Tuesday, July 27, 2010

"National Popular Vote" - another way to bypass the Constitution

I'm seriously concerned about the National Popular Vote (NPV) campaign, which aims to "implement a nationwide popular election of the President of the United States". It seeks to do this by having every State pass a law that its electoral votes should be assigned to the candidate winning a majority of the individual votes cast in a Presidential election on a nationwide basis. The latest State to adopt such a law is Massachusetts, where the legislature has just sent a bill to the Governor for signature.

There are four things that worry me about this effort. Three are relatively simple to sum up.

1. Such a law may override the democratic preference of the people of a particular State. Let's say the majority of Massachusetts residents vote for a Democratic Party candidate for President, but his Republican Party opponent wins the majority of votes on a national basis. With this new law in effect, the electoral college votes of Massachusetts would be assigned to the Republican Party candidate, even though his opponent won in the state of Massachusetts. How can this be democratic?

2. The National Popular Vote campaign carefully words their objective as follows:

Under the National Popular Vote bill, all of the state's electoral votes would be awarded to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia.

Unfortunately, that's not true. The candidate who receives a majority of the votes cast across all 50 states as a whole - not in each of the 50 states individually - will get the electoral college votes of States adopting this legislation. That means, if Candidate X gets big majorities in a few States with large populations, he might be able to lose 30 or more of the smaller states, and still win election, because the large vote tallies of the populous states would overwhelm the smaller numbers involved in other states.

3. Because of point (2) above, the National Popular Vote campaign will open up Presidential elections to a far greater risk of vote-rigging. We've all heard the slogans about particularly egregious electoral scandals - "Vote early and vote often!" is the most common - but they'd be even more true if a majority vote were to decide the Presidency. If a more-than-usually-corrupt party machine could 'manufacture' another million votes for its candidate in a few selected areas - Chicago, New York, Detroit, St. Louis - those million fraudulent votes might be sufficient to alter the outcome of the popular vote nationwide, and therefore swing the electoral college votes of states adopting the NPV approach to the candidate benefiting from the fraud. I think the risk is far too great.

The fourth and most worrying element of the NPV campaign, in my eyes, is that it's a blatant attempt to bypass the Constitution of the United States. The provision of an Electoral College is a federal, constitutional matter, not determined by each individual State. You'll find it in Article II, Section 1 of the Constitution, as modified by the 12th, 20th and 25th Amendments. If we want to change that (or any other) part of the Constitution, there's a mechanism provided to do so (Article 5). The NPV campaign ignores this altogether, and seeks to alter the way in which individual States allocate their electoral college votes without modifying the Constitution itself.

This is extraordinarily dangerous.

In the first place, it may possibly be un-Constitutional, although that can only be decided by the US Supreme Court. The supporters of the NPV claim that their efforts are, indeed, Constitutional, in that they're not changing anything on the Federal level - only the State level. However, since their changes would involve not only the electors, but also the way they would be forced to vote, and would thus have a direct and immediate impact on a Constitutional process, I'm not so sure about their legitimacy.

In the second place, what happens to the Constitution if those opposed to one or more of its provisions discover that they can effectively change the legal foundation of the Republic without having to pass a Constitutional amendment? It's difficult - sometimes to the point of practical impossibility - to accomplish the latter, which is precisely the point. It shouldn't be easy to change the Constitution. However, if a means can be found to do so, as the NPV campaign seems to believe, then what's to stop a similar method being applied to nullify any other Constitutional provision that reformers find inconvenient? Freedom of speech? The right to keep and bear arms? Freedom of religion? What if any or all of these foundational principles of our Republic could be tossed aside by a simple process that subverts and/or ignores Constitutional checks and balances?

I think the NPV campaign is most dangerous from precisely this perspective. It attempts an end-run around the Constitution and the safeguards put in place to protect its provisions. From that perspective, I can't support it, and I think it must be stopped. The question is, how can we do so?

What say you, readers? Am I being paranoid, or do we have a real problem here? It's only fair to say that NPV supporters don't agree with my perspective, but that's hardly surprising. I'd be interested to hear your views.


EDITED TO ADD: A barrage of 'spam' comments by the well-known contributor 'Anonymous', giving pro-NPV facts and figures, has been deleted. I've already provided links to the NPV Web site, so those wanting such facts and figures can easily find them. I don't want the comment thread bogged down by having them regurgitated yet again.


joe said...

Without perusing their literature, it seems perfectly constitutional to me. The Constitution merely says

"Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors..."

If a state wishes to use the national popular vote, to divide their electors between all x candidates, give them all to the winner of their local popular vote, or base the selection on the phase of the moon, it's their choice. Note that nothing in the Constitution says that individual states even need a popular election at all. If the legislature so directs, they could have a lottery or allow a groundhog to select them.

Now, I'm definitely NOT a fan of national popular election of the President. It's already enough of a popularity contest now, but at least the candidates deign to visit the smaller states, which would likely not happen with a NPV. Of course, I'm enough of a political-Luddite that I oppose the popular election of Senators, too.

Anonymous said...

Joe is correct. The intent of the Constitution was to introduce as many steps as possible to prevent an out theft of an election. Secondly, it was to balance the rights of the larger more populous states against the rights of the smaller states. I'm not so sure that popular election of senators was such a good idea.

As we are finding, without the counterbalances, all power soon shifts to a colossal federal government unable to do more than vacuum our wallets for little actual achievement.

In this case, the State of Massachusetts is legislating the ability to vote "present" on presidential elections.

TheAxe said...

I agree it's a real problem, Maryland's already passed a version of it. It feels like they threw my vote away, 1 vote out of 300,000,000 is a lot weaker than 1 in 5,700,000. Also as you pointed out the chances of fraud are far greater.

skidmark said...

