This article is not about the 2020 election. It’s about a more serious effort by the Democratic party to permanently control the presidency. The effort has a non-threatening name “The National Popular Vote Interstate Compact,” (“NPV”).
Under NPV, a state, by agreement with other states in the compact, awards all its electoral votes to the presidential candidate who wins the popular national vote, notwithstanding who wins the popular vote in the respective states. The compact goes into effect when the states controlling the majority of electoral votes (270 electoral votes) join the compact.
This effort is a few states shy of ratification and so far, avoids congressional review or approval.
Whether we like it or not, our Constitution is a very malleable document. It can be manipulated by those seeking power over us. Since its ratification, political parties have manipulated it to obtain control over us. The NPV is merely an extension of those efforts.
Political parties are not mentioned in our Constitution. They are groups of individuals who organize to take control of our government by winning elections.
For the first century and a half, political parties had limited powers. Professor Brian Porto, in “The Constitution and the Ballot Box” explains that while political parties organized a few years after the founding of our country, it was not until the 1912 elections, that the two major parties feared losing control of government to minor political parties. That year, Teddy Roosevelt’s Bull Moose party received more votes than the Republican and the Socialists won several congressional seats and over 1,200 local offices. State legislatures, to protect the two major parties, enacted laws making ballot access difficult for third-party candidates.
By limiting ballot access, the two major parties established a power sharing arrangement in which the two groups, a Republican party or Democratic party, would control, or share control of the governments across the U.S. With such control, the two major parties perpetually determined what laws are enacted, who receives government benefits and how commerce is regulated.
The effectiveness of the arrangement is astonishing. David Nir, in an article in the Daily Kos, estimates there are 519,682 elected officeholders in the United States. From scant party statistics, about 350 of these offices were won by third-party or Independent candidates. All other offices are held by the two major parties. A calculation places the third-party competitors’ share of the political market at 0.0006754%. The two major parties’ control 99.993% of elected offices.
Now comes NPV, that if ratified, and upheld by the courts, will end the two parties’ power sharing arrangement by creating one-party presidential rule.
As of February, 2020, the NPV has been adopted by 15 states and District of Columbia, representing 196 electoral votes. The ratifying states are Democrat strongholds (MD, NJ, Il, HA, WA, MA, DC, VT, CA, RI, NY, CT, CO, DE, NM, OR). Four of these states ratified in 2019.
Seventy-four more electoral votes are needed for ratification, which is possible. The measure is still active in states having 101 electoral votes and controlled by Democrats or could swing Democratic: VA (13), NC (15), WI (10), GA (16), MN (10), NH (4), AZ (11), MI (16), NV (6).
If the Democrats secure ratification, they bind every compact state to cast all votes for the presidential candidate winning the popular vote. The Democrats would no longer need to campaign nationwide, they only need to win NPV states to win the presidency.
Once Democrats gain control of the presidency in this manner, the electoral college is defunct. The NPV changes the electoral structure of the Constitution from a candidate needing to win a majority of the electoral vote, to one needing only the largest percentage of an undifferentiated, nationwide, popular vote.
If Democrats win the White House in 2020, it is likely they pick up the remaining electoral votes needed to ratify NPV. The constitutionality of the NPV will be up to the Supreme Court. Unfortunately, the Constitution has conflicting provisions.
Article II of the Constitution vests state legislatures with plenary power to appoint the number of electors equal to the number of electoral votes the state can cast. There is no further constitutional or federal statutory clarification on how electors are to vote. In fact, our founding fathers viewed the electoral college as a group of wise-men having a final check on the voters.
Conversely, Article I, section 10, of the Constitution, prohibits states from entering into compacts with other states, without the consent of Congress. While the literal reading of this clause appears to mandate the consent of Congress, the Supreme Court narrowed the need for congressional approvals to situations “tending to the increase of political powers in states, which may encroach upon or interfere with the just supremacy of the United States.”
While it is likely the Supreme Court strikes down the NPV as a fundamental change in our constitutional framework, letting the conflict get that far is a massive risk for the country. The consequences of NPV need to be explored before it is “ratified” and a presidential election is in doubt.
Action: Congress needs to hold hearings on NPV to understand the limits of state power under the Compacts clause, and the scope of power held by presidential electors.
Congress needs also to explore the social, economic, and political impacts of NPV on the union.
If Congress finds NPV violates the Compact clause, it should reject it before ratification.
Organizations supporting federalism, free markets and individual liberty should start educating citizens on this issue.
This article was first published in The Libertarian Republic, March 12, 2020.