National Popular Vote Debate

On March 1, 2019, as a part of Centennial Institute’s program for CPAC, I was a part of a debate on the National Popular Vote, which the Colorado legislature just passed. Here is a link to the debate and the written comments I prepared for the debate:

For the sake of brevity I will call the National Popular Vote Compact the NPV.

Senator Gardner and I both oppose this bill. He considered the bill this year and I had the opportunity to hear this very same issue in 2007 in the House State Affairs Committee. That year it was called Senate Bill 46, which had passed the Senate. However, in the House committee, with seven Democrats and four Republicans we defeated the measure with a vote of 1-10. In 2007 this bill was killed with a strong bi-partisan vote. I wish I could say the same for this year.

The NPV will radically overturn the system we have for electing the President and it has the potential of doing much more damage to our civil government.

It severely upsets the balance of power between the states and the Federal government. It will deny all states not in the compact any meaningful role in selecting the President.

The compact violates several parts of the Constitution and, if it is implemented it may lead to a significant constitutional crisis.

I submit that the NPV could become a grave threat to the union of our republic.

In the current system the states elect the President, with the NPV individual state authority and influence will be severely diminished. Consequently the NPV will concentrate more power into the Federal government.

The NPV also violates several parts of the Constitution: Article I, Section 10, Article II, Section 1, Article V, and the Twelfth Amendment.

The proponents argue that in Article I each state is given the authority to determine how their electors are selected and all the NPV does is direct that state to ignore the will of their own citizens and follow the national vote totals. But, they are using this clause to completely destroy the reason the Electoral College system was created, which is to empower the states to elect the President.

The NPV is designed to become effective if a bare minimum of 270 electoral votes are controlled by the states participating in the compact. This would force at least 20-30 additional states who never adopted the compact to live under this new rule.

Additionally, the NPV does not require the approval of Congress, even though this is a constitutional mandate for all state compacts that affect the balance of powers between the states and the Federal government.

I conclude my opening remarks with bad news and good news.

First the bad: If the NPV is implemented, here is how it will play out. It will be challenged by some states not a part of the compact. I find it hard to believe the court will uphold the compact, but in either case the decision will cast a long, dark shadow of distrust on all succeeding presidential elections. We will have two separate, mutually exclusive mechanisms for electing the President, each endorsed by a large number of individual states. This will further divide the union into two distinct camps. In these times of razor sharp political conflict we cannot afford to fan these flames of disagreement and distrust.

Now the good news: There is a better way. If the proponents of the NPV are so convinced that the President should not be selected by the states, don’t try to work around the Constitution, amend it, as it is established in Article V. Go through Congress or go through the states directly, Article V provides both possibilities. Our Founders wisely knew that such dramatic changes needed to be a high bar, requiring a super majority of agreement.

The NPV Compact is an illegal end run around the principles and the process of our government. Please abandon this foolish and dangerous path. I welcome an honest and healthy debate on refining our civil government, but don’t tear down the authority of our Constitution. Work within that brilliant foundation which has guided our nation for nearly two and a half centuries.

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