National Popular Vote?!

A nationwide effort is underway to establish a National Popular Vote (NPV) Compact among volunteering states to circumvent the U.S. Constitution and dramatically alter the role of the Electoral College.  The Michigan House Standing Committee on Redistricting and Elections heard presentations and testimony on NPV on November 1, 2011.  Since then no action has been taken by the House to bring the issue to a floor vote, although the Senate did pass the legislation.

However, progressive groups continue to work toward a successful NPV capability by persuading state legislatures that it is in their interest to approve legislation enrolling their states in an NPV Compact.  The goal is to recruit those states having the most votes in the Electoral College so that, banded together, the Compact members will have the capability to decide every presidential election as all will have agreed to cast their electoral ballots in favor of the winner of the national popular vote, regardless of how the citizens of their own states voted.  As of April, 2012, eight states and the District of Columbia (having 132 combined electoral votes amount to 24.5% of the Electoral College and 49% of the 270 votes needed for the compact to go into effect) have joined the Compact:  Hawaii, Washington, California, Illinois, Maryland, New Jersey, Massachusetts, and Vermont.   

The articles cited below offer an in-depth understanding of the NPV plan and an explanation of why the Electoral College has been a positive and effective means of selecting our presidents.

Destroying the Electoral College: The Anti-Federalist National Popular Vote Scheme
by Hans von Spakovsky at The Heritage Foundation
“The National Popular Vote (NPV) plan is the latest in a long line of schemes designed to replace the Electoral College.  Imbued with the ideals of this nation’s Founders, the Electoral College has proved itself to be both effective in providing orderly elections for President and resilient in allowing a stable transfer of power of the leadership of the world’s greatest democracy.  Therefore, while it would be a mistake to replace the Electoral College, replacing this system with the NPV would be a disaster.”

Keep the Electoral College!
By Lawrence W. Reed, published on March 6, 2001
This article appears in the March 2001 issue of Ideas on Liberty, a publication of the Foundation for Economic Education.
“Should the Electoral College be abolished? Last year's presidential election raised the question once again but it also answered it with an emphatic NO. The Framers of the Constitution knew precisely what they were doing when they established the system for electing presidents…”

Is the Electoral College Outdated?  
John Fortier, Bipartisan Policy Center
presented by The Allan P. Kirby, Jr., Center for Constitutional Studies & Citizenship, the Washington, D.C., an extension of Hillsdale College.

A Critique of the National Popular Vote by John Samples

John Samples is director of the Center for Representative Government at the Cato Institute. He is the author of The Fallacy of Campaign Finance Reform and the editor of James Madison and the Future of Limited Government.
Published on October 13, 2008

“The National Popular Vote plan (NPV), introduced in more than 40 states, and adopted by 4, proposes an interstate compact to bring about direct election of the president of the United States. The proposal eliminates states as electoral districts in presidential elections by creating a national electoral district for the presidential election, thereby advancing a national political identity for the United States. States with small populations and states that are competitive may benefit from the electoral college. Few states clearly benefit from direct election of the president. NPV brings about this change without amending the Constitution, thereby undermining the legitimacy of presidential elections. It also weakens federalism by eliminating the role of the states in presidential contests. NPV nationalizes disputed outcomes and cannot offer any certainty that states will not withdraw from the compact when the results of an election become known. NPV will encourage presidential campaigns to focus their efforts in dense media markets where costs per vote are lowest; many states now ignored by candidates will continue to be ignored under NPV. For these reasons, states should not join the National Popular Vote compact.”  [Download the PDF of Policy Analysis no. 622 (387 KB)]

Following are some excerpts from Mr. Samples’ policy analysis:

The prominent journalist, E.J. Dionne wrote of the NPV plan: “this is an effort to circumvent the cumbersome process of amending the Constitution.  That's the only practical way of moving toward a more democratic system.  Because three-quarters of the states have to approve an amendment to the Constitution, only 13 sparsely populated states—overrepresented in the electoral college—could block popular election.”  Some who believe the constitutional method of electing the president should be changed agree that the NPV plan circumvents the Constitution.  The editorial board of The Milwaukee Journal Sentinel concluded, “The U.S. Constitution, when it comes to the Electoral College, is flawed.  However, rather than take the direct route to fix that, amending the Constitution, this proposal simply subverts it.  This method complies with the letter of the Constitution but violates the spirit.”

...The Framers chose an alternative to direct election which is described in Article II, section 1 of the Constitution.  Of course, that decision by the framers need not bind Americans for all time. The Constitution also permits overturning the decisions of the framers through amendments to the Constitution. In contrast, NPV proposes that a group of states with a majority of electoral votes should have the power to overturn the explicit decision of the Framers against direct election.  Since that power does not conform to the constitutional means of changing the original decisions of the framers, NPV could not be a legitimate innovation.

...As the renowned constitutional scholar Martin Diamond said, direct election of the president will not “increase the democracy of the election or the directness of the election but the pure nationalness of the election.  The sole practical effect of [direct election] will be to eliminate the States from their share in the political process.”

