April 27, 2014

National Popular Vote Compact: Talk About a Really, Really, Bad Idea!

by Harold Gershowitz

Comments Below

 

Let us state, flat out, that we are great fans of the Electoral College.  It (the process of actually electing our President and Vice President) is, in our opinion, a hallmark of the genius of the framers of our Constitution.

We understand, of course, that, like any other provision of the Constitution, the provision establishing an Electoral College can be changed or abolished by amending the constitution. Indeed, our governing document has been amended 27 times in the past 235 years, including the twelfth amendment, which consolidated, within the College, the voting for President and Vice President into one ballot to avoid a reoccurrence of contests between President and Vice President.  There is, however, a movement spreading through the country to gut the Electoral College by stealth.  It is called the National Popular Vote Compact, and it should be condemned for what it is — an attempt to emasculate the intent of the framers without going through the bother of an arduous amendment process.  It is a terrible idea.

We’ll explain why just a bit further down in this essay, but first let’s review precisely what the Electoral College is…and what it isn’t.  The Electoral College is not a physical place like a school.  It is simply a group of elected individuals in each state organized by the constitution to achieve a singular common goal – to express (by casting their ballots) the will of their respective states.  The number of each state’s electors (in the Electoral College) is equal to the number of representatives and senators each state has in the US Congress.  Thus, every state is represented in the nation’s Electoral College process in a manner reasonably proportionate to its population. That is what makes every electoral vote so important, especially, in close elections. It is also a cornerstone of our federalist system. It makes it impossible for one or two very populous geographical regions to totally control a presidential election. Every state has someone at the table in the Electoral College system (okay, there really isn’t a table).

So why are some people so opposed to the Electoral College process? Primarily, because (at first blush) a system whereby whoever gets the most popular votes wins, seems very fair and very appealing.

So what’s wrong with that? Well, for one thing, it could pit heavily populated regions of the country against less populated regions assuring that the big population centers could, essentially, dictate who occupies the White House. That is, to some extent, as true today as it was at the founding when the United States of America consisted of only four million men and women in 13 states spread along 1,000 miles of the east coast with the bulk of the population residing in four states — Massachusetts, New York, Pennsylvania and Virginia.

Even today, with a population of 320 million, 52% of Americans live in coastal counties and 40% live directly on the shoreline of the United States. That means about half the country lives in the immense 3,000-mile divide between the coasts.  Of the nation’s 3,066 counties, only 22% (672) are coastal with the remaining 78% located inland.  Our federalist system was created to assure that every state was, politically, important

But wait. There’s more!  The Electoral College makes it very difficult for fringe party candidates to win a national election by cobbling together pockets of votes in many states that could add up to a majority without carrying any single state.  The way our Electoral College works, if a candidate doesn’t carry a state, he or she isn’t entitled to any of that state’s electoral votes.  We like that a lot!

While the founders changed history by meticulously constructing the world’s first truly constitutional democracy, they never lost sight or fear of the potential tyranny of the majority.  They constructed a number of safeguards to give every state, large or small, a place at the proverbial table. Every state, large or small, having two Senators is one such example.  The Electoral College is another.

Twice in fairly recent history, fringe candidates were able to accumulate an impressive number of votes (here and there) without carrying a single state.  Consequently, they got no electoral votes. For example, Ross Perot, in 1992, ran as a third party candidate and cobbled together nearly 20 million votes, but he failed to carry a single state and, therefore, was awarded no electoral votes.  John Anderson of Illinois ran for President as an Independent in 1980 and won nearly 7 million votes.  He, too, failed to carry a single state and was relegated to obscurity, winning no votes in the Electoral College.

The Electoral College has stood the test of time, and has served the nation well. Let us, however, acknowledge that the Electoral College represents an imperfect process that has, on three occasions following very close elections, resulted in the inauguration of Presidents who had not won a national majority of the votes cast.  They would be George Bush (43), Benjamin Harrison and Rutherford Hayes.  John Quincy Adams also won the presidency when the election was thrown into the House of Representatives after neither he nor Andrew Jackson received the necessary number of electoral votes to ascend to the Presidency.  The House gave the nod to Adams.

