by Donald Mellon
A movement is underway to change the method of electing presidents. The objective of this movement is to convince states whose cumulative electoral vote count equals or exceeds 270 (the number needed to elect a president) to join an interstate compact. This compact requires that all member states cast all of their electoral delegate votes to the presidential slate obtaining the greatest national popular vote count during that election.
To date the compact has been joined by the legislatures of 10 states and the District of Columbia representing 165 electoral votes. See if you see any commonality among the member states, RI, VT, HI, DC, MD, MA, WA, NJ, IL, NY, and CA. They are the bluest of the blue states meaning Democrats seem to think a national popular election might favor their candidates.
This movement is not going away. NY just joined this year and three times a bill to join the scheme has been introduce by Democrats in the Texas legislature but so far all have failed.
Those favoring this scheme claim it is constitutional because the Constitution allows each state to determine how they award their electoral votes. Therefore they believe if states with electoral votes totaling 270 or more agree to award their electoral votes based on the national popular vote count then they are free to do so. That is everyone’s vote is counted in total but not state by state.
One reason this scheme should fail with the public and in the courts is because it violates the basic principle upon which our country is founded and guaranteed by the Constitution. A popular vote determining the presidency is a characteristic of a Democracy and that is very different from our form of government which is a representative Republic consisting of fifty sovereign states. In a democracy there are no protections for minorities from the “tyranny of the majority”. The tyranny of the majority is restricted in a Republic governed by a Constitution protecting individual rights.
In a Republic each sovereign member state, based on particular state interests, participates in the selection of the president. This is one of the characteristics of a Republic that restricts the majority and protects the individual. In the Constitution for our Republic the state participation is through the electoral college. This scheme that effectively eliminates the electoral college violates this basic characteristic of our Republic and that violates Article IV Section 4. of the Constitution which says in part “The United States shall guarantee to every State in the Union a Republican Form of Government”.
We can look at the consequences of this scheme in other ways. The majority of voters in every state are or can be disenfranchised by this scheme. The electoral votes decided by a majority from non-member states , perhaps a super-majority of states, would be totally disenfranchised now and forever more. The votes of their electors would mean nothing and yet it is the votes of the electors that determines the presidency.
Voters in the member states can also be disenfranchised. Suppose the majority of voters in say NY voted for Kerry but because of the compact the NY electors were awarded to Bush, as they would have been. Would not the NY voters have a legitimate gripe and would they not invoke Amendment #14 concerning voting rights in their behalf. The voters in NY never had an opportunity to agree or disagree with this scheme.
Constitutionally states are free to decide how to award their electoral votes but as with any freedom comes restrictions. You are free to drive a car but you are not free to drive over you neighbor’s lawn or your freedom to carry a gun does not give you freedom to indiscriminately shoot people. And the freedom to award electoral votes as they wish does not give one state the freedom to disenfranchise another.
The Constitution says no state shall without the Consent of Congress enter into any Agreement or Compact with another state. The people running this scheme are not planning to obtain this consent probably fearing they won’t get it. Based on the above arguments against this scheme I think they are wise to not seek congressional approval but of course that also violates the Constitution.
There are additional reasons this scheme should never be allowed by the public or the courts. If it was considered legal for a fraction of the total number of states to agree to choose a president based on national popular vote then they presumably could choose a president based on any criteria they agreed too, perhaps one excluding privileged white males, or one satisfying the wishes of Al Gore. What if a different group of states totaling 270 electoral votes decided that only popular votes from states with picture ID laws were valid and awarded their votes based on that total. The process for getting such changes approved is called amending the Constitution but those favoring this scheme have no desire to attempt that either knowing it would certainly fail.
But what about a popular vote for the president, is that a good idea?
Elaborating on what was stated above, a national popular vote is a form of democracy. But the Constitution creates a republican form of government and not a democracy. Why? Madison explains why we do not have a democracy in The Federalist Paper #10. It is because as he put it “Democracies….have ever been found incompatible with personal security, or the rights of property; and have in general been as short in their lives, as they have been violent in their deaths”. That is with majority rule minority factions and individuals can be treated poorly and often their freedoms are violated and their property taken. He warns this often leads to chaos.
In a representative Republic composed of sovereign states the effect of large factions located in particular regions of the country is diminished. Madison was concerned about organizations that might be popular say in the South but not the rest of the country. With the form of government they gave us if any group totally dominated the South or any region, its influence would be reduced because the electors from other states would not be beholden to large majorities in different states. This protection against large factions dominating elections is eliminated with a national popular vote. Also as mentioned earlier, individual state interests are not considered under any national popular vote scheme.
Perhaps it is well to remember that when a woman of Philadelphia asked Benjamin Franklin after the deliberations over the new Constitution were completed, “Well, Doctor, what have we got, a republic or a monarchy?” Franklin responded, “A republic, if you can keep it.” This scheme is an attempt to destroy the republic.
Suppose this scheme goes into effect and survives all legal challenges. What could the disenfranchised states do, what could Texas do?
The Constitution is a legally binding compact or contract agreed to by all 50 states. Importantly, in law the interpretation of words in the compact are the meanings given at the time the compact was formed unless changed by some form of agreement entered into at a later time. At no time, either when ratified or when amended did the interpretation of the compact change to allow a president to be elected by a national popular vote.
Therefore the members of this scheme would be violating the compact entered into by all the states and that would cause the compact to no longer be in effect. Since the compact formed the union, breaking the compact in such an obvious and intentional manner dissolves the Union. Texas and other non-member states would be free to go it alone or form a separate union. Even though I might desire a union of red states without any blue states, I can’t support a scheme that dissolves the Union with all of the consequences certain to follow.
We who oppose this scheme as being illegal and against the Constitution as written by the founders need to be on guard because popular votes determining elections appear to be good ideas and state legislatures have been known to make very bad decisions. Two very very bad decisions will illustrate that point.
The Constitution was amended by the states to allow for the popular election of senators within states contrary to the advise of our founders. When senators were chosen by the states legislators no federal act could become law without the approval of a majority of the states and every justice to the Supreme Court favored states rights. But the states in their wisdom gave this protection away because of the difficulty they experienced selecting senators.
Even worse perhaps, the Constitution forbade the Federal Government from taxing income leaving that greatest source of wealth to the states. Foolishly, however, the states gave that wealth to the federal government by approving amendment #16. The founders thought the states should control the wealth and give to the Federal Government only what was required to execute the limited powers they granted it. Now of course the federal government controls that wealth and uses it to bribe the states to do its bidding.
So don’t blindly expect your state to do the right thing. Get active, find out if your state is going to consider this scheme and if so let them know that the National Popular Vote Compact is a very Bad Idea.