Tax hikes, gun grabs, more abortions — these are some of the priorities of Gov. Abigail Spanberger (D-VA) and the other Virginia Democrats now in full control of the Commonwealth. So is hijacking the Electoral College, which they advanced when Spanberger signed National Popular Vote interstate compact legislation.
Every blue state has now joined the compact, which attempts to nullify the Electoral College without amending the U.S. Constitution. If this sounds illegal, it probably is. But the strategy is to push it as far as possible, destabilizing future elections and discrediting the constitutional process. Which is to say, NPV is dangerous even if state and federal courts eventually strike it down.
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The American Founders considered and rejected a direct national election because those in small states worried about being ignored. It was clear even in 1787, when the Constitution was written, that big states and big cities would have massive power in a national popular vote. The Founders believed in checks and balances, and they crafted a presidential election process to uphold those principles.
VIRGINIA JOINS THE ‘NATIONAL POPULAR VOTE’ ELECTORAL SCAM
The Constitution, in Article II and the Twelfth Amendment, creates a two-step election process for president and vice president. Each state gets a number of presidential electors equal to its representation in Congress (two senators plus its number of representatives). Each state’s legislature determines how to choose those electors. At the beginning, some legislatures chose electors themselves, but very quickly, states began to hold elections.
Today, every state elects its presidential electors. While most states elect them all statewide, in Maine and Nebraska they elect one in each congressional district and the remaining two statewide. Presidential electors then cast their state’s electoral votes for president and vice president.
This two-step system checks the power of the biggest states and cities, which creates a balance of power. To win the White House, candidates must win many states, which takes a massive national coalition just to have a chance.
Even when President Bill Clinton won in 1992 with just 43% of the popular vote, he still won 32 states, including liberal strongholds like Massachusetts and California, but also conservative-leaning states like Georgia, Louisiana, and Montana. And when President Donald Trump won in 2016 with nearly 46% of the popular vote, he did it by smashing through the Democrats’ so-called “blue wall” and winning 30 states.
A national popular vote could allow a candidate to win without a national coalition. The simplest form of a popular vote — a one-step, plurality election — would encourage more candidates to run, including those with only regional support, in hopes of winning a splintered election with perhaps just 25% or less of the vote. Because of this, no major modern democracy uses this process at the national level.
The NPV compact would bring this process to the United States through a back door. NPV states commit to choosing presidential electors based on the nationwide, not state, popular vote. In other words, even if a Republican won the most votes in Virginia, if a Democrat won more votes nationwide, the Democrat would get all of Virginia’s electoral votes. The compact takes effect when joined by enough states that they control 270 or more electoral votes, the majority needed to control the election outcome.
With NPV, there is no runoff (even France has this) and no provisions for recounts or challenges. Every dispute is left to state and federal judges. So what might judges say about NPV’s end run around the Constitution? There are four reasons why the compact is likely to fail.
First, the Constitution says clearly: “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State.” NPV lobbyists claim it can take effect without the Consent of Congress due to old case law, but on a matter this important, the Supreme Court is likely to enforce the constitutional requirement.
Second, the 7-2 part of the Supreme Court’s opinion in Bush v. Gore pointed out that basic election fairness requires a uniform set of rules. Yet NPV would combine votes from different states with widely different rules about every aspect of the election process: how candidates get on the ballot, whether there is voting by mail or early voting, how ballots are counted, and, yes, how recounts work.
Third, the purpose of the Electoral College clauses in the Constitution is well understood. There is no question of original intent here — the Founders rejected a national popular vote and opted for a state-by-state process. No serious Supreme Court justice will let a constitutional power be used to destroy its constitutional purpose.
Finally, many state constitutions create a residency requirement for voters in state elections. When a legislature creates an election to choose the state’s presidential electors, its constitution may not allow it to include votes from other states.
AMERICANS ARE MOVING IN GREAT NUMBERS, AND SCRAMBLING THE ELECTORAL COLLEGE MAP
NPV is a blatant partisan power grab, passed only in blue states in hopes of helping future left-wing candidates. The NPV campaign wants to undo the constitutional compromise that puts a check on the power of the biggest states and cities.
The right way to change the Constitution is, of course, to change the Constitution, not to use an interstate compact to manipulate it. Thankfully, red and purple states have consistently rejected NPV. Should it ever take effect, courts are likely to shut NPV down once and for all.
Trent England is the founder and executive director of Save Our States, an attorney, and the author of Why We Must Defend the Electoral College.
