Posted on 06/24/2011 7:57:17 AM PDT by Walter Scott Hudson
Attracting some of the hardest of hardcore politicos to a cold and rainy pavilion in South Saint Paul, the Republican Liberty Caucus hosted a town hall style forum Wednesday evening. The subject was a state-by-state initiative to establish a National Popular Vote for the office of President of the United States.
This is a controversial issue among conservatives and libertarians which I have come down on the unpopular side of. I haven’t wholly endorsed NPV. I have urged Tea Partiers to take an objective look at what it could do for Minnesota. However, before we can seriously analyze the idea, we have to understand what it is – and what it is not. We must disabuse ourselves of the notion that it is an attack upon our Founding Fathers, our Constitution, the Republic, and Mother’s apple pie.
Articulating that position at Wednesday’s forum was state Representative Glenn Gruenhagen. I took away three themes from his remarks. The first was that NPV is an attempt to undermine the Electoral College and transform the American republic into a pure democracy. The second, made in answer to the case for NPV by former state Representative Laura Brod, was that NPV sounds great “in theory” but is not based upon any “objective fact.” Finally, Gruenhagen referenced a rogues gallery of leftists who have promoted NPV, inferring that their support is reason enough to oppose it.
Brod competently answered each of these concerns. All three distract from the real issue, which is whether or not NPV is the best use of Minnesota’s constitutional power to assign its Electors as it sees fit.
Wherever NPV is discussed, the most prominent opposing argument is that it represents some sort of attack against our republican form of government. This is simply untrue. As Brod explained, the NPV state compact does not alter the Electoral College in any way. It is an application of the College according to the law of the participating states. Legally and philosophically, it proceeds from precisely the same power the current winner-takes-all rule does.
Furthermore, the distinguishing characteristic of a republic is not the absence of democratic process. The popular vote determines who we send to Congress, who we send to City Hall, who we send to the State Capitol, etc. Yet no one objects to these contests as exercises in pure democracy.
Setting that aside, the Right’s interest in NPV has (perhaps counter-intuitively) nothing to do with the actual vote. Affecting the way presidents are elected is a means to an end. The end is affecting the manner in which presidential candidates campaign, and in which presidents govern. As it stands, unless you live in a battleground state (which Minnesota is not), you are virtually ignored in presidential contests. It doesn’t matter how many or how few people live in your state, or where they live within the state. If it’s not purple, it’s a flyover. Establishing NPV would change that dynamic. Suddenly, every vote would count.
This is where many conservatives and libertarians say, “Ah ha! Democracy!” But again, the point is missed. We don’t want every vote to count for the mere sake of every vote counting. We want every vote to count so that presidential candidates will be forced to weigh every state instead of a few battlegrounds. It’s not about democracy. It’s an answer to a de facto oligarchy, where a few special interests in a few special states have disproportionate influence over presidential candidates.
To this, Gruenhagen admits NPV sounds like a good theoretical solution. However, he claims the theory is not backed by any objective fact. With all due respect, many claims from opponents seem far more theoretical than NPV does. Take, for instance, the claim that NPV would result in unprecedented nationwide recounts which could tie up courts in several states for months on end. There is frankly nothing to suggest this possibility. There is no national election infrastructure, and NPV does not (and constitutionally could not) create one. Elections would still be administered precisely the way they are today, according to state law, supervised by the various secretaries of state. Recounts would occur only according to the laws in each state, and affecting the vote tally within states. There is simply no affect a close national popular vote could or would have upon a state’s process for recount. In Minnesota for example, an automatic recount would require a close vote within the state, not nationally. This would be the case whether NPV is enacted or not. It’s the case now.
The final argument deployed against NPV is the most instructive. The movement to enact NPV started amongst the Left in response to the presidential contest of 2000. It was in retaliation for the victory of George W. Bush against Al Gore. Many among the Left swore they would never let such an outcome occur again. They proceeded from the conviction that the winner of the popular vote should be elected to office because they won the popular vote. As noted above, this is not the reason conservatives have signed on to NPV. Frankly, given the rarity with which a president has been elected counter to the popular vote, it’s a silly issue to get hung up on. But we happily let the Left hang themselves on it because there is significant reason to believe it will open up the presidential contest to a broader, more conservative electorate. Regardless, the notion that we ought to judge an idea by the quality of its supporters is a bold-faced fallacy. It’s called an ad hominem attack, and we really ought to leave those to the Left.
