Even before the election, Democrats have been clamoring for a popular vote. Toward that objective, there is a movement afoot to adopt something called the National Popular Vote (NPV). The National Popular Vote would guarantee the Presidency to the candidate that receives the most popular votes in participating states.
The NPV has been enacted in eleven states representing 165 electoral votes (CA, DC, HI, IL, MA, MD, NJ, NY, RI, VT, WA). Note that these eleven states vote for Democrats. The NPV has passed in one house of the legislature in twelve additional states (AR, AZ, CO, CT, DE, ME, MI, NC, NM, NV, OK, OR). Eight of these states, representing 57 electoral votes, vote for Democrats.
The NPV proposal is essentially an interstate compact. The participating states agree in advance to automatically allocate their electoral votes to the winner of the national popular vote, disregarding the popular votes in their respective states and nullifying the voters’ will. The NPV would allow 34% of the states to take an election every four years.
Because it is easier to have 34% of the states with the required electoral votes to join the interstate compact that it is to get two-thirds of Congress and three-fourths of the states to pass an amendment, the interstate compact becomes a subversive technique to bypass the Constitution without formally amending it.
Advantages of the NPV
Many people believe that a direct popular vote is more democratic and fair than the Electoral College. However, the United States has a representative democracy rather than a direct democracy. We have representatives who vote on each bill rather than having all of us vote on each bill.
Proponents of NPV believe that a popular vote ensures that citizens’ votes have equal weight. However, under NPV, the states with large populations will have votes more weighted than smaller states: something the Electoral College was designed to prevent. The Founding Fathers were not in favor of regional presidents.
Disadvantages of NPV
Opponents of NPV believe the NPV promotes regional candidates. If a particular candidate was in favor in California, New York, Illinois and other high population states might not need the votes of other areas of the country. Further, a regional candidate who did not have broad support could lead to a splintered, fragmented country.
Opponents of NPV point to the potential logistical problems: in a hotly contested national popular election, the majority of precincts across the country might require close observation instead of a handful of states or precincts as we do now.
The NPV interstate compact promotes mobocracy at the voters’ expense. Why eeven have an election.
Constitutionality of NPV
The Constitution’s Compact Clause (Article I, Section 10, Clause 3) provides that “No State shall, without the consent of Congress . . .enter into any Agreement or Compact with another State . . .” In 1978, in United States Steel Corp., v Multistate Tax Commission, the U.S. Supreme Court ruled that state compacts require Congressional approval only when they “encroach upon the supremacy of the United States.”
Bypassing the Constitution of the United States to undermine the Electoral College is effectively encroaching on the supremacy of the United States as expressed in the Constitution. The potential of states damaging the nations’ federalist structure through interstate compacts is very real.
“By skirting around the checks and balances of the Constitution, the NPV would risk setting a standard that states can legalize non-congressionally approved compacts as an alternative for a constitutional amendment.”
Which brings us to the Electoral College. Why has the Electoral College lasted for as long as it has?
First, the Electoral College maintains our separation of powers among the three branches. The Electoral College votes only for the President and Vice President.
Second, the Electoral College is fairly accurate. Out of forty-five presidents, there have been only five instances of the Electoral College winner losing the popular vote: about 90% accuracy. If one counts the number of presidential elections (87), then the Electoral College has an accuracy rate of 96% (trivia: of the 44 presidents prior to president-elect Trump, only 21 served more than one term).
Third, the Electoral College protects the interests of the minorities, the small less populated states.
Fourth, the Electoral College prevents victories solely based on densely populated regions.
Fifth, it creates more stability for the political process because it uses the two party system.
Sixth, it promotes federalism by providing each state the freedom to create laws with respect to voting and it gives the states the power to choose delegates to the Electoral College.
Seventh, it elects a president for all the people instead of only people from a specific region.
In terms of fairness, value, support of the federalist model, the Electoral College has operated flawlessly for more than 227 years. The choice is simple: the Electoral College beats the NPV, which should be relegated to the ash heap of history.