By Edwin Cooney
If you are one of those who would like to see the president elected via popular vote rather than the archaic electoral system which we have been using since the days of the glory of “the Founding Fathers,” hope may be just over the horizon!
Since 2007, a number of states have been considering -- and ten of them have adopted -- what is called the National Popular Vote Interstate Compact or NPVIC. It was born in the fertile mind of Northwestern Law Professor Robert Bennett in the wake of the 2000 presidential electoral fiasco in Florida that ultimately sent George W. Bush to the White House even though he’d lost the popular vote to Albert A. Gore by 539,837 ballots.
Four times in our history (in 1824, 1876, 1888 and 2000), the man who took the presidential oath of office the following year came in second -- in defiance of the popular will! The reasons are varied. However, whenever there may be an immediate and workable solution to a 228-year-old political and social malady at hand, we ought to examine it and its possibilities.
The compact is very simple. Ten states and the District of Columbia have signed this agreement which will require them to automatically give their electoral votes to the winner of the national popular vote despite how the popular vote comes out in their separate states. At present, the states that have passed the compact have 165 electoral votes, about 61 percent of the 270 majority electoral total.
Iconoclastic citizens and politicians have been working throughout our 228 years as a federal republic to alter the constitution and thus provide for the popular election of the President of the United States. To amend the Constitution, a two thirds vote is needed in both houses of Congress followed by three fourths of the states. However, scholars believe they’ve discovered a sufficient loophole in the Constitution itself to bring about significant change without having to amend that document.
Article II, Section 1, Clause 2 of the Constitution reads as follows:
“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…”
In other words, the states, not the federal government, choose the method of selecting presidential electors. Originally, a number of states chose their presidential electors through the legislatures thus limiting or even bypassing altogether the popular vote within their states. That all began to change in the 1830s during the era of Andrew Jackson and the expectation of universal white suffrage. Property qualifications and racial qualifications (but in just a few states) were eliminated. (Note: when Wyoming was admitted into the union in 1890, it allowed women to vote in both state and national elections.) Thus, historically, the states have largely determined who votes and what procedure is used to elect our presidents.
Here’s the outstanding irony: the states giveth and the states taketh away! One of the most continuous threads in American history is the insistence on states’ rights. Just as ten states and the District of Columbia are leading the way to passage of this National Popular Vote Interstate Compact, the states’ interests might be the major factor should the compact fail.
Back in 2007, Governors Arnold Schwarzenegger of California and Linda Lingle of Hawaii vetoed their state’s passage of the compact on the grounds that it would decrease the powers and prerogatives of their states.
Those vetoes brought to mind an argument against abolishment of the Electoral College that I heard shortly after the 2000 presidential election debacle. Someone was comparing the state of Wyoming which contained less than a million voters with that of Florida with its 25 plus million voters. Wyoming has only three electoral votes or one-eighth of Florida’s 25 electoral votes. However, if you compare the two states by population, Wyoming has an even smaller percentage of popular votes than it does of Electoral College votes. Thus the argument is that if Wyoming legislators approve passage of this compact or even a constitutional amendment eliminating the Electoral College, they would be committing a cardinal “political sin” by downgrading the value of their own constituency. Former Delaware Governor Pierre du Pont has argued that the NPVIC is a popular state power grab and that presidential candidates will still primarily visit states with the most votes.
Another possible block to passage of the Compact is Article I, Section 10, Clause 3 of the Constitution which prohibits states to enter into an agreement or compact with another state. However, proponents of the NPVIC point out that the Supreme Court, beginning with Virginia v. Tennessee 1893 and in several cases since, has ruled that this provision of the Constitution is only applicable when the Federal prerogative is being challenged.
As in almost every instance of political or social breakthrough, there are legitimate contradictory factors to ponder. However, according to recent polls, approximately 78 percent of Democrats, 60 percent of Republicans, and 73 percent of independent voters, there is a belief that the popular vote should henceforth elect the President of the United States.
Passage of the National Popular Vote Interstate Compact or something like it may well be essential to our very survival given the unsettling political and social forecast of the 2016 election.
After all, passage of the NPVIC could make it possible to elect a sensitive, capable, broadminded president largely free of, but nevertheless open to, the very best concepts and ideas flowing from our two traditional parties. The NPVIC could well be the factor that “preserves, protects, and defends” not only the peoples’ Constitution, but the safety, prosperity and wellbeing of the people themselves!
RESPECTFULLY SUBMITTED,
EDWIN COONEY
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