The Left’s Most Serious Attack on Federalism [Updated]

Much of the Left’s current wish list–the Green New Deal, reparations–is fantasy. Those proposals are purely for political effect, and aren’t going anywhere. But there is an important exception: there is a serious risk that the Left will succeed in effectively abolishing the Electoral College.

That will never be done via constitutional amendment, of course. The small states, a majority, won’t vote for it. But liberals are promoting an Agreement Among the States to Elect the President by National Popular Vote. This is how I described the proposed compact here:

States that subscribe to it pledge to choose their electors not according to the wishes of that state’s voters, but rather in obedience to the “national popular vote.” The Agreement goes into effect when it has been enacted by states having a majority of votes in the Electoral College.

What this means is that Minnesota will outsource its voters’ rights to residents of larger, sometimes predominantly one-party states like California, New York, Texas and Illinois. Minnesotans may vote for candidate X, but their votes won’t count–or at least, won’t have any particular significance in casting Minnesota’s votes for president. If enough voters in other states prefer candidate Y, then the votes of Minnesotans will be entirely disregarded, and the state’s electoral votes will go to candidate Y.

Constitutionally, there is no such thing as a “national popular vote.” It is essentially a journalistic construct. Still, it is easy to understand the liberal case for electing our president by a national popular vote. They consider it a straightforward application of “one man, one vote.” Of course, what is really driving the effort is the fact that the Democratic Party faces a serious structural problem: its voters are concentrated in a relative handful of urban areas.

What is the case against the National Popular Vote agreement?

1) It is an attack on federalism–the structure of the Constitution itself. The United States is just that, a union of states, not of atomized individuals. The states are important. Under the Constitution, all powers not delegated by the states to the federal government remain with the states and their subdivisions, local government units. The fact that a presidential candidate carries, say, Michigan is important.

Liberals have long disliked federalism and would like to erode the powers of the states, which often stand in the way of their grand schemes. Ideally, for liberals, the states would cease to exist except as administrative units of the central government. Effectively getting rid of the Electoral College would be an important step toward this goal.

2) The Electoral College promotes consensus. In most presidential elections, the national vote will be close, within a few percentage points. In 2012, to take just one example, Barack Obama won only 51% of the popular vote. But in the Electoral College, he dominated, winning 332 to 206. The Electoral College generally will transform a narrow presidential victory into a mandate. It minimizes controversy and encourages acceptance of the presidential election’s result.

3) Electing the president by a “national popular vote” would be an invitation to voter fraud. In recent years, voter fraud has become an increasingly important part of the Democratic Party’s playbook. These days, we have an Election Season, often lasting a month or more, rather than an Election Day. We have “ballot harvesting” that, in 2018, allowed the Democrats to tip the scales in close House elections.

Voter fraud is a huge problem, but there is a firewall in presidential elections: fraud can only swing one state. Thus, when Democratic precincts in Philadelphia report 100% turnout, including “voters” who have died or moved away, ballot box stuffing can help a presidential candidate carry Pennsylvania, but it won’t affect the outcome in Texas or California. Under a National Popular Vote regime, the incentive to commit fraud, anywhere and everywhere, will be immense. This is not a temptation that the Democratic Party can be expected to resist.

So the National Popular Vote Agreement is a bad idea. But is there a serious likelihood that it will go into effect? And will it work, i.e., is it constitutional?

The risk is serious indeed.

The popular vote movement is spreading like wildfire across the country. On Thursday, New Mexico became the 14th state to join the National Popular Vote Interstate Compact, joining California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maryland, Massachusetts, New Jersey, New York, Rhode Island, Vermont, Washington state and the District of Columbia. The states, which represent a whopping 189 electoral votes, have agreed to shift their voting allocations once the group amasses 270 votes, the threshold needed to decide a presidential election. If Ohio decides to join the Compact, the state’s 18 electoral votes would push that number to 207. A few large states or several small states could easily put them over the top.

My state, Minnesota, is another where National Popular Vote legislation has been introduced. My organization is opposing it, and I don’t think it will pass this year, only because the Republicans have a narrow three-vote majority in our state’s Senate. If that changes in 2020, Minnesota will most likely add its ten electoral votes to the National Popular Vote initiative. The same dynamic is in play in other states.

If enacted, will the National Popular Vote Agreement work as intended? I think so. Some argue that it is an unconstitutional end run around Article II of the Constitution, but Section 1 of Article II says:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress….

