Virgina House of Delegates Votes to Join the NPVIC: Legitimate use of state’s power or unconstitutional attack on the Electoral College?

NPVIC On Tuesday, February 11th, the Virginia House of Delegates voted to join the National Popular Vote Interstate Compact (NPVIC). The NPVIC is a compact that requires participating states to award their electors to the winner of the national popular vote regardless of state election results, effectively nullifying the electoral college. NPVIC will go into effect once states with a combined total of 270 electoral votes join the compact. Is the NPVIC a legitimate exercise of a state’s plenary power to appoint electors “as the Legislature thereof may direct,” or is it an unconstitutional end run around the electoral college?
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On Tuesday, February 11th, the Virginia House of Delegates voted to join the National Popular Vote Interstate Compact (NPVIC). The NPVIC is a compact that requires participating states to award their electors to the winner of the national popular vote regardless of state election results, effectively nullifying the electoral college. NPVIC will go into effect once states with a combined total of 270 electoral votes join the compact. Is the NPVIC a legitimate exercise of a state’s plenary power to appoint electors “as the Legislature thereof may direct,” or is it an unconstitutional end run around the electoral college?

In order to answer that question, it’s important to understand something of the origin and historical purpose of the Electoral College. The question of how we should select our executive was one of the most debated issues of the Constitutional Convention of 1787, and its solution, the Electoral College system, was one of the Founders proudest achievements. Hamilton called the Electoral College, “excellent.”

A Republican Check against Direct Democracy.

The Founders rejected the idea of selecting the president through a national popular vote. They knew from history the evils that accompanied direct democracies. Direct democracies always devolved into mob rule where the 51% could trample the rights of the 49%; this tended to lead to tyranny. Nevertheless, the Framers believed that the majority voice was essential to determining the will of the people, but that their voice must be filtered and constrained through civic devices so that the rights and interests of the minority were protected. The Electoral College is just such a device.

The Electoral College system requires an absolute majority of votes to win the presidency. If no candidate receives an absolute majority, the House of Representatives selects the president with each state casting one vote, requiring at least 26 votes to win. Before the advent of organized, political parties, political interests were mostly defined by state interests, not party platforms. The Founders expected each state to vote for their favorite sons; for this reason, each elector was required to cast two votes with one being for an out-of-state candidate. The Founders believed that most elections would fail to produce a winner and would be resolved by Congress. Not only did the Founders reject a national popular vote, they didn’t even require a state popular vote. In some states, the electors were appointed by the state’s legislature.

The Federalist Nature of the Electoral College.

The United States is a federation of 50 sovereign states; hence, we are the United States, not the United Peoples, of America. It is clear from the Founders’ back and forth discourse at the convention that they intended the principle of federalism to be preserved in the process of choosing the president. The Electoral College preserves federalism in the electoral process by allowing the individual states to select the president and ensuring each state is given fair representation. Notice I said fair, not equal. The Fathers already wrestled with the dilemma of how to represent states of different sizes and populations in the fairest way possible. In the end, they settled on Madison’s Virginia Plan in which each state received representation in the House of Representatives, a.k.a. “The People’s House,” based on their population size but equal representation in the Senate. The same logic was applied to the allocation of electors. Each state receives one elector for each of their representatives in the House and one for each of their senators.

The EC requires coalition building.

In order for a candidate to win an absolute majority, they must gain the support of many different groups of people across many states. The Founders wanted to ensure that just a few states could not dictate the choice of president to the rest of the country. Remember, the Founders believed that the “will of the people” must not come only from the majority, but must also respect the rights and interests of the minority, and this is accomplished through broad coalition building. NPVIC would make campaigns focus on popularity rather than the needs and interests of a broad spectrum of Americans. There would be no need for grassroots efforts, only slick, national ad campaigns that would take on the character of a late-night, ShamWoW infomercial.

The importance of “finely wrought” Constitutional procedures.

The phrase, “finely wrought” is a legal term of art defined in INS v. Chadha(1983). A “finely wrought” Constitutional procedure is one that was developed through much debate and deliberation. In INS v. Chadha, the Supreme Court ruled that the one-house legislative veto enacted by the House of Representatives was unconstitutional and unenforceable because it violated fundamental elements of the legislative process prescribed in the Constitution, namely bicameralism and the requirements of the Presentment Clause. SCOTUS ruled that such “finely wrought and carefully considered” constitutional procedures could only be altered through the Article V amendment process. Every facet of the EC clearly meets the definition of “finely wrought and carefully considered” procedures (Patrick C. Valencia).

The proponents of the NPVIC argue that the compact does not alter the constitutionally prescribed procedures since the Constitution grants plenary power to the states to appoint electors as they see fit. However, this ignores a basic principle of Constitutional law. There are two basic kinds of powers in the Constitution: reserved powers and delegated powers. The power to appoint electors is a delegated power. SCOTUS has repeatedly ruled against the exercise of delegated powers where the scope and historical purpose of the power is violated, even when it superficially conforms to the constitutional text.

