Sen. Ted Cruz of Texas panned an effort by Democratic majority states to give their Electoral College votes to the presidential candidate who wins the popular vote.
Cruz discussed the National Popular Vote Interstate Compact during a question-and-answer session Thursday during an appearance at the 2020 Conservative Political Action Conference in National Harbor, Maryland.
Michael Knowles, a conservative commentator at the Daily Wire, asked Cruz and Republican National Committee Chairwoman Ronna McDaniel a question from online CPAC viewers that dealt with Virginia’s effort to award its delegates to the popular vote winner in the presidential election.
The NPVIC is an agreement among a group of state (15 so far) and Washington, D.C., to award all their electoral votes to whichever presidential candidate wins the national popular vote. Critics call it a thinly veiled effort to circumvent the Electoral College. In two of the past five presidential elections, 2000 and 2016, the popular vote winners (both Democrats) differed from the Electoral College victors (Republicans), who became president — President George W. Bush and President Trump, respectively.
Virginia, where Democrats in 2019 won full control of state government, is the latest state to consider joining the compact.
“The question is: Is the popular vote compact … a violation of Article 1, Section 10 [of the Constitution]?” Knowles asked Cruz.
“Probably,” Cruz responded, while later noting it is an open constitutional question open to litigation. However, Cruz then expressed his disapproval of the agreement.
“You’re seeing states, Virginia was the latest one, that voted to give their electoral votes to whoever wins the national popular vote. Which means if you’re a citizen of the Commonwealth of Virginia, your vote doesn’t matter anymore,” said Cruz. “You’re going to vote for whoever California and New York vote for,” he added, prompting agreement from McDaniel.
“I think it is devastating for our country to get rid of the electoral vote. This is what the founders intended — for every state to have representation,” said McDaniel, later advising that the audience “stay tuned because the RNC is not going to let this go, and there is something coming.”
Cruz, a Harvard Law School graduate and clerk to Supreme Court Chief Justice William Rehnquist, volunteered his legal services in Florida in late 2000, assisting the Bush campaign in the contentious state recount efforts. Though he was only a junior campaign aide at the time, Cruz wrote in his book A Time for Truth that he witnessed the end of the hard-fought legal battles that ended in Bush’s victory.
Some constitutional scholars agree with Cruz’s assessment about the unconstitutionality of the popular vote compact.
“In my view, it is unconstitutional for states to appoint electors against the wishes of their own state electorate but in accordance with the will of voters outside the state,” wrote Norman Williams, dean and professor at Willamette University, in the Harvard Law Review.
“The right way to go about jettisoning the Electoral College is to adopt an amendment to the Constitution abolishing the college and providing for the direct election of the president based on the national popular vote. Yes, that may be politically difficult, but it would be far preferable for supporters of the NPVC to put their political muscle into that effort than the adoption of the NPVC, which would usher in a far more politically fraught and litigious era of presidential elections.”
Seth Masket, a political science professor at the University of Denver, also agreed that the compact would be unconstitutional but wrote that other “movements” have attempted to “violate the founders’ vision without going through the processes of amendment.”
“Some critics have complained that this would essentially change the Constitution and violate the founders’ vision without going through the processes of amendment. And, well, yes, it would. But it’s hardly the first movement to do this. Indeed, the way that the Electoral College is currently implemented and has been practiced over the past two centuries bears little similarity to the way the founders originally described it,” Masket wrote in an opinion article.
