Thursday, July 29, 2010


July 29, 2010
Faithless Lawmakers
Why the National Popular Vote Interstate Compact should die.

The General Court of Massachusetts "on Tuesday approved a bill that would give the state's Electoral College votes for president to the winner of the national popular vote," reports. Last week we made a jape at the expense of this legislation, which Gov. Deval Patrick is expected to sign.
But we thought it worth taking a serious look at the effort--for while it is ridiculous, that is not the worst that can be said about it. It is a partisan protest masquerading as a high-minded reform. It is a too-clever-by-half attempt to circumvent America's constitutional structure. Its constitutional infirmity raises the prospect of future political crises worse than the 2000 election dispute.
Assuming that the Massachusetts bill becomes a law, it would not necessarily mean that, say, Sarah Palin will carry Massachusetts if she gets 50.1% of the nationwide popular vote in 2012. That would require action by other states. As Politico notes:
The law would only take effect in the unlikely event that enough other states approved similar legislation to account for the 270 electoral votes needed to win.
The idea is known as the National Popular Vote Interstate Compact. If and only if enough states have joined by July 20 of any presidential election year, those states affirm that their election officials will choose the slate of electors pledged to the candidate with the highest national popular-vote total, regardless of the preferences of their own states' voters.
In other words, it takes effect only if enough states have joined to ensure that the result will be to hand the presidency to the popular-vote "winner." It's clever because it avoids the need for a constitutional amendment, which requires a two-thirds vote in Congress and approval of 38 (3 of 4) state legislatures. The NPVIC, by contrast, could in theory be imposed by as few as 11 states (the most populous have a combined 271 electoral votes under the current apportionment) over the objections of the other 39.
It's not large states that are rushing to sign up for the NPVIC, though, as Politico notes:
So far, New Jersey, Illinois, Maryland, Washington and Hawaii have passed such legislation. If Massachusetts's Democratic governor, Deval Patrick, wre to sign the bill, it would bring the total of electoral votes potentially determined by this method to 73.
The common thread tying these states together is political party. In all of them, as well as in Massachusetts, the bill passed at a time when Democrats had complete control of the legislative process. (New Jersey had a Democratic governor at the time it joined the compact; and Democrats in the Hawaii Legislature hold a veto-proof majority, which they had to use to override the objections of Gov. Linda Lingle, a Republican.)
The National Popular Vote website reports that in three other states--California, Rhode Island and Vermont--the legislation was approved by lawmakers in both houses only to be vetoed by the governor. All three states have Republican governors and Democratic majorities in both houses.
What is more, all of the nine states where the legislation has reached the governor's desk have voted Democratic in all of the past five presidential elections (the past six elections in the cases of Hawaii, Massachusetts, Rhode Island and Washington), and usually by double-digit margins.
It's no mystery why this idea appeals to Democrats. They are still bitter over the disputed 2000 presidential election, in which Al Gore "won" the popular vote but George W. Bush won the actual election. Changing the rules wouldn't necessarily benefit Democrats, but you can see why trying to do so might make them feel good.
The NPVIC, however, cannot be instituted without the support of at least some states Bush won in 2000. The Gore states (plus the District of Columbia) had just 267 votes then and are down to 260 in the current apportionment. This number is likely to decline further as a result of reapportionment after the 2010 census, as suggested by an Election Data Services study:
Seven states--Arizona, Florida, Georgia, Nevada, South Carolina, Utah and Washington--would each gain a seat and Texas would gain three seats if the U.S. House of Representatives were reapportioned with census population estimates for July 1, 2009, according to Election Data Services' analysis. Eight states would lose single seats--Illinois, Iowa, Louisiana, Massachusetts, Michigan, New Jersey, New York, and Pennsylvania, while the state of Ohio now stands to lose two seats.
Gore states would gain one vote and lose seven, for a net loss of six, leaving them with 254, or 16 short of a majority. The actual apportionment will look different from these estimates, and the bottom line may be greater or smaller than minus-six, but the overall patterns of population growth make it inevitable that the Gore states' electoral strength will have eroded by 2012.
That means that in order to make the NPVIC a reality, its proponents would have to convince lawmakers in states whose voters benefited from the Electoral College in 2000 by seeing the man they favored become president. To say the least, this will be a harder sell in Texas or Georgia--or, for that matter, in Florida--than in Massachusetts and Illinois.