Nonetheless, the correlation between the popular vote and the Electoral College vote remains extremely strong. Three interesting research papers co-authored by Andrew Gelman, Professor of Statistics at Columbia University, along with other prominent statisticians, demonstrate that whoever wins 51% of the popular vote has a 95% statistical probability of winning the Electoral College.

Both large states and small states can, depending on the circumstances, be the beneficiaries of the Electoral College system.  That’s because every state contributes a minimum of three electors to the Electoral College (one for each of the two Senators and one for each Representative it sends to Congress, which, of course, favors small states. In a close election, there are many small states whose three electoral votes could carry the day for a candidate.

On the other hand, the prevailing winner-take-all (electoral votes) system, of course, favors the large states.  For example, no matter how small the margin of victory in California, the state awards all 55 of its electoral votes to the winner. That represents more electoral votes than the 15 smallest states combined. The Electoral College can provide (in very close elections) an ever-so-slight tilt making the outcome in an individual state critically important, and the federalist oriented founders would, unquestionably, have been very comfortable with that. We are too.

In our unique presidential voting system the majority of votes in the Electoral College rather than the majority of the popular vote determines who will be President, and rarely has there been a disparity between the two.  The American Electoral College system does, however, help assure that large voting blocks do not necessarily dictate the outcome of our Presidential elections and that is what the founders intended and, in our opinion, that is a good thing.

If ever the national will is to amend the constitution and do away with the Electoral College so be it.  But there are those who want to do away with the Electoral College and who have devised an alternate scheme for savaging the founders’ intent by circumventing the amendment process.  Here’s how. The US Constitution allows each state to decide how to apportion its electoral votes. In 48 of the 50 states all of the electoral votes in each state are awarded to the winner of the popular vote in each particular state (winner takes all). Two states, Nebraska (5 electoral votes) and Maine (4 electoral votes) allocate their votes taking into consideration how the vote went in each state’s respective congressional districts.

The so-called National Popular Vote Compact movement would establish a Compact wherein every state that adopts the Compact  agrees to allocate all of their electoral votes to whoever wins the national popular vote, even if that candidate did not carry the particular member state.  In other words, if a candidate who won the national popular vote got clobbered in any states that had joined the Compact, those states would still be compelled to award all of their electoral votes to that candidate.

Ironically, those who are pushing this corruption of the Constitution will succeed if they can secure the passage of the Compact in any combination of states that, collectively, have 270 electoral votes (the number of electoral votes needed to win a national Presidential election).  Those who are promoting the so-called Compact are using the language in the constitution that delegates to the states the determination of how to apportion their electoral votes to make the case that the electors can be required to cast their votes in support of a candidate that didn’t even carry their state. This political slight of hand totally negates and undermines the process of election designated by the Constitution. The Constitution most certainly intended that electoral votes cast in each state reflect the vote outcome in each state.

How far fetched is it that such a bastardization of the framers’ intent could ever become reality?  Not as far fetched as you might think.  As of this week, eleven of the most liberal states in the nation have legislated in favor of the Compact. Together they account for 165 of the needed 270 votes necessary to do away with the framers’ intent.  Legislation supporting the Compact is pending in six other states.

To the framers, in their eternal slumber, it must seem a growing nightmare.

Available at Amazon.com and on Kindle, Barnes & Noble’s Nook and

Apple Ebooks

All comments regarding these essays, whether they express agreement, disagreement, or an alternate view, are appreciated and welcome. Comments that do not pertain to the subject of the essay or which are ad hominem references to other commenters are not acceptable and will be deleted.

Invite friends, family, and colleagues to receive “Of Thee I Sing 1776” online commentaries. Simply copy, paste, and email them this link—https://lp.constantcontactpages.com/su/ILPzgKS  –and they can begin receiving, free of charge, these weekly essays every Sunday morning.