I don’t see any reason why a state’s legislature can’t direct that the state’s Electors be selected based on a hypothetical national popular vote, which is what the Agreement does.

If there is a silver lining to this dark cloud, it is the fact that the Agreement, unlike a constitutional amendment, can be rather easily undone. What will happen in a given state the first time that its electoral votes are cast for a candidate that the state didn’t vote for? When, for example, a Democrat carries California by 30 points, but all of California’s electoral votes are cast for a Republican who narrowly carried the “national popular vote”? I suspect that “one man, one vote” principles would rapidly fly out the window.

In the meantime, however, the Agreement Among the States to Elect the President by National Popular Vote represents a real threat to our federalist system.

UPDATE: A reader makes an interesting point that I hadn’t considered:

One issue that’s never addressed in regards to the Constitutionality of the so-called National Popular Vote compact is the limit imposed by Art. I section 10 paragraph 3. To wit, any compact or agreement between the states must be ratified by Congress. There’s no way such ratification would pass in the Senate. Any declaration that Candidate X was President Elect could be challenged in the courts on this basis.

Article I, section 10, paragraph 3 reads in part:

…no state shall, without the consent of Congress, enter into any agreement or compact with another state.

That language is, however, plainly overbroad. States have entered into an enormous number of agreements and compacts, most of which have not been approved by Congress. The Supreme Court articulated limiting principles in Virginia v. Tennessee:

The Constitution provides that

“No state shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another state or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”

Is the agreement, made without the consent of Congress, between Virginia and Tennessee, to appoint commissioners to run and mark the boundary line between them within the prohibition of this clause? The terms “agreement” or “compact,” taken by themselves, are sufficiently comprehensive to embrace all forms of stipulation, written or verbal, and relating to all kinds of subjects — to those to which the United States can have no possible objection or have any interest in interfering with as well as to those which may tend to increase and build up the political influence of the contracting states so as to encroach upon or impair the supremacy of the United States or interfere with their rightful management of particular subjects placed under their entire control.

There are many matters upon which different states may agree that can in no respect concern the United States.
***
If, then, the terms “compact” or “agreement” in the Constitution do not apply to every possible compact or agreement between one state and another, for the validity of which the consent of Congress must be obtained, to what compacts or agreements does the Constitution apply?
***
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.

A threshold question is how to read the provisions of Article I, Section 10, and Article II, Section 1, together. Arguably, Article II’s unqualified delegation of the manner of selecting electors to the states is not limited by the terms of Article I, Section 10.

Assuming nevertheless that Article I, Section 10 would be read as a limitation on Article II, Section 1, I haven’t undertaken research to determine whether subsequent cases have shed any further light on the “compact” clause. Assuming the Virginia v. Tennessee formula still holds, it seems clear that the popular vote agreement does not “encroach on or interfere with the just supremacy of the United States,” since the Constitution empowers states to choose presidential electors “in such Manner as the Legislature thereof may direct.”

There is another possible issue: read literally, the Virginia opinion refers only to agreements that “may tend to increase and build up the political influence of the contracting states” to the disadvantage of the federal government. I think it is clear that the Popular Vote Agreement doesn’t do that. But what if it “tend[s] to increase and build up the political influence of the contracting states” to the disadvantage of the other states? At first look, that isn’t what the Agreement does. On the contrary, the states that enter into the Agreement arguably are disadvantaging their own voters and empowering non-contracting states. In effect, they are outsourcing their presidential votes to all 50 states. On the other hand, states that are not parties to the Agreement might argue that they are entitled to the constitutional process for electing a president and thus their “political influence” has been diminished by an agreement to which they are not parties.

On balance, based on only partial research, I doubt that the “compact” clause would render the Popular Vote Agreement unconstitutional. However, nothing remotely like the Popular Vote Agreement was before the Supreme Court in Virginia v. Tennessee. Given that the obvious purpose of the Agreement is to negate the method of electing a president set forth in Article II, and given the broad language of Article I, Section 10, paragraph 3, a Supreme Court reviewing the validity of the Popular Vote Agreement–likely in the aftermath of a disputed presidential election–would not be bound by the phrases used by the Court in 1893. It might see its way clear to using the “compact” clause to negate the Popular Vote Act.

This is a nightmare scenario, however. It could lead, for the first time in American history, to serious doubt as to who is the rightful president.

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