DO YOU UNDERSTAND THE NATIONAL POPULAR VOTE
INTERSTATE COMPACT?

2 Mar. 2019

          Recently I’ve noticed Facebook memes and on-line articles that address an interstate compact aimed at circumventing some important aspects of the Constitution that pertain to how the Electoral College is run. The most recent signer of the National Popular Vote Interstate Compact was Governor Jared Polis (D) of Colorado. That news seems to have a lot of people stirred up. I thought it might be time to delve into how these compacts work, what it takes for them to go into effect, and how much concern we need to have regarding this newest one.

          Compacts are addressed in our Constitution in Article 1, Section 10, paragraph 3, which reads in its entirety,

“No State shall, without 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.”

We have many interstate compacts in effect throughout our nation today. States have formed reciprocity compacts to honor each other’s driver and hunting licenses and concealed carry permits. Many states with rivers as borders or that share navigable waterways have compacts that address commercial or drinking water use. There are no constraints on establishing interstate compacts as long as they don’t intrude upon authorities reserved by the federal government.

In the matter concerning us today the Constitution states no state may enter into any kind of agreement with any other state unless Congress votes on and approves it. The implications are that the National Popular Vote Interstate Compact (NPVIC) effort today is established as a proposed compact between the states that agree. It cannot be legally effected until approved by both the US House and Senate according to their normal rules that pertain.

Article 2, Section 1, paragraphs 2, 3, and 4 of our Constitution direct the creation and function of the Electoral College. Paragraph 2 indicates how many electors are allowed in each state and who is entitled to be seated as an elector.   Paragraph 3 provides the process the electors must use in casting and reporting their votes and gives optional cases should there be no clear majority of votes.   Paragraph 3 was amended in 1804 by the Twelfth Amendment due to the acceptance of the political party system we currently enjoy. Recall that at the time of the Constitution there were no political parties and in his time in office President Washington was an ardent foe of the establishment of any form of party system (he was 100% right in his rationale on that subject). Paragraph 4 assigns Congress the responsibility of determining the time and date the Electoral College will meet, with the proviso that it will be applied the same in each state throughout the nation.

The Constitution does not specify how electors are chosen, nor how they can be directed to vote. Each state determines its method of choosing its slate of electors. Each also determines any voting rules that will apply. In most states each party that runs candidates for President will have a proposed slate of electors and the party that has the majority of popular votes in those states will seat its slate. There are states that have a single slate of electors chosen by popular vote or by the state legislature. In several states the electoral vote is directed to be proportional, meaning to the extent possible the electoral votes are apportioned according to the percentage of vote totals of each Presidential candidate. One additional thing is worth noting – in most cases electors are not bound by law to cast their vote at all, much less for a specific candidate. Generally speaking, electors have complete freedom to vote or not vote as they see fit.

The NPVIC is an interstate agreement that would subvert the intent of our founders in establishing the Electoral College system. The current Electoral College is a voting mechanism that ensures small states and small localities all have a say in an election equal to that of larger states and localities. The effect of the NPVIC would be to completely undo that. It would compel member states to cast all their electoral votes for the candidate who garnered the largest nationwide popular vote. Regardless of who won the popular vote within the states or by what margin it would be the national totals that would determine how those electors would vote. It sounds simple, and it is. It’s sort of a genius solution, too, because it retains every aspect of the current Electoral College structure and rules except one.   It has the potential of completely nullifying the popular will of a member state.

Currently 13 states have enacted laws making them members of the NPVIC. Those 13 are: Maryland. New Jersey, Illinois, Hawaii, Washington, Massachusetts, District of Columbia, Vermont, California, Rhode Island, New York, Connecticut, and Colorado. Note that for the purposes of general elections Washington D.C. is treated as a state. If you examine the voting patterns of the 2016 general election you’ll find that each of the 13 listed was a “blue” state that year. There are a total of 538 electors nationwide. Because a clear majority of all electors is required by the Constitution to elect a President, a winner must have at least 270 electoral votes to prevail. The 13 states signed up for the compact currently control 181 votes. To move forward to petition Congress for approval of the compact they clearly need to prove they control 270 electoral votes or greater. If their numbers grow to the point they can prove that level of control legislative bills would be registered that would eventually go to a floor vote in both chambers of our Congress. There is some debate at this point on exactly what vote would be needed to prevail. One camp believes the compact would be subject to the ¾ rule that applies to a proposal for a Constitutional amendment.   That camp also believes the NPVIC has the Constitutional option of any other proposed Constitutional Amendment, to be voted on by all the states and enacted only when ¾ of them approve. Others (and I believe this is the correct position) hold that because the compact only involves matters currently reserved under the states’ own reserved powers the compact has no effect on the Constitution, therefore only requires a simple majority vote in either chamber to be approved and enacted into federal law.

If you’ve followed along closely you should understand what the NPVIC does and what it may take for it to become a legal and legally binding compact. Now, I believe you’re ready for the bottom line assessment on this.

The question on everyone’s mind is, “Should I be worried about this?” My advice is, “Always!” But, in practical terms you need to look at the 2016 electoral map and understand Hillary Clinton prevailed in 19 states and split Maine. She had 232 electoral votes to Donald Trump’s 306.   Even if a worst-case scenario plays out there seems to be no way the NPVIC can get its numbers up to the level needed to push the compact into Congress or to a nationwide vote anytime soon. In 2007 the NPVIC was introduced as bills in 42 states. That year Maryland was the first and only state to approve it. Since 2007 all the other states that hadn’t introduced NPVIC legislation have done so. Counting D.C. as a state that means the entire country has voted on this compact and so far only 13 have passed it. I’m no odds-maker, but I can’t envision a scenario that makes this any threat in 2020. My advice to always worry is still germane, though. Americans have a bad habit of doing very strange things when it comes to politics. I can’t see where 2020 is a problem, but anything goes after that. Overall I say don’t worry much for the 2020 election, but watch the political landscape very closely this year and every year after. If America doesn’t turn itself around and embrace a new direction, one toward greater conservatism, all bets are off. In 2024 we may just see a scenario where the NPVIC is in effect. If that’s the case, you should understand the progressive Democrats will have found their way to own the country, quite possibly forever.

My recommendation is for each of you to educate everyone you know so they understand what the NPVIC is and what it would do if ever legalized and enacted. Send information to all you know so they are fully aware of this attempt to undercut our republic and turn it more toward a complete democracy. Everyone needs to understand that the NPVIC has the potential to make pure democracy a reality and to make the states controlled by the 20 largest urban centers the only places in the country that will matter in any future election. Anyone not living in one of those 20 places will in effect be disenfranchised. Their votes will never matter again. Their way of life, ethics, beliefs, needs and wants will never matter again. If the NPVIC becomes a reality everyone living outside those urban centers will no longer be citizens. They will be subjects.

In Liberty,
Steve