31 responses to “National Popular Vote Compact: Talk About a Really, Really, Bad Idea!”

  1. kohler says:

    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.

    The Constitution does not encourage, discourage, require, or prohibit the use of any particular method for how to award a state’s electoral votes.

    National Popular Vote preserves the Electoral College.
    It does not negate and undermine the process of election designated by the Constitution
    By state laws, without changing anything in the Constitution, The National Popular Vote bill would guarantee the presidency to the candidate who receives the most popular votes in the country, by replacing state winner-take-all laws that did not become prevalent until decades after the deaths of the Founders.
    The bill 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 Constitution).

    The Electoral College is the 538 dedicated party activists elected by us by states from among party slates.
    It is not the process of actually electing our President and Vice President.

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

    National Popular Vote is based on Article II, Section 1 of the U.S. Constitution, which gives each state legislature the right to decide how to appoint its own electors. Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1:
    “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.

    The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law.

    Historically, 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.

    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 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.

    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.

    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.

  2. kohler says:

    Anyone who supports the current presidential election system, believing it is what the Founders intended and that it is in the Constitution, is mistaken. The current presidential election system does not function, at all, the way that the Founders thought that it would.

    Supporters of National Popular Vote find it hard to believe the Founding Fathers would endorse the current electoral system where 80% of the states and voters now are completely politically irrelevant.

    The current system does not assure that every state is politically important in presidential campaigns.

    The current state-by-state winner-take-all method of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), under which all of a state’s electoral votes are awarded to the candidate who gets the most votes in each separate state, ensures that the candidates, after the conventions, in 2012 did not reach out to about 80% of the states and their voters. Candidates had no reason to poll, visit, advertise, organize, campaign, or care about the voter concerns in the dozens of states where they were safely ahead or hopelessly behind.

    During the course of campaigns, candidates are educated and campaign about the local, regional, and state issues most important to the handful of battleground states they need to win. They take this knowledge and prioritization with them once they are elected. Candidates need to be educated and care about all of our states.

    10 of the original 13 states are ignored now.

    Four out of five Americans were ignored in the 2012 presidential election.
    After being nominated, Obama visited just eight closely divided battleground states, and Romney visited only 10.
    More than 99% of campaign attention was showered on voters in just the ten states in 2012 where they were not hopelessly behind or safely ahead, and could win the bare plurality of the vote to win all of the state’s electoral votes.
    Now the majority of Americans, in small, medium-small, average, and large states are ignored.
    Only 3 of the 27 smallest states receive any attention.
    None of the 10 most rural states is a battleground state.
    24 of the 27 lowest population states, and 16 medium and big states like CA, GA, NY, and TX are ignored.
    That’s over 85 million voters, more than 200 million Americans, who are politically irrelevant.
    Once the conventions are over, presidential candidates now don’t visit or spend resources in 80% of the states.
    Candidates know the Republican is going to win in safe red states, and the Democrat will win in safe blue states, so they are written off and taken for granted.

    States have the responsibility and power to make their voters relevant in every presidential election.

    Federalism concerns the allocation of power between state governments and the national government. The National Popular Vote bill concerns how votes are tallied, not how much power state governments possess relative to the national government. The powers of state governments are neither increased nor decreased based on whether presidential electors are selected along the state boundary lines, or national lines (as with the National Popular Vote).

  3. kohler says:

    Policies important to the citizens of non-battleground states are not as highly prioritized as policies important to the handful of ‘battleground’ states when it comes to governing.

    Charlie Cook reported in 2004:
    “Senior Bush campaign strategist Matthew Dowd pointed out yesterday that the Bush campaign hadn’t taken a national poll in almost two years; instead, it has been polling [in the then] 18 battleground states.” [only 10 in 2012]

    Bush White House Press Secretary Ari Fleischer acknowledging the reality that [then] more than 2/3rds of Americans were ignored in the 2008 presidential campaign, said in the Washington Post on June 21, 2009:
    “If people don’t like it, they can move from a safe state to a swing state.”

