Breaking the Constitution – National Popular Vote Interstate Compact

“Let’s see if we can find a loophole in the Constitution of the United States and amend the Constitution without a Constitutional Amendment.”

“Let’s skip any vote required by Congress, let’s skip the required vote of the states and let’s skip a Constitutional Convention --- oh, and let’s not even ask the people of New York.”

Governor Cuomo has signed, on behalf of the people of New York, the National Popular Vote Interstate Compact. This Compact would result in the State of New York voting each of its electoral votes for the winner of the national popular vote regardless of the actual vote of the citizens of New York.

The Compact would become effective when and if states controlling 270 electoral votes, a number sufficient to elect the President, pass identical contractually binding legislation. State delegates in each of these states would thereafter be required to ignore their constituents and vote their state’s electoral votes for the winner of the national popular vote.

Without a vote of the people of New York, the New York legislature and the Governor agreed to essentially change the Constitution of the United States, risk the possibility that the State of New York will vote its electoral votes for a person other than the candidate selected by the people of New York and ultimately cause yet another presidential election to be decided by the Supreme Court of the United States.

There could be no greater irony than Governor Cuomo signing a bill to disenfranchise the roughly 13,000,000 million registered voters of New York. Ignoring all intellectual positions, the Governor must know that if in 2004, 59,300 Ohioans had voted for John Kerry instead of George W. Bush, Senator Kerry would have become President despite having lost the national popular vote by over 3 million votes. New York voted overwhelmingly (58%) for Mr. Kerry. If the National Popular Vote Compact had been in place, every New York electoral vote would have gone to President Bush and made him the President of the United States instead of Mr. Kerry.

This notion that a number of states controlling 270 electoral votes (theoretically possible with the approval of only 11 states) should be able, by a contract among themselves, affect a "poor man's constitutional amendment" to the Constitution of the United States is fascinating. This should be abhorrent to anyone with the slightest interest in the vitality and history of the Constitution. Such a plan would reduce the combined voting impact of the voters of Vermont, Wyoming, North Dakota and South Dakota in the presidential race to that of Brooklyn.

The Founders' conceptual framework for electing a President insured that urban voters of a few states could not totally control the selection of the President. Electing a President through a national popular vote would obliterate this concept.

Oh yes, the Compact is likely unconstitutional. Article 2 of the Constitution of the United States does allow each state legislature almost unlimited power to direct their electors in casting their electoral votes for President. However, two other articles of the Constitution individually and collectively trump Article 2.

First, Article 1 of the Constitution specifically prohibits agreements between States without the consent of Congress. While this clause has been judicially narrowed over time, it is unlikely that it has been narrowed sufficiently to allow the National Popular Vote compact without Congressional consent.

Second, this "poor man's constitutional amendment" is specifically designed to circumvent the Constitution. Without reservation, its sole purpose is to avoid the constitutionally necessary and likely unattainable requirement of ratification of this notion by three quarters of the states under Article 5. Would the Supreme Court allow such a result? I think not.

Under either Articles 1 & 5, separately and certainly collectively, the Supreme Court should hold the Compact unconstitutional. But here is the rub. First there would have to be an election, then there would have to be a lawsuit, then the Supreme Court would have to decide if the winner of a presidential election would be the winner according to the Constitution or via a loophole developed by approved by a bunch of New York lawyers. Then, instead of an election determined by the popular vote or the electoral system, the president would be determined by a majority of the then nine Supreme Court judges. Disaster!

The Compact contemplates neither multiple or regional candidates. The proposal does not contemplate a popular third party candidate emerging in 2016 or thereafter. It is not inconceivable that a candidate could win but two or three states, but do well across the country and win the presidency.

That any state legislature could be taking actions to approve a "poor man's constitutional amendment" rather than moving forward with a proper constitutional amendment as envisioned by the Founders is unacceptable. That any state legislature would consider ignoring their constituents' votes through their own affirmative action should be reserved for the fiction section of our local libraries.

