Andrew Morgan at the Federalist writes:
The National Popular Vote bill would guarantee the presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia. It has been enacted by 15 state legislatures plus Washington, D.C., and passed in 41 legislative chambers in 24 states. For the proposal to become the law of the land, enough states totaling at least 270 electoral votes would be required to enact the law, and states would then commit their electoral votes to the candidate with the most popular votes nationally, regardless of which candidate won at the state level.
The states that have enacted the compact represent 195 electoral votes: Delaware, Hawaii, Rhode Island, Vermont, Colorado, Connecticut, Maryland, Massachusetts, New Jersey, New Mexico, Oregon, Washington, Illinois, California, New York, and the District of Columbia. States with passage in one chamber include Arkansas, Arizona, Maine, Michigan, Minnesota, North Carolina, Nevada, Oklahoma, and Virginia. Successful passage in all of these states represents 283 electoral votes, enough to change the law and make our presidential election decided via popular vote rather than the Electoral College.
7 comments:
While I don't disagree with what Mr. Morgan wrote there are a number of challenges to this scheme. Article I, Section 10, Clause 3 of the Constitution makes such agreements subject to Congressional approval. I think this clause has mostly been honored in the breach, or treated as a formality, because most interstate compacts have been focused on administration of common resources and borders. The breadth and nature of this one would seem to invite Congressional action, and it will be interesting to note how many people (and their party affiliation) suddenly become purists in the interpretation of Article II, Section 1, Clause 2 in the light of the 2020 Election shenanigans. I also, from a legal layman's standpoint, wonder how this would intersect with the 'one person, one vote' rulings that have been discussed from time to time at the Hall. This would turn the selection of Presidential Electors into a single 'at-large' vote which has generally been held to disadvantage geographically clustered minority groups. Lastly, also as a legal layman, I see some procedural difficulties exposed during the J6 unpleasantness. The NPV only really works if the votes of the Electors are virtually unchallengeable but the Electoral Count Act appears to provide provisions for challenging both individual electoral votes as being improperly influenced as well as formalizing the possibility that a state might submit more than one slate of Electoral Votes. I could easily see a state legislature dominated by the losing party in an election decided by NPV submitting a competing set of electors, and really snarling the certification of the Electoral Vote in a far more critical Constitutional crisis.
Article I, Section 10, Clause 3 of the Constitution makes...
Article I, Section 4 expressly invests power to define election laws in the legislatures, which was completely set aside in 2020. The Constitution only matters if it is somehow enforced on the government.
That is the crux of the matter. If you aren't going to abide by Article I, Section 10, Clause 3, and only selectively abide by Article II, Section 1, Clause 2, then why should I view anybody elected under the resulting execution of Article II, Section 1, Clause 3 as a legitimate authority?
I wonder if such a system would bring out the minority party in partisan states. Not much point in voting Republican in lots of California or Democrat anywhere in Wyoming under the current arrangement.
If you talk with a liberal who is advocating such a change, you might ask them who would win a Trump vs Harris vs 3rd-party race right this minute.
The Democrats in California seem to feel the need to go to great lengths to ensure they collect enough votes from Democrats. Seems to me that indicates plenty of Republicans vote in California despite Democrat electoral domination. I think it's also important to remember that Democrats can be, and used to be more, competitive in states like Wyoming and Iowa (and Republicans were more competitive statewide in California). In 1961 three of the top four officials elected statewide in Wyoming (governor, senators, representative) were Democrats. A Democrat was elected to a second term as governor in 2010. It's only been in Presidential races since the 1970s, and statewide races generally since about 1980 that Wyoming has leaned steadily GOP. The Democrats could be more competitive in states that benefit from the +2 EV but chose not to be.
I feel confident in predicting that the day after a Republican won the popular vote, especially by plurality, under NPV Democrat-dominated state legislatures of California and New York would immediately vote to repudiate it and submit a slate of electors to vote for the Democrat candidate. A similar move by Republicans would be less likely only because it would be more difficult for a single state to change the outcome.
SCOTUS has accepted a case which should settle the Article 1, S.4 question. IIRC, it's a North Carolina case, too.
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