    The state-by-state winner-take-all rule adversely affects governance. Sitting Presidents (whether contemplating their own re-election or the election of their preferred successor) pay inordinate attention to the interests of “battleground” states.
    ** “Battleground” states receive over 7% more grants than other states.
    ** “Battleground” states receive 5% more grant dollars.
    ** A “battleground” state can expect to receive twice as many presidential disaster declarations as an uncompetitive state.
    ** The locations of Superfund enforcement actions also reflect a state’s battleground status.
    ** Federal exemptions from the No Child Left Behind law have been characterized as “‘no swing state left behind.”

    The effect of the current state-by-state winner-take-all system on governance is discussed at length in Presidential Pork by Dr. John Hudak of the Brookings Institution.

    Compare the response to hurricane Katrina (in Louisiana, a “safe” state) to the federal response to hurricanes in Florida (a “swing” state) under Presidents of both parties. President Obama took more interest in the BP oil spill, once it reached Florida’s shores, after it had first reached Louisiana. Some pandering policy examples include ethanol subsidies, Steel Tariffs, and Medicare Part D. Policies not given priority, include those most important to non-battleground states – like water issues in the west, and Pacific Rim trade issues.

  4. kohler says:

    The current state-by-state winner-take-all system discriminates against third-party candidates with broad-based support, while rewarding regional third-party candidates. In 1948, Strom Thurmond and Henry Wallace both got about 1.1 million popular votes, but Thurmond got 39 electoral votes (because his vote was concentrated in southern states), whereas Henry Wallace got none. Similarly, George Wallace got 46 electoral votes with 13% of the votes in 1968, while Ross Perot got 0 electoral votes with 19% of the national popular vote in 1992. The only thing the current system does is to punish candidates whose support is broadly based.

  5. kohler says:

    A shift of a few thousand voters in one or two states would have elected the second-place candidate in 4 of the 15 presidential elections since World War II. Near misses are now frequently common. There have been 7 consecutive non-landslide presidential elections (1988, 1992, 1996, 2000, 2004, 2008, and 2012). 537 popular votes won Florida and the White House for Bush in 2000 despite Gore’s lead of 537,179 (1,000 times more) popular votes nationwide. A shift of 60,000 voters in Ohio in 2004 would have defeated President Bush despite his nationwide lead of over 3 million votes. In 2012, a shift of 214,733 popular votes in four states would have elected Mitt Romney, despite President Obama’s nationwide lead of 4,966,945 votes.

    • When all is said and done, the National Popular Vote Compact would require all of a state’s electors to cast their ballots for a Presidential candidate who may not have carried the state for which they are casting ballots and, therefore, our objection remains. The National Popular Vote Compact negates the very purpose of having electors as prescribed by the Constitution. The way to negate any provision of the Constitution is to amend it.

  6. kohler says:

    With the current state-by-state winner-take-all system of awarding electoral votes (not mentioned in the U.S. Constitution, but later enacted by 48 states), it could only take winning a bare plurality of popular votes in only the 11 most populous states, containing 56% of the population of the United States, for a candidate to win the Presidency with a mere 23% of the nation’s votes!

  7. kohler says:

    A system whereby whoever gets the most popular votes wins is very fair and very appealing.

    The National Popular Vote bill ensures that every voter is equal, and politically relevant to the candidates, everywhere, in every presidential election, and the candidate who receives the most popular votes will become president. The bill would guarantee the Presidency to the candidate who receives the most popular votes and the majority of Electoral College votes.

    National Popular Vote did not invent popular elections. Having election results determined by the candidate getting the most individual votes is not some scary, untested idea loaded with unintended consequences.

    It makes every vote and voter matter to the candidates. It adds up votes of all voters in each state and the candidate with the most popular votes from the states wins, as in virtually every other election in the country.

