Fred Thompson Promotes ‘National Popular Vote’ Initiative In Harrisburg

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.

The possibility of recounts should not even be a consideration in debating the merits of a national popular vote. No one has ever suggested that the possibility of a recount constitutes a valid reason why state governors or U.S. Senators, for example, should not be elected by a popular vote.

The question of recounts comes to mind in connection with presidential elections only because the current system so frequently creates artificial crises and unnecessary disputes.

We do and would vote state by state. Each state manages its own election and is prepared to conduct a recount.

The state-by-state winner-take-all system is not a firewall, but instead causes unnecessary fires.

Given that there is a recount only once in about 160 statewide elections, and given there is a presidential election once every four years, one would expect a recount about once in 640 years with the National Popular Vote. The actual probability of a close national election would be even less than that because recounts are less likely with larger pools of votes.

The average change in the margin of victory as a result of a statewide recount was a mere 296 votes in a 10-year study of 2,884 elections.

No recount would have been warranted in any of the nation’s 56 previous presidential elections if the outcome had been based on the nationwide count.

In the current system, there are 51 separate opportunities for recounts in every presidential election. Recounts would be far less likely in a National Popular Vote system than in the current system. In the United States’ 56 total presidential elections, there have been 5 litigated state counts which were totally unnecessary and an artificial crisis created by the current state-by-state winner-take-all system. Based on U.S. election history, a national popular vote would reduce the probability of a recount to once in 640 years.

The EC now certainly does NOT give or promote equality among the states when it comes to electing the president. Have you read ANYTHING I’ve posted?

The National Popular Vote bill preserves the constitutionally mandated Electoral College and state control of elections. It changes the way electoral votes are awarded by states in the Electoral College, instead of the current 48 state-by-state winner-take-all system (not mentioned in the U.S. Constitution, but since enacted by 48 states). It assures 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.

The Founding Fathers 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.

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 presidential election system we have today is not in the Constitution.

With the current state-by-state winner-take-all system of awarding electoral votes, it could only take winning a bare plurality of popular votes in the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency — that is, a mere 26% of the nation’s votes.

National Popular Vote is not about winning districts or states. It’s about winning individual votes, wherever they are.

A nationwide presidential campaign, with every vote equal, would be run the way presidential candidates campaign to win the electoral votes of closely divided battleground states, such as Ohio and Florida, under the state-by-state winner-take-all methods. The big cities in those battleground states do not receive all the attention, much less control the outcome. Cleveland and Miami do not receive all the attention or control the outcome in Ohio and Florida.

The itineraries of presidential candidates in battleground states (and their allocation of other campaign resources in battleground states) reflect the political reality that every gubernatorial or senatorial candidate knows. When and where every vote is equal, a campaign must be run everywhere.

Wyoming is among the more than 3/4ths of states that don’t see presidential or vice presidential candidates under the current system.

Presidential candidates concentrate their attention on only the current handful of closely divided “battleground” states and their voters. There is no incentive for them to bother to care about the majority of states where they are hopelessly behind or safely ahead to win. 9 of the original 13 states are considered “fly-over” now, and are IGNORED.

In 1800, Thomas Jefferson argued that Virginia should switch from its then-existing district system of electing presidential electors to the statewide winner-take-all system because of the political disadvantage suffered by states that divided their electoral votes by districts in a political environment in which other states used the winner-take-all approach:
“while 10. states chuse either by their legislatures or by a general ticket [winner-take-all], it is folly & worse than folly for the other 6. not to do it.” [Spelling and punctuation as per original]

Indeed, the now-prevailing statewide winner-take-all system became entrenched in the political landscape in the 1830s precisely because dividing a state’s electoral votes diminishes the state’s political influence relative to states employing the statewide winner-take-all approach.

The U.S. Constitution says “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 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, now, 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.

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.

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

And as I've pointed out before, each state can do that now without participating in a compact. Why don't they do that now? Why wait for the compact before this is in effect?

I'm glad to hear that they are planning for a Congressional vote, because this compact is not like the others.

This compact also affects the states that are NOT a part of the compact, which other "commerce" compacts do not.

-PJ

“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 Founding Fathers wrote the Constitution. Now our current system can be changed by state laws again.”

Yes, any state can allocate the votes of its electors proportionately (as some now do), instead of winner-take-all. That does not/would not eliminate the electoral college, or eliminate the indpendent choice of the votes of the states’ voters in assigning/allocating their states electors.

The “national popular vote” disenfranchises the voters, replacing what may have been their choice(s), proportionately or “winner take all” with what may in fact be a totally different “choice” simply “prescribed by law”.

It is an attempt to create a legislated de-facto endrun around the Constitution.

It will not be upheld.

“Candidates would need to care about voters across the nation, not just undecided voters in the current handful of swing states.”