There are times when I am simply amazed at the goings-on that I am not aware of. This is one of those times.

This "notion" is one of the most dangerous threats to the Republic that I have noticed in the last many years. There was, and in my absolutely non-humble opinion continues to be, a very good reason that this country was created as a republic and not a democracy. There were, and remain, great reasons why changing the Constitution was devised as the cumbersome, time-consuming process that it is.

Those that are not happy with the "usual means" of changing the country from what it was supposed to be into some progressive idealistic utopian dream will never give up in their quest to find a chink in the fortress walls, a crack of the most infinitesimal size, where they can begin the process of trying to chip away. We are, happily (as strange as that may seem to some of you), forced to be always reactionary against their schemes. While it is a massive pain in the ass and brain, it is the consequence of having staked out the moral and political high ground.

Other than being aware of this latest insidious attempt, and making those who occupy the seats in Congress, my state legislature, and the other state legislatures aware of our opposition to it, I'm not sure what can be done - for now. However, I am fairly certain that if such a scheme is approved that it will have a tremendous and fearful effect on the tipping of the scales that currently balance our society. We have all, individually and collectively, said that there is some as-yet undefined and un-reached point beyond which we, individually and collectively, will not proceed. For me this is pretty much the definition of that point. I know not what others may say, but as for me, no mas!

stay safe.

wv = prewor. Yep! It's getting pretty close to all-out wor.

Anonymous said...

The way we elect the President has no bearing on whether we are a Republic or a Democracy. We have always been a Republic not a Democracy (electing representatives to lead the government and make decisions rather than holding a vote on absolutely everything) and we will continue to be. And no, your vote isn't worth less now, since in the past there was a very good chance your vote wasn't counted at all. If you voted for the candidate that lost your state your vote meant nothing- it did not count. Under National Popular Vote, a Republican living in Massachusetts or a Democrat in Texas can still have an effect on the election of the person that will lead the country. One man one vote is strikingly not the case under the current system, and it would be under NPV.

Ian said...

You are, as usual, so right. The effort may or may not be Constitutional -- I am no expert on Constitutional law -- but the objective is clearly not, and is clearly an effort to subvert certain parts of the Constitution. I have to admit to be exceedingly wary of so-called direct democracy anyway -- California being the poster child for why it's a terrible idea -- and am even warier of efforts to bypass the interests of the several States.

What a nuisance.

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Anonymous said...

I think the plan is Constitutional simply b/c the states have full control over how the appoint the Electors.

However I do think it is a horrible idea. Frankly, I'd rather us not waste resources on elections for President and have the state legislatures just appoint electors the way they did at the beginning of the Republic. This has the added benefit of making sure people take a good look at who they elect to state government.

Anonymous said...

I could understand wanting each state to divide its votes proportionally based on the vote in that state to reflect the popular vote. Basing it on the national vote is idiotic IMO.

You could have 100% of the votes for a candidate, yet the electoral votes would go to the other guy if he won in the other states. It makes no sense to me to allow your state's electoral votes to be determined by anything other than the popular vote in your state.


TheGraybeard said...

Looks like a pretty big barrage from the NPV folks. I assume all those "anonymous" comments are from them because who else has all those numbers and data at their fingertips? You must have hit a nerve.

When will people ever learn that art of writing laws is in understanding and addressing the unintended consequence? Just as making (US) senators elected by the general population and not selected by the states has led to destruction of states' rights, this will lead to something. I don't quite know what...

The only thing this law can possibly do is make small states less relevant and allow the president to declare more of a mandate. (What's the quote? "This chair is my mandate"??)

If you want to make the races more "fair" you need to address the primary processes. Why is it that Iowa and New Hampshire basically set the agenda? If those people choose an utter zero to run for the top job, like last time, the states that come later can have a real problem fixing it.

I think it's always wise to address this sort of single issue advocacy by asking "What are you trying to fix? Are you sure it's the best way? What will it cost? What will not doing it cost?" I don't really see a problem here, so I'm skeptical of why we'd want it fixed.

Bob said...

The present electorial college is in place to prevent the more populace states from having an undue influence on the elections. If this goes through, the only places that the presidential candidates will visit are the states like kalifornia and some of the other states. if the electorial college system is removed, it will be one step closer to mob rule.

Dad29 said...

if Candidate X gets big majorities in a few States with large populations, he might be able to lose 30 or more of the smaller states, and still win election, because the large vote tallies of the populous states would overwhelm the smaller numbers involved in other states

California, New York, Illinois, and Texas.

(By the way, I got the same spam-treatment when I ran an item on this several months ago. Californicate-based spammer.)

Anonymous said...

The 11 largest states have 56% of the population. The 11 largest states are also almost dead evenly split as far as political alliance. So, that's roughly 28% to each candidate from focusing on those states... Takes quite a bit more than that to be elected President. All that is happening now is 15 swing states decide the election, and in reality just 4 (Ohio, Pennsylvania, Virginia, Florida). Those four states got 57% of all campaign visits and 55% of all ad spending last election. That is the unbalanced system.

Anonymous said...


Although I agree that NPV is a bad idea, because it intentionally defeats an important set of checks and balances that prevents the concentration of the power to elect the president, we have bigger problems than the precise degree to which our democracy has become a degenerate exercise in majoritarianism.

The problem is that it IS a degenerate exercise in majoritarianism.

To whit:

A) the office of the president now wields extraordinary powers well beyond those it was ever intended to wield.

B) The majority of the population sees this as a feature, not a bug.

C) The majority of the population doesn't understand phrases like "degenerate exercises of majoritarianism".

Those of us who have studied history are doomed to watch everyone else repeat it.