Proposals to abolish popular voting for President are parlor games devoid of any connection to political reality. In fact, the public overwhelmingly supports a nationwide vote for President in every state for which state-level polling data are available.

The proposal assumes that there would be a Governor and state legislature that is fanatically opposed to a nationwide vote for President and that public opinion in their state would permit them to disenfranchise their own state’s voters in order to protest a national popular vote. However, the political reality is that public opinion surveys show high levels of public support for a national popular vote for President in every state for which state-level polls are available, including battleground states, small states, Southern states, border states, and other states. 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: AK – 70%, AR – 80%, AZ – 67%, CA – 70%, CO – 68%, CT – 74%, DC – 76%, DE – 75%, FL – 78%, IA —75%, ID – 77%, KY- 80%, MA – 73%, ME – 77%, MI – 73%, MN – 75%, MO – 70%, MS – 77%, MT – 72%, NC – 74%, NE 74%, NH – 69%, NM– 76%, NV – 72%, NY – 79%, OH – 70%, OK – 81%, OR – 76%, PA – 78%, RI – 74%, SC – 71%, SD – 71%, TN – 83%, UT – 70%, VA – 74%, VT – 75%, WA – 77%, WI – 71%, WV – 81%, and WY – 69%.

“Is it really politically plausible to think a state legislature could try, in the twenty-first century, to eliminate the statewide vote for presidential electors? And if it is, why are we not worried about the equally troubling possibilities for similar subversion under the current regime? …
“[is it really politically plausible to think] a state legislature could claim the ‘plenary’ power that Professor Williams discusses to override a state popular vote?
“The reason these things do not happen is not that the current system lacks loopholes, but rather that the legitimacy of majority rule is so entrenched that any politician who blatantly tried to subvert the vote would be pilloried. And given the national polling data in support of a move towards direct national election, it is almost certain that the nonlegal ‘democracy norm’ would prevent the most blatant of the shenanigans . . .”
- Vikram David Amar - professor and the Associate Dean for Academic Affairs at the UC Davis School of Law. Before becoming a professor, he clerked for Judge William A. Norris of the United States Court of Appeals for the Ninth Circuit and for Justice Harry Blackmun at the Supreme Court of the United States.

In 2008, Obama only campaigned in 14 states after being nominated.
In 2012, the presidential campaigns only cared about 9 swing states.

The number and population of battleground states is shrinking.

States’ partisanship is hardening.

19 states (including California with 55 electoral votes) with a total of 242 electoral votes, have voted Democratic, 1992-2012
13 states with 102 electoral votes have voted Republican, 1992-2012

Some states have not been been competitive for more than a half-century and most states now have a degree of partisan imbalance that makes them highly unlikely to be in a swing state position. In a study before the 2012 election:
• 41 States Won by Same Party, 2000-2008
• 32 States Won by Same Party, 1992-2008
• 13 States Won Only by Republican Party, 1980-2008
• 19 States Won Only by Democratic Party, 1992-2008
• 9 Democratic States Not Swing State since 1988
• 15 GOP States Not Swing State since 1988

National Popular Vote ensures that every voter 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 voter, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count.

With National Popular Vote, every voter would be equal and matter to the candidates. Candidates would reallocate their time, the money they raise, and their ad buys to no longer ignore 80% of the states and voters.

With National Popular Vote, big cities would not get all of candidates’ attention, much less control the outcome.

16% of Americans live in rural areas. None of the 10 most rural states matter now.

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 far down as Arlington, TX) is only 15% of the population of the United States.

Suburbs and exurbs often vote Republican.

If big cities controlled the outcome of elections, the governors and U.S. Senators would be Democratic in virtually every state with a significant city.

A nationwide presidential campaign, with every voter 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. In the 4 states that accounted for over two-thirds of all general-election activity in the 2012 presidential election, rural areas, suburbs, exurbs, and cities all received attention—roughly in proportion to their population.