...if people create institutions, institutions also create people, and the NPV will lead to a more nationalized and progressive electorate.

...As in 2000, it is possible that one state will experience an election dispute that could affect the outcome of the presidential race.  The struggles associated with such a dispute will be relatively confined.  The same would not be true of the NPV alternative.  Rational candidates or party leaders would have reason to dispute results throughout the nation to overturn close outcomes.  Indeed, what constitutes a close election would become broader since the necessary votes to overturn the result could be found nationwide.  That would be more difficult and contentious than the current system.
 
...The authors of NPV note that under the current system candidates write off many uncompetitive states, which means those states are ignored by the campaigns.
...Why should citizens in a state be concerned about being ignored because of a lack of competition?  Voters can easily gather sufficient information from the national media to cast their ballot.  Businesses in a neglected state may miss the tax receipts generated by the candidate, her entourage, and the media, but such losses do not seem relevant.  After all, the nation does not hold presidential elections to foster local economic development…NPV thus appeals to the material and thus political interests of voters in neglected states.

...NPV advocates believe that direct election of the president by the greater number of voters weighs so heavily on the normative scales that bypassing
constitutional propriety should be accepted.  Yet the U.S. Constitution establishes a liberal republic, not a majoritarian democracy.  The NPV plan appears unlikely to deliver its promised benefits and likely to impose other costs, not least by throwing into question the legitimacy of our presidential contests.

...It is often assumed that the electoral college persists because of the difficulty of amending the Constitution.  But it appears that both small and large states have reasons to support the status quo in electing a president, and other states have good reason to be indifferent toward a change to direct election.  The electoral college, though much maligned, may satisfy the interests of more states and voters than any other alternative means of electing the president including NPV.

Below is the entire text of the National Popular Vote Compact legislation to which all participating states must agree:

“Agreement Among the States to Elect the President by National Popular Vote”

Article I–Membership
Any State of the United States and the District of Columbia may become a member of this agreement by enacting this agreement.

Article II–Right of the People in Member States to Vote for President and Vice President
Each member state shall conduct a statewide popular election for President and Vice President of the United States.

Article III–Manner of Appointing Presidential Electors in Member States
Prior to the time set by law for the meeting and voting by the presidential electors, the chief election official of each member state shall determine the number of votes for each presidential slate in each State of the United States and in the District of Columbia in which votes have been cast in a statewide popular election and shall add such votes together to produce a “national popular vote total” for each presidential slate.
The chief election official of each member state shall designate the presidential slate with the largest national popular vote total as the “national popular vote winner.”
The presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.
At least six days before the day fixed by law for the meeting and voting by the presidential electors, each member state shall make a final determination of the number of popular votes cast in the state for each presidential slate and shall communicate an official statement of such determination within 24 hours to the chief election official of each other member state.
The chief election official of each member state shall treat as conclusive an official statement containing the number of popular votes in a state for each presidential slate made by the day established by federal law for making a state’s final determination conclusive as to the counting of electoral votes by Congress.
In event of a tie for the national popular vote winner, the presidential elector certifying official of each member state shall certify the appointment of the elector slate nominated in association with the presidential slate receiving the largest number of popular votes within that official’s own state.
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. The chief election official of each member state shall immediately release to the public all vote counts or statements of votes as they are determined or obtained.
This article shall govern the appointment of presidential electors in each member state in any year in which this agreement is, on July 20, in effect in states cumulatively possessing a majority of the electoral votes.

Article IV–Other Provisions
This agreement shall take effect when states cumulatively possessing a majority of the electoral votes have enacted this agreement in substantially the same form and the enactments by such states have taken effect in each state.
Any member state may withdraw from this agreement, except that a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.
The chief executive of each member state shall promptly notify the chief executive of all other states of when this agreement has been enacted and has taken effect in that official’s state, when the state has withdrawn from this agreement, and when this agreement takes effect generally.
This agreement shall terminate if the electoral college is abolished.
If any provision of this agreement is held invalid, the remaining provisions shall not be affected.

Article V–Definitions
For purposes of this agreement,
“chief executive” shall mean the Governor of a State of the United States or the Mayor of the District of Columbia;
“elector slate” shall mean a slate of candidates who have been nominated in a state for the position of presidential elector in association with a presidential slate;
“chief election official” shall mean the state official or body that is authorized to certify the total number of popular votes for each presidential slate;
“presidential elector” shall mean an elector for President and Vice President of the United States;
“presidential elector certifying official” shall mean the state official or body that is authorized to certify the appointment of the state’s presidential electors;
“presidential slate” shall mean a slate of two persons, the first of whom has been nominated as a candidate for President of the United States and the second of whom has been nominated as a candidate for Vice President of the United States, or any legal successors to such persons, regardless of whether both names appear on the ballot presented to the voter in a particular state;
“state” shall mean a State of the United States and the District of Columbia; and
“statewide popular election” shall mean a general election in which votes are cast for presidential slates by individual voters and counted on a statewide basis.