republican presidential candidate receives the most votes, the state's dedicated Republican party activists who have been chosen as its slate of electors become the Electoral College voting bloc. The winner of the presidential election is the candidate who collects 270 votes from Electoral College voters from among the winning party's dedicated activists.

    The U.S. Supreme Court has upheld state laws guaranteeing faithful voting by presidential electors (because the states have plenary power over presidential electors).
    .

  • Comment Link charles Tuesday, 30 October 2012 13:25 posted by charles

    the founders envisioned the day when pure democracy would rule, and therefore put into place the electoral college, there could be wide spread voter fraud in a pure democractic vote count and the state by state election of electors would be far to difficult to steal an election

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