As the National Popular Vote movement gathers steam, Republicans are beginning to react.
On Thursday, Republic National Committee (RNC) Chairwoman Ronna McDaniel told a Conservative Political Action Conference (CPAC) audience,
“Let me just say, I have an intention to be the most litigious [RNC] chair in history. I think what Democrats have done systematically to take away our rights to rig the election system, and this, to take away our votes, our Electoral College votes, and have California and New York dictate who the next president of the United States is.”
Read story here.
Of course, what she meant to say was not “take away our right to rig the election system” but rather “to take away our rights, and to rig the election system.” And maybe that’s what she did say, and it was journalists, not she, who deleted that meaning-changing comma. But if so, her choice of words sort of invited it. But McDaniel, who was a college English major, and has been around journalists long enough to know how they like to have fun with politicians, should’ve known better.
On a more serious note, GOP Sen. Ted Cruz, a lawyer, told the group the NPV is “unconstitutional.” That’s only his personal opinion, and nothing more. Courts — ultimately, the U.S. Supreme Court — decide what’s constitutional. Lawyers can only make arguments. On this, there are arguments both ways, and it’s hard to predict where courts might come out on it. Maybe the best way to predict an outcome is to look at the political composition of the Supreme Court.
Under the current Electoral College system, small-population, generally rural, and mostly red-leaning states have disproportionate voting power in electing our presidents. If you live in Alaska, your vote for a presidential Elector counts 3 times as much as a California resident’s vote. (Alaska has 1 Electoral Vote for every 236,000 residents; California has 1 Electoral Vote for every 718,000 residents.)
This system was created to persuade the slave colonies to join the Union when the United States was being formed, and has no practical function today. And because it makes some people’s vote count more than others in choosing our nation’s most powerful leader, it’s inherently undemocratic. It goes against our belief in “one person, one vote.” So it’s specious to argue that changing it “rigs” the election system, when what it actually does is unrig it.
The NPV is not obviously or overtly unconstitutional. It’s structured as an interstate compact, and the Constitution expressly allows for such agreements among states. Numerous interstate compacts are already in place. And because the Constitution generally lets states decide how to choose their presidential electors, there’s no obvious reason why states can’t use the winner of the national popular vote as their criterion. Any legal effort to defeat it would have to be based on an argument that it’s contrary to the intent of the Framers. But you could also argue that the Framers never intended the Second Amendment to apply to anything except muzzle-loading flintlock smoothbore muskets. And there’s absolutely nothing in the Constitution or our legal tradition that precludes doing legislatively what also could be done by constitutional amendment. Here, you could argue, proponents of NPV have a choice about how to accomplish their objective of electing presidents by popular vote. Certainly, it can be argued that’s fairer than the present system.
Photo: I have trouble visualizing this smiling face as that of a legal Rottweiler.
I don’t think it will be the Supreme Court that will initially rule the scheme unconstitutional. It will be individual state courts that rule it unconstitutional. Bing a state means something and state government does not like outsiders to determine who is elected in that states elections.
Since Washington was an early adopter of the NPV there have been futile attempts to be rid of it, but it cannot be challenged in the courts because it is not in effect, and may not be until a Republican wins the popular vote and it is in effect. Which may never occur but until the legislature removes it remains on the books.
The law is rather thin and it does not explain the method that the Secretary of State is supposed to determine the National Popular vote. Does he or she do it independently, in consultation with other states Secretary of States and how many must she or he consult with, consult with the Karnak stone, pull out the mason jar buried in the garden with the winners name.
Of course a current case in front of the US Supreme court could make this mute if electors in the Electoral College are free to vote for whom they please, as a plain reading of the constitution would more than suggest.
I cannot think of anything more humorous than a few Republican states passing this abomination, Trump winning the popular vote and all of Washington, Oregon, New York, California electoral votes going to him. And the Democrats who voted in the scheme going to court to discombobulate it. Maybe the state courts will tell them to stick it as they should have known better, but the courts will most likely rule on the side of voters, and the candidate the voters voted for in a state should go to electors who at least are of the same party as the guy or gal they voted for and these electors are most likely to vote for their parties candidate.
One legal way to fix the disproportionate voting power is by having more representatives in Congress.
The electoral system was not invented because of slavery. It was invented to pass the constitution in enough states. The other 11 states did not want New York and Virginia determining the President of the United States. Sure the first one still would have been George Washington. Technically all the states were slave colonies as slaves could be owned in any state per the crown, and slaves were owned in Canada as well. Now a lot of slaves were owned in southern states and in New England (which profited from the slave trade) where there few slaves, and slavery by wages was de rigor it just seemed people who were chattel would just give the masters more votes as who else could the slave vote for but the masters choice? Factory managers and owners could not determine a way to ensure their wage slaves voted for who they wanted. Thus it seemed unfair to count people who could not vote as whole persons in the census and for those states with people who might vote with their feet to be citizens of other states to get their current residency more representatives, and other goodies all based on the number of people in that state.
The NPV is overtly unconstitutional in the guarantees in the Washington State Constitution. Only the fact it is not in force and is inoperative prevents the court from ruling that it is unconstitutional and is an abomination that overturns common sense and givers voters in other states the power to determine an election here in Washington state, perhaps we should allow voters in Oregon, Idaho, and California to determine our governor. That would be absurd, but that is why the RPV is absurd, and its supporters are abject liars when they state the scheme is constitutional.
Geez, Mark, it’s state legislatures who are deciding to join the NPV. How did you manage to miss that little detail?
I would argue the Electoral College system is absurd. It was created over 200 years ago to persuade the slave colonies to join the United States, and hasn’t been relevant for over 150 years, in terms of its original purpose. It lingers on because the small, largely rural, states like the unfair advantage it gives them. But that goes against our democratic principles, and several times in our history it has thwarted the majority’s will. The NPV seeks to correct this by getting enough states to agree to abide by the majority results. It’s hard to see any objection to that, unless you’re against democracy and majority rule.