To be sure, it is an accident of history that this is a Democratic measure. Before the 2000 election, some pundits speculated that the opposite outcome might obtain: that Bush might outpoll Gore while losing the election. Had that happened, Republicans might today be pushing for the popular vote and Democrats defending the traditional role of states.
Past performance is no guarantee of future results, and it's possible that going to a popular vote would benefit the Republicans in a future election. Thus to a considerable extent both Democratic support and Republican opposition to the NPVIC are irrational, a case of generals fighting the last war.
Yet the NPVIC is a terrible idea even if electing the president by popular vote is a good one. This is because of a constitutional infirmity that its backers have failed to anticipate. features a page called "Myths About the Constitution" that includes the following argument debunking the assertion that the NPVIC would be unconstitutional (omitting footnotes and added emphases):
A successful challenge to the National Popular Vote compact on constitutional grounds is unlikely, given the fact that constitutional law concerning interstate compacts is well settled and given the fact that the National Popular Vote compact is based on the exclusive and plenary (i.e., complete) power of the states to award their electoral votes as they see fit.
First, the U.S. Constitution says:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . ."
The wording "as the Legislature . . . may direct" in the Constitution is an unqualified grant of plenary and exclusive power to the states. This constitutional provision does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state's electoral votes. States may exercise this grant of power in any way they see fit, provided only that they do not violate other specific provisions of the Constitution. As the U.S. Supreme Court stated in the 1892 case of McPherson v. Blacker:
"The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object. The framers of the constitution employed words in their natural sense; and, where they are plain and clear, resort to collateral aids to interpretation is unnecessary, and cannot be indulged in to narrow or enlarge the text."
The Court continued:
"In short, the appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States"
In Bush v. Gore in 2000, the Court called article II, section 1, clause 2:
"The source for the statement in McPherson v. Blacker . . . that the State legislature's power to select the manner for appointing electors is plenary."
In short, the U.S. Supreme Court has repeatedly characterized the authority of the states over the manner of awarding their electoral votes as "plenary" and "exclusive."
Color us convinced. The Constitution does not limit state legislatures' power to choose the method of selecting electors. Therefore, the NPVIC is not unconstitutional.
It is unenforceable.
Think about that old Philosophy 101 question: If God is omnipotent, can he make a rock so big that he can't lift it? It seems like a puzzle, but the answer is clearly no. The premise that God is omnipotent leads to the conclusion that he can both make and lift a rock of any size. "A rock so big that he can't lift it" is a logically incoherent construct, not a limitation on God's power.
The NPVIC is based on the similarly illogical premise that lawmakers with plenary powers can enact a law so strong that they can't repeal it. In truth, because a state legislature's power in this matter is plenary, it would be an entirely legitimate exercise of its authority to drop out of the compact anytime before the deadline for selecting electors--be it July 21 of an election year or Nov. 9.
Call it the problem of faithless lawmakers--somewhat akin to the question of faithless electors. Legal scholars differ on whether state laws requiring electors to vote for the candidate to whom they are pledged are constitutional. But because the power of legislatures to choose the method of selecting electors is plenary, there is no question that the Constitution would permit faithless lawmakers to exit the NPVIC.
If one or more states did so, and it affected the outcome of the election, the result would be a political crisis that would make 2000 look tame. Unlike in that case, the Supreme Court would be unable to review the matter because it would be an exercise in plenary lawmaking authority. Challenges in Congress to the electoral vote count would be almost inevitable. Whatever the outcome, it would result from an assertion of raw political power that the losing side would have good reason to see as illegitimate.
The NPVIC could make such a crisis even out of an undisputed election. In 1888, Grover Cleveland lost his bid for a second consecutive term despite outpolling Benjamin Harrison nationally. But there was no Florida in 1888; the outcome in every state was unquestioned. If the NPVIC were in effect, Cleveland would have won--unless a Harrison state, exercising its plenary power, ditched the compact and selected the Harrison electors instead. Then, chaos.
Since the NPVIC would be legally unenforceable, only political pressure could be brought to bear to ensure that state legislatures stand by their commitments to it. Would this be enough? Let's put the question in starkly partisan terms: If you're a Republican, do you trust Massachusetts lawmakers to keep their word, and to defy the will of the voters who elected them, if by doing so they would make Sarah Palin president?

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