There are many problems with the National Popular Vote initiative. I have a lot of questions that have gone unanswered.
Interstate compacts require the consent of Congress. What is Congress' present position on this?
What happens if a state chooses to drop out of the compact after it is in force? Does the compact terminate until a replacement state can be found that regains the 270 electoral vote threshold?
States don't have to wait for a compact that reaches 270 electoral votes in order to do this. A state could choose now to bind their votes to the national popular vote regardless of what other states do. Why have no states done this? Why do you need to wait for a compact of states to join?
Do you think that non-compact states would go to the Supreme Court to try to stop this? Consider this: if states amounting to 270 electoral college votes compact together, this has the real effect of negating the electoral college votes of all the other states, rendering them unrepresented in the choosing of the President. Do you expect those states to stay quiet?
-PJ
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.”
If a state chooses to drop out of the compact after it is in force and the remaining states do not have a total of the minimum 270 electoral votes needed, the compact would not be in effect until a state(s) regains the 270 electoral vote threshold.
Because the compact would become effective only when it encompasses states collectively possessing a majority of the electoral votes, the presidential candidate receiving the most popular votes in all 50 states and the District of Columbia would be guaranteed enough electoral votes in the Electoral College to be elected to the Presidency.
No single state would ever be likely to unilaterally enact a law awarding its electoral votes to the nationwide winner. For one thing, such an action would give the voters of all the other states a voice in the selection of the state’s own presidential electors, while not giving the enacting state the benefit of a voice in the selection of presidential electors in other states. Moreover, enactment of such a law in a single state would encourage the presidential candidates to ignore the enacting state. Such unilateral action would not guarantee achievement of the goal of nationwide popular election of the President.
No state’s electoral college votes would be negated. All states would be represented in choosing the President. Non-enacting states would award their electors as they choose.
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.