    Most Americans don’t ultimately care whether their presidential candidate wins or loses in their state. . . they care whether he/she wins the White House. Voters want to know, that even if they were on the losing side, their vote actually was directly and equally counted and mattered to their candidate. Most Americans think it would be wrong for the candidate with the most popular votes to lose. We don’t allow this in any other election in our representative republic.

    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 or past 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%.

    Since it’s origination in 2006, the bill has been introduced in legislatures in all 50 states, and in the public domain for discussion. The website has been up for 8 years. The 1st Edition of “Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote” was published in February 2006, and the 4th Edition was published in February 2013. The book has been sent to state legislators in every state. 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 33 state legislative chambers in 22 rural, small, medium, and large states with 250 electoral votes.

    NationalPopularVote

  8. kohler says:

    In state polls of voters each with a second question that specifically emphasized that their state’s electoral votes would be awarded to the winner of the national popular vote in all 50 states, not necessarily their state’s winner, there was only a 4-8% decrease of support.

    Question 1: “How do you think we should elect the President: Should it be the candidate who gets the most votes in all 50 states, or the current Electoral College system?”

    Question 2: “Do you think it more important that a state’s electoral votes be cast for the presidential candidate who receives the most popular votes in that state, or is it more important to guarantee that the candidate who receives the most popular votes in all 50 states becomes president?”

    Support for a National Popular Vote
    South Dakota — 75% for Question 1, 67% for Question 2.
    Connecticut — 74% for Question 1, 68% for Question 2,
    Utah — 70% for Question 1, 66% for Question 2,

    “The bottom line is that the electors from those states who cast their ballot for the nationwide vote winner are completely accountable (to the extent that independent agents are ever accountable to anyone) to the people of those states. The NPV states aren’t delegating their Electoral College votes to voters outside the state; they have made a policy choice about the substantive intelligible criteria (i.e., national popularity) that they want to use to make their selection of electors. There is nothing in Article II (or elsewhere in the Constitution) that prevents them from making the decision that, in the Twenty-First Century, national voter popularity is a (or perhaps the) crucial factor in worthiness for the office of the President.” – Vikram David Amar – professor and the Associate Dean for Academic Affairs at the UC Davis School of Law (King Hall). 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.

    • Guaranteeing a Federally Elected President

      Kristin Feeley
      Northwestern University – School of Law

      Northwestern University Law Review, Vol. 103, 2009

      Abstract:
      This Note addresses the constitutionality of National Popular Vote (NPV) legislation. National Popular Vote is a movement to reform the electoral college via state statute to turn the Presidential election into a national one. Four states (Maryland, New Jersey, Illinois, and Hawaii) have already passed laws providing that, in the event that states representing 270 electoral votes pass similar legislation, their electors will be awarded to the winner of the national vote. This Note argues that NPV legislation violates the guarantee clause, which incorporates aspects of process federalism, including a federally elected President.

      Part I discusses the national popular vote movement and applicable jurisprudence, arguing that although the Supreme Court recognizes that state legislatures have “plenary” power to appoint presidential electors, they cannot radically alter the Electoral College by enacting just any method for selecting presidential electors. In addition, Part I provides background on two potential constitutional problems for NPV legislation: the Compact Clause and the Guarantee Clause.

      Part II examines the principles of republican government that the Guarantee Clause protects. An analysis of historical sources from the framing and ratification of the Constitution, state practices concerning appointment of presidential electors, and other scholarly interpretations of the meaning of republican government reveals that the Guarantee Clause protects a compound republican government at the national level. It concludes that the guarantee of a republican form of government encompasses aspects of process federalism.