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 voter is equal, a campaign must be run everywhere.

With National Popular Vote, when every voter is equal, everywhere, it makes sense for presidential candidates to try and elevate their votes where they are and aren’t so well liked. But, under the state-by-state winner-take-all laws, it makes no sense for a Democrat to try and do that in Vermont or Wyoming, or for a Republican to try it in Wyoming or Vermont.

Even in California state-wide elections, candidates for governor or U.S. Senate don’t campaign just in Los Angeles and San Francisco, and those places don’t control the outcome (otherwise California wouldn’t have recently had Republican governors Reagan, Dukemejian, Wilson, and Schwarzenegger). A vote in rural Alpine county is just an important as a vote in Los Angeles. If Los Angeles cannot control statewide elections in California, it can hardly control a nationwide election.

In fact, Los Angeles, San Francisco, San Jose, and Oakland together cannot control a statewide election in California.

Similarly, Republicans dominate Texas politics without carrying big cities such as Dallas and Houston.

There are numerous other examples of Republicans who won races for governor and U.S. Senator in other states that have big cities (e.g., New York, Illinois, Michigan, Pennsylvania, and Massachusetts) without ever carrying the big cities of their respective states.

With a national popular vote, every voter everywhere will be equally important politically. When every voter is equal, candidates of both parties will seek out voters in small, medium, and large towns throughout the states in order to win. A vote cast in a big city or state will be equal to a vote cast in a small state, town, or rural area.

Candidates would have to appeal to a broad range of demographics, and perhaps even more so, because the election wouldn’t be capable of coming down to just one demographic, such as waitress mom voters in Ohio.

With National Popular Vote, every voter, everywhere, would be politically relevant and equal in presidential elections. Wining states would not be the goal. Candidates would need to care about voters across the nation, not just undecided voters in the current handful of swing states.

The main media at the moment, TV, costs much more per impression in big cities than in smaller towns and rural area. Candidates get more bang for the buck in smaller towns and rural areas.

The Founding Fathers left the choice of method of awarding electoral votes 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.”

Any state that enacts the proportional approach on its own would reduce its own influence. This was the most telling argument that caused Colorado voters to agree with Republican Governor Owens and to reject this proposal in November 2004 by a two-to-one margin.

If the proportional approach were implemented by a state, on its own, it would have to allocate its electoral votes in whole numbers. If a current battleground state were to change its winner-take-all statute to a proportional method for awarding electoral votes, presidential candidates would pay less attention to that state because only one electoral vote would probably be at stake in the state.

If states were to ever start adopting the whole-number proportional approach on a piecemeal basis, each additional state adopting the approach would increase the influence of the remaining states and thereby would decrease the incentive of the remaining states to adopt it. Thus, a state-by-state process of adopting the whole-number proportional approach would quickly bring itself to a halt, leaving the states that adopted it with only minimal influence in presidential elections.

The proportional method also could result in no candidate winning the needed majority of electoral votes. That would throw the process into Congress to decide.

If the whole-number proportional approach, the only proportional option available to an individual state on its own, had been in use throughout the country in the nation’s closest recent presidential election (2000), it would not have awarded the most electoral votes to the candidate receiving the most popular votes nationwide. Instead, the result would have been a tie of 269–269 in the electoral vote, even though Al Gore led by 537,179 popular votes across the nation. The presidential election would have been thrown into Congress to decide and resulted in the election of the second-place candidate in terms of the national popular vote.

A system in which electoral votes are divided proportionally by state would not accurately reflect the nationwide popular vote and would not make every voter equal.

It would penalize states, such as Montana, that have only one U.S. Representative even though it has almost three times more population than other small states with one congressman. It would penalize fast-growing states that do not receive any increase in their number of electoral votes until after the next federal census. It would penalize states with high voter turnout (e.g., Utah, Oregon).