Believe it or not, none of the above is an argument for NPV. I am making the argument to have the argument. As it stands, I see many of my libertarian friends and Tea Party cohort dismissing NPV out of hand for reasons which don’t hold muster. In fact, NPV may be a bad idea for Minnesota. The one point Gruenhagen made which I flagged for follow-up was a finding by the CATO Institute that Minnesota’s influence over the presidential contest would decrease by 3% under NPV. I’m curious to learn how they quantified that with such precision. Regardless, it speaks to the real issue we should be debating. Is NPV good for our state? Is it the best way to utilize our Electors? Those are questions of merit. So are concerns about the affect of voter fraud in certain notorious states. But we can’t consider those arguments before getting past the misguided constitutional concern.
I hate to simply restate what I already wrote in the post. But it's the only answer I can give you. There is no national election infrastructure, and the NPV compact would not change that. There is simply no effect a close national popular vote would have upon any state's recount process. Recounts, like the rest of the electoral process, are a function of state government. They are triggered according to state statute. For those states which have automatic recounts in close races, the race would have to be close within the state, not nationally.
And that process would be entirely unaffected by this compact. It's not a "new-fangled" alternative to the Electoral College. It is an application of it which may serve the rational self-interest of the participating states.
You lament the fact that a few battleground states get all the attention; and yet you prescribe a "solution" that would enhance the very issue you cite as a problem.
That would be true if your premise was correct. I'm not convinced that it is. Consider this link. "The populations of the nation's 25 largest cities together constitute only 12% of the nation's population." And the voters within them don't all vote the same way.
The 10th Amendment has been raped for so long, most people are currently clueless as to what Federalism is and how it was meant to work.
It's a mistake to assume that, because someone disagrees with you, they don't understand the issue. The NPV compact is an exercise in federalism, it is a use of the very power to allocate Electors that you cite.
Beyond that, I don’t believe this article for one minute. It is the liberals who are demanding an end to the electoral college, not conservatives.
You're right that conservatives don't want to end the Electoral College. Those who support the NPV compact do so in part because it DOES NOT end the Electoral College. This is a non-partisan effort supported by both liberals and conservatives, albeit for very different reasons. Surely you recognize that people often agree on policy for different reasons under different motivations. The liberals see an effort to affect democracy. Conservatives don't care about that. They see an effort to utilize the constitutional Electoral College system in a manner which benefits their state. That's an inherently republican (small-r) motivation.
It's a non-partisan effort. As a result, the site contains a hodgepodge of philosophical justifications. Not agreeing with one does not invalidate another.
Regardless, I'm fascinated by your indifference to citizens not being represented in their government. You're quite correct that one solution would be to move from one state to another. Of course, it makes far more sense to affect your state legislature to allocate your electoral votes in a manner which would increase your influence without requiring you to move.
It's interesting that you bring up ratification, because it undermines your expressed sentiment. Amendments are just as constitutional as the Constitution itself. And that process was thoughtfully included for the express purpose of changing course as the rational need developed and the political will manifested.
Of course, in this case, ratification is entirely beside the point. This is not an effort to amend the Constitution. It is not an effort to eliminate the Electoral College. It is an effort to utilize the College in a manner which serves the participating states.
I'm curious to know under what grounds you would expect the Court to overturn the compact. I think you'd find that the Court would affirm the states' constitutional power to dispose of their electoral votes as they see fit.
Please expound. By what definition of conservatism is support for the NPV state compact a disqualifier?
Off the top of my head, there have been four presidential elections where the victor did not receive the majority of the popular vote. That’s four out of forty-four. So one question you have to answer is: if the winner of a popular vote constitutes some kind of anti-republican mob rule, haven’t we been living under such mob rule for forty out of forty-four presidents? Is it “mob rule” when the popular vote elects your governor or your congressmen?
In brief, that the states may dispose of their electoral votes as they see fit. The NPV compact is a way of doing so.
Do you truly believe the Constitution is flawed/broken as regards this issue?
Not at all. That's why I would oppose an amendment to alter or abolish the Electoral College. The NPV compact is a use of the College.
For what it’s worth, I neither condone nor appreciate mvymvy’s cut and paste tactic.
No need to be pedantic about what an Amendment is.
“The NPV proposal calls for legislatures to pass bills committing their state’s electoral votes to the candidate who receives the most popular votes nationwide.”
Please — this is transparent — it merely provides a convenient cover-up of the attempted demasculation of the purpose of the Electoral College
In other words, an end-around...
“I’m curious to know under what grounds you would expect the Court to overturn the compact.”
Constitutionally, political compacts are permitted between states, but all require congressional approval. Under the Constitution’s Compact Clause any changes that create a shift in political power require congressional consent. Therefore, without congressional consent the NPV Compact may not be enforceable.