      Part III applies these republican principles to argue that NPV legislation is unconstitutional for two reasons. First, a national election of the President violates the concept that, in our compound republic, the source of the President’s power is federal, not national. Second, the means employed by NPV violates the Guarantee Clause, and if electoral reform is desired, it should come through constitutional amendment. Allowing a minority of states to switch the nation to a national popular vote would also violate the republican principle that no state shall legislate for another state. In addition, allowing states unbridled discretion to adopt schemes like that in NPV legislation fails to account for the problem of “superstates.” Superstates could be created if one state combines its electors with another’s. Those two states could then send their electors to the winner of the superstate’s vote. Taken to the extreme, the eleven states with a total 270 electoral votes could form a superstate where all 270 electoral votes go to the winner of the superstate, making the remaining thirty-nine states irrelevant in presidential elections. This suggests that there should be some constitutional limit on the ability of some states to make legislative choices for other states concerning the election of the President.

      Finally, Part IV discusses which branch is best suited to guarantee a federally elected President and has the power to determine that NVP legislation violates the Guarantee Clause. This Comment argues that the Supreme Court is in the best position to decide whether or not national popular vote legislation violates the Guarantee Clause. This Comment does not argue that a national popular vote is an inferior method of electing the President, it merely posits that the movement to a national popular vote should be accomplished via constitutional amendment, not by statutes in a minority of states.

      “The compact certainly violates the spirit of the Constitution. Plainly, the founders of the Constitution did not intend for there to be a conspiracy among certain states to essentially abolish the Electoral College.” Constitutional Lawyer, Alan Dershowitz

  9. Mark J Levick says:

    The National Popular Vote Compact is akin to Obama’s, “I’ve got a pen and a telephone” in that it permits its proponents to evade established procedures of Government such as the proceedure for amending the Constitution and the legislative process. Putting proceedure aside, if most people voted I would be more enthusiastic about electing our President by popular vote. In fact most people don’t vote and elections are won by the candidate whose special interest groups go to the pools in the greatest number. The National Popular Vote Compact will put a premium on pandering to those voting blocks which I consider to be a bad thing. By way of example the Mayor of New York received 74 percent of the popular vote. Unfortunately for the majority of New Yorkers only 17 percent of those registered to vote cast ballots. Those who did vote were spurred to do so by New York’s public employees unions who have a lot of skin in the game. Thus the financial capital of the World whose workers pay over 90 percent of NYC and NYS income taxes are governed by a Marxist elected when 83 percent of the registered voters stayed home. It should be noted that after four months in office the Mayor’s approval rating is in the mid 40’s. Until all registered voters are required to vote Popular elections should not be deemed to correlate with the expression of the will of the majority.

  10. kohler says:

    National Popular Vote does not evade established procedures of Government or the legislative process.

    National Popular Vote is based on Article II, Section 1 of the U.S. Constitution, which gives each state legislature the right to decide how to appoint its own electors. Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1:
    “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.

    The normal way of changing the method of electing the President is not a federal constitutional amendment, but changes in state law.

    Historically, 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.

    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 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.

    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.

    The bill has been introduced in legislatures in 50 states. It has passed 33 state legislative chambers in 22 rural, small, medium, and large states with 250 electoral votes.

    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.

  11. kohler says:

    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.

    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. In 2012, 56,256,178 (44%) of the 128,954,498 voters had their vote diverted by the winner-take-all rule to a candidate they opposed (namely, their state’s first-place candidate).

    And now votes, beyond the one needed to get the most votes in the state, for winning in a state are wasted and don’t matter to candidates. 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).

    In 2008, voter turnout in the then 15 battleground states averaged seven points higher than in the 35 non-battleground states.

    In 2012, voter turnout was 11% higher in the 9 battleground states than in the remainder of the country.

    If presidential campaigns now did not ignore more than 200,000,000 of 300,000,000 Americans, one would reasonably expect that voter turnout would rise in 80% of the country that is currently ignored by presidential campaigns.

    Most American voters want to know, that even if they were on the losing side, their vote actually was directly and equally counted and mattered to their candidate. Most Americans think it would be wrong for the candidate with the most popular votes to lose. We don’t allow this in any other election in our representative republic.