You are talking polling (what voters already think without/before the candidate says anything else) and statistics and “campaigning”, not reality, and certainly not the reality of whether or not voters care more about to whom a candidate is makimg a pitch (they don’t) or what they think of the pitch no matter to whom they are making it (they do).

As I noted in my initial response in this thread; during the last eight presidential elections, the eventual winner obtained a majority of votes in a majority of counties all across the country.

And that is how the winners actually obtain a majority of electoral votes. The amass more majorities of more places in the country, even when the “popular vote” is something less than a majority. This was true when Bill Clinton only got 43% of the vote and it was true in the election of 2000. The winner accumulated the assent from “more of the country”, not just the places with the “most votes”.

In a dissenting opinion, U.S. Supreme Court Justice White suggested, in U.S. Steel v. Multi-State Tax Commission, that courts could consider the possible adverse effects of a compact on non-compacting states in deciding whether congressional consent is required.

Because each state has independent power to award its electoral votes in the manner it sees fit, it is difficult to see what “adverse effect” might be claimed by one state from the decision of another state to award its electoral votes in a particular way. It is especially unclear what adverse “political” effect might be claimed, given that the National Popular Vote compact would treat votes cast in all 50 states and the District of Columbia equally. A vote cast in a compacting state is, in every way, equal to a vote cast in a non-compacting state. The National Popular Vote compact does not confer any advantage on states belonging to the compact as compared to non-compacting states. A vote cast in a compacting state would be, in every way, equal to a vote cast in a non-compacting state. The National Popular Vote compact certainly would not reduce the voice of voters in non-compacting states relative to the voice of voters in member states.

We are not a nation of 50 equal states in the Electoral College. Delaware has 3 electoral votes. California 55.

With the Electoral College, and federalism, the Founding Fathers meant to empower the states to pursue their own interest within the confines of the Constitution. The National Popular Vote is an exercise of that power, not an attack upon it.

With the current state winner-take-all system of awarding electoral votes, winning a bare plurality of the popular vote in the 11 most populous states, containing 56% of the population, could win the Presidency with a mere 26% of the nation’s votes.

But the 11 largest states rarely agree on any political question. In terms of recent presidential elections, the 11 largest states include five “red states (Texas, Florida, Ohio, North Carolina, and Georgia) and six “blue” states (California, New York, Illinois, Pennsylvania, Michigan, and New Jersey). The fact is that the big states are just about as closely divided as the rest of the country. For example, among the four largest states, the two largest Republican states (Texas and Florida) generated a total margin of 2.1 million votes for Bush, while the two largest Democratic states generated a total margin of 2.1 million votes for Kerry.

Among the 11 most populous states in 2004, the highest levels of popular support, hardly overwhelming, were found in the following seven non-battleground states:
* Texas (62% Republican),
* New York (59% Democratic),
* Georgia (58% Republican),
* North Carolina (56% Republican),
* Illinois (55% Democratic),
* California (55% Democratic), and
* New Jersey (53% Democratic).

In addition, 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

To put these numbers in perspective, 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).

I read it all, just don’t agree with many of your premises.

The EC today does not ignore states. At minimum every state has 3 EC votes. Given the close elections recently it can only take one state to swing an election.

Just use an EC map and plot the 2012 campaign. One can easily pick blue vs. red states and award them and come up with a tie or so close a state like Wyoming or New Mexico is enough to win. Once campaigns feel they have a state locked down they look for places they can get a shot at putting them over the top.

Your constant cut and paste of nonsensical items like, “It assures 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.” means nothing.

This paragraph basically says that once all the popular votes are counted for every state the winner is the one with the most. As I wrote previously that means just getting 50% plus 1 of the 125-140 million votes cast in a presidential election (2004 was close to 130 million), so who cares about individual states?

Would a candidate bother to campaign in Wyoming now? Of course not. Maybe a TV and/or radio commercials. But no visits. Waste of money when a 1% increase in turnout in Chicago pads your national total more.

And since you are arguing for a national popular vote to pick the president then why waste time preserving the EC? To what purpose?

You seem conflicted in your descriptions. If we keep the EC are we not still voting for electors and not the president? If not, then it is as I’ve described - a race to just get the majority.

And, of course, we both agreed to the greater prospect under this system of having a run off. I also predict massive court battles would pursue.

I’d rather contested EC elections go to the House as the constitution lays out.

National Popular Vote does not/would not eliminate the electoral college. It does not disenfranchise anyone.

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 College votes from the enacting states. That majority of Electoral College votes guarantees the candidate with the most popular votes in all 50 states and DC wins the presidency.

National Popular Vote would give a voice to the minority party voters in each state. Now their votes are counted only for the candidate they did not vote for. Now they don’t matter to their candidate.

With National Popular Vote, every vote, everywhere would be counted equally for, and directly assist, the candidate for whom it was cast.

The Founding Fathers in the Constitution did not even require states to allow their citizens to vote for president.

The Founding Fathers 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.”

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