The U.S. Supreme Court declined to hear a case about the impact of one state’s method of appointing its presidential electors on another state (1966). However, the Court might decide to hear a case on the NPV Compact, and could decide against a group of state legislatures introducing a new system of electing a president without an amendment to the Constitution.
And please, no crap about cut-and-paste; it is what it is.
That's the identical comment I was responding to at #57 by the serial cut-and-paste poster mvymvy. He certainly does get around.
I think you’re missing something — margin of the popular vote. There’s no way around this: campaiging by radical leftists (you know, the ones who control the Democrat Party?) in primarily the 30 biggest cities (read: MSMAs) of the Megalopolis and the Left Coast could produce an undeniable lead in the popular vote. All socialists would have to do is keep it reasonably close in the red-state areas. Once the unwashed masses realize they can vote themselves the purse-strings (bread and circuses), the game is over.
I’m also a little suspicious of NPV partisans who were upset by Al-Gore’s loss even though he won the popular vote — because if you are not mortified by the specter of a Gore Presidency, you are probably a loon, or DUmmy.
Except for the minor point that the electors from the participating states would be determined by voters in other states. I'd hardly describe that as "entirely unaffected".
If a state decides to do that, they are perfectly free to do so. Nebraska and Maine select their electors that way now.
The congressional district method of awarding electoral votes (currently used in Maine and Nebraska) would not help make every vote matter. In NC, for example, there are only 4 of the 13 congressional districts that would be close enough to get any attention from presidential candidates. In California, the presidential race is competitive in only 3 of the state’s 53 districts. A smaller fraction of the country’s population lives in competitive congressional districts (about 12%) than in the current battleground states (about 30%) that now get overwhelming attention, while two-thirds of the states are ignored Also, a second-place candidate could still win the White House without winning the national popular vote.
The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law. The U.S. Constitution gives “exclusive” and “plenary” control to the states over the appointment of presidential electors.
Historically, virtually all of the previous major changes in the method of electing the President have come about by state legislative action. For example, the people had no vote for President in most states in the nation’s first election in 1789. However, nowadays, as a result of changes in the state laws governing the appointment of presidential electors, the people have the right to vote for presidential electors in 100% of the states.
In 1789, only 3 states used the winner-take-all method (awarding all of a state’s electoral vote to the candidate who gets the most votes in the state). However, as a result of changes in state laws, the winner-take-all method is now currently used by 48 of the 50 states.
In other words, neither of the two most important features of the current system of electing the President (namely, that the voters may vote and the 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, it was necessary to own a substantial amount of property in order to vote; however, as a result of changes in state laws, there are now no property requirements for voting in any state.
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. The abnormal process is to go outside the Constitution, and amend it.
The population of the top five cities (New York, Los Angeles, Chicago, Houston and Philadelphia) is only 6% of the population of the United States and the population of the top 50 cities (going as obscurely far down as Arlington, TX) is only 19% of the population of the United States.
Suburbs and exurbs often vote Republican.
The margins generated by the nation’s largest states are hardly overwhelming in relation to the 122,000,000 votes cast nationally. Among the 11 most populous states, the highest margins were the following seven non-battleground states:
* Texas — 1,691,267 Republican
* New York — 1,192,436 Democratic
* Georgia — 544,634 Republican
* North Carolina — 426,778 Republican
* Illinois — 513,342 Democratic
* California — 1,023,560 Democratic
* New Jersey — 211,826 Democratic
Oklahoma (7 electoral votes) alone generated a margin of 455,000 “wasted” votes for Bush in 2004 — larger than the margin generated by the 9th and 10th largest states, namely New Jersey and North Carolina (each with 15 electoral votes). Utah (5 electoral votes) alone generated a margin of 385,000 “wasted” votes for Bush in 2004. 8 small western states, with less than a third of California’s population, provided Bush with a bigger margin (1,283,076) than California provided Kerry (1,235,659).
Since World War II, a shift of a few thousand votes in one or two states would have elected the second-place candidate in 4 of the 13 presidential elections. Near misses are now frequently common. There have been 6 consecutive non-landslide presidential elections. A shift of 60,000 votes in Ohio in 2004 would have defeated President Bush despite his nationwide lead of over 3 Million votes.
Wrong. Not all interstate compacts require congressional approval.
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 method, 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.
Historically, virtually all of the major changes in the method of electing the President, including ending the requirement that only men who owned substantial property could vote and 48 current state-by-state winner-take-all laws, have come about by state legislative action.
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