Moreover, the fractional proportional allocation approach, which would require a constitutional amendment, does not assure election of the winner of the nationwide popular vote. In 2000, for example, it would have resulted in the election of the second-place candidate.

A national popular vote is the way to make every person’s vote equal and matter to their candidate because it guarantees that the candidate who gets the most votes in all 50 states and DC becomes President.

The National Popular Vote bill has passed 33 state legislative chambers in 22 rural, small, medium, large, Democratic, Republican and purple states with 250 electoral votes, including one house in Arkansas (6), Maine (4), Michigan (16), Nevada (6), New Mexico (5), North Carolina (15), and Oklahoma (7), and both houses in Colorado (9).

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

By state (Electoral College votes), by political affiliation, support for a national popular vote in recent polls has been:

Alaska (3) — 66% among (Republicans), 70% among Nonpartisan voters, 82% among Alaska Independent Party voters
Arkansas (6) — 71% (R), 79% (Independents).
California (55) – 61% (R), 74% (I)
Colorado (9) — 56% (R), 70% (I).
Connecticut (7) — 67% (R)
Delaware (3) — 69% (R), 76% (I)
DC (3) — 48% (R), 74% of (I)
Florida (29) — 68% (R)
Idaho(4) - 75% (R)
Iowa (6) — 63% (R)
Kentucky (8) — 71% (R), 70% (I)
Maine (4) - 70% (R)
Massachusetts (11) — 54% (R)
Michigan (16) — 68% (R), 73% (I)
Minnesota (10) — 69% (R)
Montana (3)- 67% (R)
Mississippi (6) — 75% (R)
Nebraska (5) — 70% (R)
Nevada (5) — 66% (R)
New Hampshire (4) — 57% (R), 69% (I)
New Mexico (5) — 64% (R), 68% (I)
New York (29) - 66% (R), 78% Independence, 50% Conservative
North Carolina (15) — 89% liberal (R), 62% moderate (R) , 70% conservative (R), 80% (I)
Ohio (18) — 65% (R)
Oklahoma (7) — 75% (R)
Oregon (7) — 70% (R), 72% (I)
Pennsylvania (20) — 68% (R), 76% (I)
Rhode Island (4) — 71% liberal (R), 63% moderate (R), 35% conservative (R), 78% (I),
South Carolina (8) — 64% (R)
South Dakota (3) — 67% (R)
Tennessee (11) — 73% (R)
Utah (6) — 66% (R)
Vermont (3) — 61% (R)
Virginia (13) — 76% liberal (R), 63% moderate (R), 54% conservative (R)
Washington (12) — 65% (R)
West Virginia (5) — 75% (R)
Wisconsin (10) — 63% (R), 67% (I)
Wyoming (3) –66% (R), 72% (I)
NationalPopularVote

The National Popular Vote bill would end the disproportionate attention and influence of the “mob” in the current handful of closely divided battleground states, such as Ohio and Florida, while the “mobs” of the vast majority of states are ignored.
9 states determined the 2012 election.
10 of the original 13 states are politically irrelevant in presidential campaigns now.
24 of the 27 lowest population states, that are non-competitive are ignored, in presidential elections.
4 out of 5 Americans were ignored in the 2012 presidential election. After being nominated, Obama visited just eight closely divided battleground states, and Romney visited only 10. These 10 states accounted for 98% of the $940 million spent on campaign advertising.

The current system does not provide some kind of check on the “mobs.” There have been 22,991 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. 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 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 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).

Unable to agree on any particular method, the Founding Fathers left the choice of method for selecting presidential electors exclusively to the states by adopting the language contained 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 National Popular Vote bill preserves the Electoral College and state control of elections. It changes the way electoral votes are awarded in the Electoral College. The candidate with the most votes would win, as in virtually every other election in the country.

Under National Popular Vote, every voter, everywhere, would be politically relevant and equal in every presidential election. Every vote would be included in the state counts and national count.

