The National Popular Vote Interstate Compact

 

Colorado voters approved Proposition 113 which now makes Colorado the 15th member state to join the National Popular Vote Interstate Compact. For those that are unaware of the National Popular Vote Interstate Compact (NPVIC), it awards the electoral college votes of the states in the compact to the Presidential candidate that wins the national popular vote. This is drastically different than how the votes are allocated today. The Constitution gives each state the number of electoral votes equal to the total number of that states senators (2) and representatives in Congress that is determined by population. The winner of the Presidential election is the candidate who receives the majority of the electoral colleges votes or 270 electoral college votes, regardless of which candidate wins the national popular vote. If the NPVIC succeeds in its attempt to change the way Presidents are elected, then the balance of power among states will be altered. For instance, in Colorado, 9 electoral college votes were awarded to Vice President Biden of the Democratic Party and this counted toward his progress in obtaining 270 electoral college votes, but if the NPVIC were in place and President Trump was to win the National Popular Vote, Colorado’s electoral college votes would go toward President Trump even though the majority of Coloradans voted for Joe Biden.

I find this to strip away at small state protection and individual state voices. This is because small states have a smaller population and with the current system in place, small states matter. As we can see now, the election is extremely close and could come down to a few small state with relatively low electoral college votes such as Nevada or Arizona. With the NPVIC, their voices wouldn’t matter as much because the candidate that has the support of the states with majority of the population say like California, Texas and New York, would consistently determine the outcome of the election every time, while smaller states with small populations wouldn’t have as much as an impact on the overall national popular vote. Over the years, Presidential candidates have been able to win the election despite winning the National popular vote and this is because of the current balanced system has allowed for smaller states to have more power in determining the election.

 I question the constitutionality of the NPVIC because Article 1, Section 10, Clause 3 of the Constitution reads: “No State shall, without the Consent of Congress . . . enter into any Agreement of Compact with another State, or with a foreign Power.” As of right now the NPVIC is trying to subvert the Constitution as they have not gotten approval from Congress, and this may be because they do not believe such a compact would get an amendment ratified to end the Electoral College. Advocates of the NPVIC point out the congressional approval of the NPVIC is not necessary and reference U.S. Steel v. Multistate Tax Comm’n (1978) in which the Supreme Court held that Congress should only approve a compact if it increases state power and decreases federal power. However, I find this to be false because the NPVIC would eradicate the role of the U.S. House of Representatives in the electoral process and change the presidential election system without Congress. This to me seems like states would have more power at the expense of federal power. Additionally, another reason why the claim that the NPVIC does not need congressional approval is false is because the US Steel case suggests that compacts require congressional approval whenever they impact the federal structure. The constitution recognizes reserved and delegated powers. Reserved powers are those stated in the Tenth Amendment; power not granted to the US by the Constitution or prohibited to the states, are reserved to the States or the people. Delegated powers are those granted and stated in the Constitution. In James Madison’s words, Reserved powers are “numerous and indefinite” while delegated powers are “few and defined”. A state’s power to enter a compact is a reserved power, however in terms of delegated powers, the states have a delegated power to decide how electors are appointed. In other words, states have a constitutional obligation to choose an election system in accordance the electoral college system’s original purpose and design as stated in the 12^th amendment.

James Buchanan suggests that we look at the Constitution as a “contract”, it is apparent that proponents of the NPVIC does not want to follow this contract for various reasons mentioned above. They do not want to eliminate the electoral college in ways that are consistent with the Constitution. Buchanan makes the distinction in “The Reason of Rules” that there are differences between “rules as constraints and action within constraints but at the same time embodies the notion that rules of social order are not artifactual creations subject to change.” He further mentions, “[i]n this perspective, rules change slowly during the evolution of society. Although change takes place in the basic structure, it does so only through an organic evolutionary process. Hence, ‘reform’ of the basic rules (of the constitution, broadly defined) is internally contradictory. The ordering function of social rules operates only because they are unchangeable in any directed sense.” Another idea mentioned by Buchanan is that the “constitution” is a structure of institutions or rules that involves the protection of natural rights and “the constitution may be modified, either in the direction of a closer correspondence with the desired protection of natural rights or in the direction of a further divergence from such idealized protection, there can be no change in the definition of the set of rights as such.” It could be argued that the NPVIC is not a natural or organic evolutionary process in changing the rules, plus there seems to be interior motives as all member states of the NPVIC are democratic run states, so this change is directed toward a desired outcome. Additionally, this change directly impacts the natural rights of citizens to vote which is also inconsistent with altering the rules of the game.