As we’ve already seen, a national popular vote is fundamentally opposed to both the scope and historical purpose of the EC. The NPVIC destroys the federalist nature of the EC, shifts the focus of the EC from interests and values to simple popularity, and eliminates the need for broad coalition building. In addition, the NPVIC violates the clear intent of the Founders that electors should serve the interests of the people of their state and be insulated from the influence of electors of other states. This is why the Constitution requires that the electors of each state should meet in their respective states and on the same day. Not only does the NPVIC allow electors to be influenced by other states, but to be determined by them.

To compact or not to compact.

Article I, Section 10 of the U.S. Constitution prohibits states from forming compacts with each other unless approved by Congress. Proponents of the NPVIC claim that their compact does not require congressional approval, citing U.S. Steel v. Multistate Tax Comm’n (1978) in which SCOTUS ruled that interstate compacts only need congressional approval if they increase state power at the expense of federal power. Constitutional law professor, Rob Natelson, questions whether or not SCOTUS would rule the same way today as they did in 1978. He notes that, “The Constitution’s language requiring congressional approval is crystal clear, and the court today is much more respectful of the Constitution’s text and historical meaning than it was in 1978.” Natelson goes on to say that even following the 1978 ruling, the NPVIC would need approval by Congress as it weakens federal institutions by eliminating the role of the House of Representatives in the electoral process and it substantially alters the presidential election process without involving Congress.

Even if NPVIC was submitted to Congress for approval, Congress can’t approve a compact to do something that Congress is unable to enact on its own. Since Congress can’t replace the EC with national popular vote without going through the Article V amendment process, it can’t approve a compact for the states to do the same.

Conclusion:

NPVIC is unconstitutional for the following reasons: it (1) violates the scope and historical purpose of the state’s delegated power to appoint electors. (2) It seeks to effectively alter the Electoral College’s “finely wrought” constitutional procedures without the Article V amendment process. And, (3) it violates the Interstate Compact Clause by creating a compact without the requisite congressional approval. At its present momentum, NPVIC may gain enough states in time for the 2024 election when it will certainly face legal challenges. While SCOTUS has gotten things horrifically wrong at times, I think that that the current bench leans sufficiently toward a conservative, originalist view that they should get this one right. Given a Trump victory in November and one or two additional SCOTUS appointments there should be no doubt that NPVIC should be shot down by SCOTUS.

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5 thoughts on “Virgina House of Delegates Votes to Join the NPVIC: Legitimate use of state’s power or unconstitutional attack on the Electoral College?

  1. The Interstate Compact on Placement of Children is one of the many interstate compacts that do not require (and never received) congressional consent.

    Congressional consent is not required for the National Popular Vote compact under prevailing U.S. Supreme Court rulings.

    The U.S. Constitution provides:
    “No state shall, without the consent of Congress,… enter into any agreement or compact with another state….”

    Although this language may seem straight forward, the U.S. Supreme Court has ruled, in 1893 and again in 1978, that the Compacts Clause can “not be read literally.” In deciding the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the Court wrote:
    “Read literally, the Compact Clause would require the States to obtain congressional approval before entering into any agreement among themselves, irrespective of form, subject, duration, or interest to the United States.

    “The difficulties with such an interpretation were identified by Mr. Justice Field in his opinion for the Court in [the 1893 case] Virginia v. Tennessee. His conclusion [was] that the Clause could not be read literally [and this 1893 conclusion has been] approved in subsequent dicta.”

    Specifically, the Court’s 1893 ruling in Virginia v. Tennessee stated:
    “Looking at the clause in which the terms ‘compact’ or ‘agreement’ appear, it is evident that the prohibition is directed to the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States.”

    The state power involved in the National Popular Vote compact is specified in Article II, Section 1, Clause 2 the U.S. Constitution:
    “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”

    In the 1892 case of McPherson v. Blacker (146 U.S. 1), the Court wrote:
    “The appointment and mode of appointment of electors belong exclusively to the states under the constitution of the United States”

    The National Popular Vote compact would not “encroach upon or interfere with the just supremacy of the United States” because there is simply no federal power — much less federal supremacy — in the area of awarding of electoral votes in the first place.

    In the 1978 case of U.S. Steel Corporation v. Multistate Tax Commission, the compact at issue specified that it would come into force when seven or more states enacted it. The compact was silent as to the role of Congress. The compact was submitted to Congress for its consent. After encountering fierce political opposition from various business interests concerned about the more stringent tax audits anticipated under the compact, the compacting states proceeded with the implementation of the compact without congressional consent. U.S. Steel challenged the states’ action. In upholding the constitutionality of the implementation of the compact by the states without congressional consent, the U.S. Supreme Court applied the interpretation of the Compacts Clause from its 1893 holding in Virginia v. Tennessee, writing that:
    “the test is whether the Compact enhances state power quaod [with regard to] the National Government.”

    The Court also noted that the compact did not
    “authorize the member states to exercise any powers they could not exercise in its absence.”