When states with a combined total of at least 270 Electoral College votes enact the bill, the candidate with the most popular votes in all 50 states and DC would get the needed majority of 270+ Electoral College votes from the enacting states. The bill would thus guarantee the Presidency to the candidate who receives the most popular votes and the majority of Electoral College votes.

The Republic is not in any danger from National Popular Vote.
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 1969, The U.S. House of Representatives voted for a national popular vote by a 338–70 margin. It was endorsed by Richard Nixon, Gerald Ford, and various members of Congress who later ran for Vice President and President such as then-Congressman George H.W. Bush, and then-Senator Bob Dole.

On February 12, 2014, the Oklahoma Senate passed the National Popular Vote bill by a 28–18 margin.

On March 25, in the New York Senate, Republicans supported the bill 27-2; Republicans endorsed by the Conservative Party by 26-2; The Conservative Party of New York endorsed the bill.
In the New York Assembly, Republicans supported the bill 21–18; Republicans endorsed by the Conservative party supported the bill 18–16.

The National Advisory Board of National Popular Vote includes former Congressmen John Buchanan (R–Alabama), and former Senators David Durenberger (R–Minnesota), and Jake Garn (R–Utah).

Supporters include former Senator Fred Thompson (R–TN), Congressman Tom Tancredo (R-CO), and former U.S. House Speaker Newt Gingrich (R–GA)

Saul Anuzis, former Chairman of the Michigan Republican Party for five years and a former candidate for chairman of the Republican National Committee,

The Nebraska GOP State Chairman, Mark Fahleson,

Michael Long, chairman of the Conservative Party of New York State

Rich Bolen, a Constitutional scholar, attorney at law, and Republican Party Chairman for Lexington County, South Carolina, wrote:”A Conservative Case for National Popular Vote: Why I support a state-based plan to reform the Electoral College.”

Some other supporters who wrote forewords to “Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote” http://www.every-vote-equal.com/ include:

Laura Brod served in the Minnesota House of Representatives from 2003 to 2010 and was the ranking Republican member of the Tax Committee. She was the Minnesota Public Sector Chair for ALEC (American Legislative Exchange Council) and active in the Council of State Governments.

James Brulte the California Republican Party chairman, who served as Republican Leader of the California State Assembly from 1992 to 1996, California State Senator from 1996 to 2004, and Senate Republican leader from 2000 to 2004.

Ray Haynes served as the National Chairman of the American Legislative Exchange Council (ALEC) in 2000. He served in the California State Senate from 1994 to 2002 and was elected to the Assembly in 1992 and 2002

Dean Murray was a member of the New York State Assembly. He was a Tea Party organizer before being elected to the Assembly as a Republican, Conservative Party member in February 2010. He was described by Fox News as the first Tea Party candidate elected to office in the United States.

Thomas L. Pearce served as a Michigan State Representative from 2005–2010 and was appointed Dean of the Republican Caucus. He has led several faith-based initiatives in Lansing.

In May 2011, Jason Cabel Roe, a lifelong conservative activist and professional political consultant wrote in “National Popular Vote is Good for Republicans:” “I strongly support National Popular Vote. It is good for Republicans, it is good for conservatives . . . , and it is good for America. National Popular Vote is not a grand conspiracy hatched by the Left to manipulate the election outcome.
It is a bipartisan effort of Republicans, Democrats, and Independents to allow every state – and every voter – to have a say in the selection of our President, and not just the 15 Battle Ground States [that then existed in 2011].

National Popular Vote is not a change that can be easily explained, nor the ramifications thought through in sound bites. It takes a keen political mind to understand just how much it can help . . . Republicans. . . . Opponents either have a knee-jerk reaction to the idea or don’t fully understand it. . . . We believe that the more exposure and discussion the reform has the more support that will build for it.”

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. Since then, state laws gave citizens the right to vote for President in all 50 states and DC.

The Electoral College is now the set of 538 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.

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