  12. kohler says:

    The National Popular Vote bill preserves the Electoral College and state control of elections.

    The Electoral College is the 538 dedicated party activists elected by us by states from among party slates.

    The bill changes the way electoral votes are awarded in the Electoral College. It replaces state-by-state winner-take-all laws (not mentioned in the U.S. Constitution, but later enacted by 48 states), under which all of a state’s electoral votes are awarded to the candidate who gets the most votes in each separate state.

    National Popular Vote will ensure that every voter is equal, and politically relevant to the candidates, everywhere, in every presidential election, and the candidate who received the most popular votes and the majority of Electoral College votes will become president.

    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.

    Based on the current mix of states that have enacted the National Popular Vote compact, it could take about 25 states to reach the 270 electoral votes needed to activate the compact.

    No state is legislating for another state. The non-enacting states will award their electoral votes as they want. States are not making legislative choices for other states concerning the election of the President. The enacting states are choosing to award their electors using their constitutional authority. States can, and have, changed their method of awarding electoral votes over the years.

    Of course states can radically alter the Electoral College by changing their method for selecting presidential electors.

    A majority of the states appointed their presidential electors in the nation’s first presidential election in 1789 by appointment by the legislature or by the governor and his cabinet. Presidential electors were appointed by state legislatures for almost a century.

    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.

    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 of the 50 states.

    The argument that the National Popular Vote compact violates the Guarantee Clause is based on an interpretation of the clause that is not supported by the clause’s language or any judicial precedent.
    Moreover, even if the Guarantee Clause were applied to the national government, direct popular election of the chief executive is not incompatible with “a republican form of government” or the concept of a “compound republic.”

  13. Sandi says:

    Two potential constitutional problems for NPV legislation: the Compact Clause and the Guarantee Clause.

    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

    The details of the National Popular Vote proposal can be found here:
    Chapter 6 titled, “The Agreement Among the States to Elect the President by National Popular Vote” is the devil in the details.
    What is disturbing is in section III-7 which says, “III-7 . If, for any reason, the number of presidential electors nominated in a member state in association with the national popular vote winner is less than or greater than that state’s number of electoral votes, the presidential candidate on the presidential slate that has been designated as the national popular vote winner shall have the power to nominate the presidential electors for that state and that state’s presidential elector certifying official shall certify the appointment of such nominees.”
    Here this section grants the authority of the presidential popular vote winner to nominate the presidential electors for that state. The Constitution specifically says in Article II, Section 1 that only the State legislature is empowered to appoint the State electors, not some presidential candidate.

    The American people are being mislead into believing this new proposal is more democratic but it is in fact less democratic and certainly not indicative of a republican form of government. This new voting arrangement switches the electors’ vote to the candidate who won the nationwide popular vote. That is clearly a usurpation of the will of the people of each of our great and sovereign States by denying them their voter right of representative choice, and thus that of the state..

  14. Jefferson says:

    With all these silly wessiteb, such a great page keeps my internet hope alive.

  15. That’s a mold-breaker. Great thinking!

  16. I’m grateful you made the post. It’s cleared the air for me.

  17. You mean I don’t have to pay for expert advice like this anymore?!

  18. That’s not just the best answer. It’s the bestest answer!

  19. Ya learn something new everyday. It’s true I guess!

  20. Full of salient points. Don’t stop believing or writing!

  21. That’s a smart answer to a tricky question

  22. I don’t even know what to say, this made things so much easier!

  23. That’s a wise answer to a tricky question

  24. lavetra says:

    Stay with this guys, you’re helping a lot of people.

  25. sildenafil says:

    Help, I’ve been informed and I can’t become ignorant.

  26. IJWTS wow! Why can’t I think of things like that?

  27. I’m really into it, thanks for this great stuff!

  28. Your answer was just what I needed. It’s made my day!

  29. That kind of thinking shows you’re an expert

Leave a Reply

Your email address will not be published. Required fields are marked *