  2. The Founders created the Electoral College, but 48 states eventually enacted state winner-take-all laws.

    Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1
    “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

    Neither of the two most important features of the current system of electing the President (namely, universal suffrage, and the 48 state-by-state winner-take-all method) are in the U.S. Constitution. Neither was the choice of the Founders when they went back to their states to organize the nation’s first presidential election.

    In 1789, in the nation’s first election, a majority of the states appointed their presidential electors by appointment by the legislature or by the governor and his cabinet, the people had no vote for President in most states, and in states where there was a popular vote, only men who owned a substantial amount of property could vote, and only three states used the state-by-state winner-take-all method to award electoral votes.

    The current winner-take-all method of awarding electoral votes is not in the U.S. Constitution. It was not debated at the Constitutional Convention. It is not mentioned in the Federalist Papers. It was not the Founders’ choice. It was used by only three states in 1789, and all three of them repealed it by 1800. It is not entitled to any special deference based on history or the historical meaning of the words in the U.S. Constitution. The actions taken by the Founding Fathers make it clear that they never gave their imprimatur to the winner-take-all method. The winner-take-all method of awarding electoral votes became dominant only in the 1880s after the states adopted it, one-by-one, in order to maximize the power of the party in power in each state. The Founders had been dead for decades

    The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state’s electoral votes.

    States have the responsibility and constitutional power to make all of their voters relevant in every presidential election and beyond. Now, 38 states, of all sizes, and their voters, because they vote predictably, are politically irrelevant in presidential elections.

  3. The Constitutional Convention rejected states awarding electors by state legislatures or governors (as the majority did for decades), or by Districts (as Maine and Nebraska now do), or by letting the people vote for electors (as 48 states now do).

    Anyone who supports the current presidential election system, believing it is what the Founders intended and that it is in the Constitution, is mistaken. The current presidential election system does not function, at all, the way that the Founders thought that it would.

    Supporters of National Popular Vote find it hard to believe the Founding Fathers would endorse the current electoral system where 38+ states and voters now are completely politically irrelevant.
    10 of the original 13 states are politically irrelevant now.

    Policies important to the citizens of the 38 non-battleground states are not as highly prioritized as policies important to ‘battleground’ states when it comes to governing.

    “Battleground” states receive 7% more presidentially controlled grants than “spectator” states, twice as many presidential disaster declarations, more Superfund enforcement exemptions, and more No Child Left Behind law exemptions.

    Today, any state legislature simply could enact a law to just appoint their electors directly, ending their citizens voting in presidential elections

  4. Constitutionally, the number of electors in each state is equal to the number of members of Congress to which the state is entitled, while the 23rd Amendment grants the District of Columbia the same number of electors as the least populous state, currently three. No Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

    Now, Each political party in each state nominates a slate of candidates for the position of presidential elector. This is most commonly done at the party’s congressional-district conventions and the party’s state convention during the summer or early fall. It is sometimes done in a primary.

    Typically, each political party chair certifies to the state’s chief election official the names of the party’s candidate for President and Vice President and the names of the party’s candidates for presidential elector.

    Under the “short presidential ballot” (now used in all states), the names of the party’s nominee for President and Vice President appear on the ballot.

    When a voter casts a vote for a party’s presidential and vice-presidential slate on Election Day (the Tuesday after the first Monday in November), that vote is deemed to be a vote for all of that party’s candidates for presidential elector.

    Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1
    “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

    Under statewide “winner-take-all” laws, , not mentioned, much less endorsed, in the Constitution now used in 48 states, the presidential-elector candidates who receive the most popular votes statewide are elected.

    In district winner states, the candidate for the position of presidential elector who receives the most popular votes in each congressional district is elected (with the two remaining electors being based on the statewide popular vote).

    In states enacting the National Popular Vote bill, when enacted by states with a majority of the electoral votes—270 of 538, all of the 270+ presidential electors from the enacting states will be supporters of the presidential candidate receiving the most popular votes among all 50 states (and DC).

    Each state’s presidential electors travel to their State Capitol on the first Monday after the second Wednesday in December to cast their votes for President and Vice President.

    The Electoral College will continue to elect the President.

  5. State-by-state winner-take-all laws to award Electoral College votes, were eventually enacted by 48 states, using their exclusive power to do so, AFTER the Founding Fathers wrote the Constitution. Now our current system can be changed by state laws again.

    The constitutional wording does not encourage, discourage, require, or prohibit the use of any particular method for awarding a state’s electoral vote

    National Popular Vote is based on Article II, Section 1 of the U.S. Constitution, which gives each state legislature the right to decide how to appoint its own electors. Unable to agree on any particular method for selecting presidential electors, the Founding Fathers left the choice of method exclusively to the states in Article II, Section 1
    “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”
    The U.S. Supreme Court has repeatedly characterized the authority of the state legislatures over the manner of awarding their electoral votes as “plenary” and “exclusive.”

    There is nothing in the Constitution that prevents states from making the decision now that winning the national popular vote is required to win the Electoral College and the presidency.

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